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Federal Register / Vol. 86, No. 236 / Monday, December 13, 2021 / Rules and Regulations
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validity; or their visa may have been lost or mutilated. Depending on the circumstances, a repeat immigrant visa applicant may be required to submit a new Form DS260/DS230, in which case the applicant must submit any required supporting documents and must pay a new fee.23 This TFR makes no changes to form or fee requirements.
As set forth in 22 CFR 42.62 and 42.67, immigrant visa applicants ordinarily must appear in person before a consular officer to execute their application and subscribe to the contents of their application under oath, and they must be interviewed by a consular officer.
The requirement for immigrant visa applicants to be interviewed by a consular officer and to execute and affirm the information presented on the Form DS260/DS230 application before a consular officer provides benefits to the Department and applicants alike. Consular officers have an opportunity to assess the credibility of immigrant visa applicants when they appear in person, while visa applicants are provided an opportunity, if necessary, to correct, any information on their application, which the applicants sign under penalty of perjury. Applicants could face civil and criminal consequences for material misrepresentations. However, there is reduced benefit from requiring the recipient of a previously approved immigrant visa to return to the consular post to execute their application in person, take an in-person oath, and be interviewed for an identical or substantially similar application, and those actions would significantly strain consular resources. Accordingly, in light of current resource considerations due to the COVID19 pandemic, the Department is temporarily permitting consular officers to waive a second personal appearance and interview at the consular officers discretion.
Local conditions such as medical infrastructure, COVID19 cases, emergency response capabilities, and restrictions on leaving home may affect when and the extent to which Department facilities can provide routine services, including scheduling appointments and the ability of applicants to obtain documentation and medical screening appointments. The Departments embassies and consulates 23 22 CFR part 42 governs immigrant visas. 22
CFR 42.71 governs immigrant visa fees. 22 CFR
42.72 sets the maximum immigrant visa validity period at six months, and 22 CFR 42.74 addresses certain new, replacement, and duplicate visas.
Individuals seeking another visa pursuant to 22
CFR 42.74 are not required to submit a new application and are not impacted by this TFR.

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are implementing safeguards to keep staff and customers safe, including implementing physical distancing in waiting rooms, scheduling fewer interviews at a time, frequently disinfecting high touch areas, and following local health and safety regulations. The Department is facing a high demand for visa services, and the policy announced in this TFR will help allocate scarce resources to areas where personal appearances by and interviews of visa applicants are relatively more beneficial.
The Department conducted a database query to determine how many individuals may benefit from this rule and determined that nearly 49,000
individuals were issued immigrant visas between August 4, 2019 180 days before the first Presidential Proclamation suspending entry into the United States of certain immigrants in relation to the COVID19 pandemic and September 30, 2021, and have not yet sought admission. Of the individuals issued immigrant visas between August 4, 2019, and May 31, 2021, over 11,000
did not seek admission before their immigrant visas expired. Additionally, according to the Departments database query, at least 244 individuals were refused admission into the United States at a port of entry between August 4, 2019, and September 30, 2021, though it is not certain how many of those refusals of admission were due to suspensions of entry relating to the COVID19 pandemic. Some individuals in this population may be eligible to benefit from this rule.
This TFR applies to a narrow category of immigrant visa applicants. To qualify for the discretionary in-person waiver, an applicant must:
1 Have been issued a U.S. immigrant visa on or after August 4, 2019;
2 Seek an immigrant visa in the same classification and pursuant to the same approved petition as the previously issued immigrant visa, or an immigrant visa pursuant to the same approved petition as the previously issued visa but in a different classification because it was automatically converted due to the death or naturalization of the petitioner of the previously issued immigrant visa;
3 Qualify for an immigrant visa in the same classification, or another classification as the result of automatic conversion due to the death or naturalization of the petitioner of the previously issued immigrant visa, and pursuant to the same approved petition as the previously issued immigrant visa;
and
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4 Have no changed circumstances that could affect the applicants eligibility for the visa.
This TFR furthers the Departments commitment to the health and safety of consular officers and customers by reducing personal appearances, as appropriate, which could potentially expose consular officers, locally employed staff, applicants, and customers to COVID19. This will also save time and travel expenses for applicants who wish to apply for another immigrant visa after having been unable or unwilling to use their original visa. This TFR is effective until 24 months following its publication in the Federal Register.
III. Regulatory Findings A. Administrative Procedure Act APA
This TFR is being issued without prior notice and opportunity to comment and with an immediate effective date pursuant to 5 U.S.C.
553a1, bA, bB, and d3, the Administrative Procedure Act APA, 5
U.S.C. 551, et seq.
1. Foreign Affairs This TFR involves a foreign affairs function of the United States. In Raoof v. Sullivan, the U.S. District Court for the District of Columbia found that the Department properly exercised the foreign affairs exception under the APA
when it did not engage in formal rulemaking for the J1 nonimmigrant visa two-year foreign residence requirement because the exchange visitor programwith its statutory mandate for international interaction through nonimmigrantscertainly relates to foreign affairs and diplomatic duties conferred upon the Secretary of State and the State Department. 315
F.Supp.3d 34, 44 D.D.C. 2018. The COVID19 pandemic has caused considerable disruption to routine visa services. This TFR will help visa-issuing consular posts around the world allocate scarce resources to areas where personal appearances and interviews are more beneficial relative to other areas, including for the protection of U.S.
national security. The TFR will also protect embassy and consulate staff, visa applicants, and U.S. citizens seeking consular services from potential exposure to COVID19 and the serious illness or death that may result from such exposure.
In many countries, the consular section of the U.S. Embassy is the United States most public-facing direct engagement with a host countrys populace. An outbreak of COVID19
that could be sourced to a U.S. Embassy
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