[Federal Register Volume 63, Number 191 (Friday, October 2, 1998)]
[Rules and Regulations]
[Pages 52969-52970]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26383]


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DEPARTMENT OF STATE

22 CFR Part 41

[Public Notice 2894]


Documentation of Nonimmigrants Under the Immigration and 
Nationality Act, as Amended--Fees for Application and Issuance of 
Nonimmigrant VIsas

AGENCY: Department of State.

ACTION: Final rule.

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SUMMARY: This rule finalizes, with one amendment, the interim rule 
published May 1, 1998, (63 FR 24107) relating to the waiver of visa 
fees for a

[[Page 52970]]

nonimmigrant alien who will be engaged in charitable activities in the 
United States. It also discusses the comments received in response to 
that rule.

DATES: This rule is effective October 2, 1998.

FOR FURTHER INFORMATION CONTACT: H. Edward Odom, Chief, Legislation and 
Regulations Division, Visa Services, Department of State, Washington, 
D.C. 20520-0106, (202) 663-1204.

SUPPLEMENTARY INFORMATION: Only one set of comments was received in 
response to the interim rule. The responder approved of the formulation 
of the requirement relating to the fees being a financial burden but 
had reservations about the other portions of the regulations added as a 
new paragraph (2) to 22 CFR 41.107(c).

Charitable Organizations

    Specifically, the commenter was concerned by the language relating 
to a foreign charitable organization as needing to be recognized by its 
government ``under criteria substantially similar to those of section 
501(c)(3)'' (the benchmark for charitable institutions in the United 
States), to wit, ``To interpret `substantially similar' to mean `almost 
the same', is problematic''. The commenter thus proposes that we apply 
the 501(c)(3) analogy only to institutions in countries which do not 
have any laws recognizing public charities.
    The interim rule analogized to section 501(c)(3) of the Internal 
Revenue Code because it relates specifically to organizations engaged 
in charitable activities, as distinct from other non-profit 
organizations which are also tax-exempt under 501(c). We believe this 
to be a necessary distinction in connection with a provision of law 
designed explicitly to benefit those ``coming to the United States 
primarily for * * * a charitable purpose''. We are willing to accept 
the legal classification by other governments of charitable 
institutions, however, and modify that subparagraph accordingly.

Who Can Benefit?

    The commenter was also concerned that section 41.107(c)(2)(ii) 
``could be interpreted as limiting the charitable activities for 
services `only to the poor and needy' '' (emphasis supplied by the 
commenter). ``The statutory language does not limit the range of 
charitable services to the poor and needy.'' Fear was then expressed 
that this could disqualify providers of nursing services in hospitals 
that treat both those who are poor and needy and those who are not. The 
Department believes that the intent of the provision, informally dubbed 
by its sponsor as ``the Mother Theresa amendment'', did indeed relate 
specifically to assistance to the poor and needy. This belief stems 
directly from the express language of the statute: ``* * * the 
Secretary shall waive or reduce the fee * * * for any alien coming to 
the United States primarily for, * * * direct service or assistance to 
poor or otherwise needy individuals in the United States.'' (emphasis 
supplied) The Department also believes, however, that laws must be 
implemented reasonably, and therefore would not disqualify health-care 
providers who would be working at not-for-profit hospitals that were 
established primarily for the care of the poor and needy but may also 
take in some (not more than 25%) paying patients. Therefore, although 
the regulation will not be amended, the Department will issue further 
guidance to consular officers in this regard.

Location and Duration

    Not least, the commenting organization was concerned by paragraph 
(c)(2)(iii) which requires that the letter requesting the fee waiver 
specify the location in which the alien(s) will be providing charitable 
services. Many religious organizations have widespread service 
locations and the commenter suggested that the sponsoring agency should 
determine when or where the alien(s) would be performing the charitable 
acts. The regulation merely requires that determination to have been 
made and stated in the application.
    The Department must interpret the law, with respect to the issuance 
or refusal of visas, with due respect not only to the letter and intent 
of the provision but also to the practicalities involved. These 
practicalities include both placing the least burdensome impact 
possible on the beneficiary and providing the most effective, least 
bureaucratic methods to ensure that the law not be abused.
    The Department does not believe that this particular commenting 
organization would take advantage of any loosening of the regulatory 
language. Nonetheless, experience dictates that attempted fraud and 
misrepresentation are and always have been rampant with respect to 
entry into the United States. The statute in this case is clear: 
``Subject to such criteria as the Secretary of State may prescribe, * * 
* for any alien coming to the United States primarily for, or in 
activities related to, a charitable purpose involving health or nursing 
care, the provision of food or housing, job training, or any other 
similar direct service or assistance to poor or otherwise needy 
individuals * * *'' (emphasis supplied). The regulation set forth on 
May 1 requires only the assertion of verifiable data regarding the 
specific charitable purpose for which the alien intends to enter the 
United States as a nonimmigrant. In the absence of both a location and 
a proposed duration of stay which are clearly related to the charitable 
purpose for which the alien seeks to enter, compliance with the 
statutory requirement could not be verified at the time of application.
    Therefore, the interim regulation becomes a final rule with one 
amendment as noted above.

List of Subjects in 22 CFR Part 41

    Aliens, Nonimmigrants, Passports and visas.

    In view of the foregoing, the interim rule amending 22 CFR part 41 
which was published at 63 FR 24107 on May 1, 1998, is adopted as a 
final rule with the following change:

PART 41--[AMENDED]

    1. The authority citation for part 41 continues to read as follows:

    Authority: 8 U.S.C. 1104.

    2. Section 41.107(c)(2)(i) is amended to read as follows:


Sec. 41.107  Visa fees

* * * * *
    (i) The organization seeking relief from the fees is, if based in 
the United States, tax-exempt as a charitable organization under the 
provisions of section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 
501(c)(3)); if a foreign organization based outside the United States 
in a country having laws according recognition to charitable 
institutions, that it establishes that it is recognized as a charitable 
institution by that government; and if a foreign organization based in 
a country without such laws, that it is engaged in activities 
substantially similar to those underlying section 501(c)(3), and
* * * * *
    Dated: September 8, 1998.
Mary A. Ryan,
Assistant Secretary for Consular Affairs.
[FR Doc. 98-26383 Filed 10-1-98; 8:45 am]
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