[Federal Register Volume 73, Number 83 (Tuesday, April 29, 2008)]
[Rules and Regulations]
[Pages 23067-23069]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-9336]



22 CFR Parts 40 and 41

[Public Notice: 6202]

Visas: Documentation of Nonimmigrants Under the Immigration and 
Nationality Act, as Amended

AGENCY: Department of State.

ACTION: Final rule.


SUMMARY: This final rule amends the Department of State's regulations 
related to application for a nonimmigrant visa, to offer a completely 
electronic application procedure as an alternative to submission of the 
Form DS-156.

DATES: This rule is effective on April 29, 2008.

FOR FURTHER INFORMATION CONTACT: Charles Robertson, Legislation and 
Regulations Division, Visa Services, Department of State, Washington, 
DC 20520-0106, (202) 663-1202, e-mail (robertsonce3@state.gov).


Why is the Department promulgating this rule?

    The Government Paperwork Elimination Act (GPEA 1998) requires that, 
when possible, Federal agencies use electronic forms, electronic 
filing, and electronic signatures to conduct agency business with the 
public. For this reason, the Department of State developed and 
introduced an electronic application process for nonimmigrant visas to 
eventually replace the current application process, which depends on a 
paper form (Form DS-156, and other forms when required, such as the 
Form DS-157 and Form DS-158). The first step was to offer an electronic 
visa application form (EVAF) as a voluntary alternative way of 
obtaining and preparing the Form DS-156. While the nonimmigrant visa 
applicant could obtain and prepare the Form DS-156 electronically, he 
or she was required to sign the Form DS-156 manually. On October 1, 
2006, the EVAF was made mandatory worldwide wherever possible. Now, 
while the Department will continue to accept the EVAF (electronic Form 
DS-156) where necessary, it proposes to eventually eliminate the Form 
DS-156 entirely and replace it with the Form DS-160, an electronic form 
designed to be completed and signed electronically.

What effect does the electronic application process have on the 
nonimmigrant visa applicant?

    The procedure is the same for the nonimmigrant visa applicant 
except that he or she will not be required to print and sign a form to 
take to the visa interview. All information entered into the Form DS-
160 will be available to the consular officer at the time of the 
interview, thus simplifying the process from the point of the view of 
the applicant. The applicant is required to sign the Form DS-160 

How does the applicant sign the Form DS-160 electronically?

    The applicant will be required to click on the box designated 
``Sign Application'' found within the certification section of the 

How does the consular officer identify the applicant who has submitted 
an electronic application (Form DS-160)?

    Photos, passports and fingerscans collected as part of the 
application process will identify the applicant.

How does the applicant certify that the information in the Form DS-160 
is correct?

    By signing the Form DS-160 electronically (i.e., clicking on the 
``Sign Application'' box), the applicant certifies that the information 
provided is correct.

Is an electronic signature binding on a nonimmigrant visa applicant?

    Yes. The electronic signature (i.e., the click on the ``Sign 
Application'' box) indicates that the applicant is familiar with and 
intends to be bound by the statements contained in the application and 
has answered all questions truthfully, under penalty of perjury.

Can a third party prepare the Form DS-160?

    While a third party may assist the applicant in preparing the Form 
DS-160, the applicant must electronically sign the application himself 
or herself. The applicant must identify in the application any third 
party who has assisted in the preparation of the Form DS-160.

Regulatory Findings

Administrative Procedure Act

    This regulation involves a foreign affairs function of the United 
States and, therefore, in accordance with 5 U.S.C. 553(a)(1), is not 
subject to the rule making procedures set forth at 5 U.S.C. 553.

Regulatory Flexibility Act/Executive Order 13272: Small Business

    Because this final rule is exempt from notice and comment 
rulemaking under 5 U.S.C. 553, it is exempt from the regulatory 
flexibility analysis requirements set forth at sections 603 and 604 of 
the Regulatory Flexibility Act (5 U.S.C. 603 and 604). Nonetheless, 
consistent with section 605(b) of the Regulatory Flexibility Act (5 
U.S.C. 605(b)), the Department certifies that this rule will not have a 
significant economic impact on a substantial number of small entities. 
This regulates individual aliens who seek consideration for 
nonimmigrant visas and does not affect any small entities, as defined 
in 5 U.S.C. 601(6).

The Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), 
Public Law 104-4, 109 Stat. 48, 2 U.S.C. 1532, generally requires 
agencies to prepare a statement before proposing any rule that may 
result in an annual expenditure of $100 million or more by

[[Page 23068]]

State, local, or tribal governments, or by the private sector. This 
rule will not result in any such expenditure, nor will it significantly 
or uniquely affect small governments.

The Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by 5 U.S.C. 804, for 
purposes of congressional review of agency rulemaking under the Small 
Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-
121. This rule will not result in an annual effect on the economy of 
$100 million or more; a major increase in costs or prices; or adverse 
effects on competition, employment, investment, productivity, 
innovation, or the ability of United States-based companies to compete 
with foreign-based companies in domestic and import markets.

Executive Order 12866: Regulatory Review

    The Department of State has reviewed this rule to ensure its 
consistency with the regulatory philosophy and principles set forth in 
Executive Order 12866 and has determined that the benefits of the 
proposed regulation justify its costs. The Department does not consider 
the rule to be an economically significant action within the scope of 
section 3(f)(1) of the Executive Order since it is not likely to have 
an annual effect on the economy of $100 million or more or to adversely 
affect in a material way the economy, a sector of the economy, 
competition, jobs, the environment, public health or safety, or state, 
local, or tribal governments or communities.

Executive Orders 12372 and 13132: Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or the distribution of power and responsibilities among the 
various levels of government. Nor will the rule have federalism 
implications warranting the application of Executive Orders No. 12372 
and No. 13132.

Executive Order 12988: Civil Justice Reform

    The Department has reviewed the proposed regulations in light of 
sections 3(a) and 3(b)(2) of Executive Order No. 12988 to eliminate 
ambiguity, minimize litigation, establish clear legal standards, and 
reduce burden.

Paperwork Reduction Act

    This rule does not impose information collection requirements under 
the provisions of the Paperwork Reduction Act, 44 U.S.C., Chapter 35.

List of Subjects in 22 CFR Parts 40 and 41

    Aliens, Foreign officials, Immigration, Nonimmigrants, Passports 
and Visas.

For the reasons stated in the preamble, the Department of State amends 
22 CFR part 40 and 41 as follows:


1. The authority citation for part 40 continues to read:

    Authority: 8 U.S.C. 1104; Pub. L. 105-277, 112 Stat. 2681-795 
through 2681-801, Pub. L. 104-208, 110 Stat. 3546.

2. Section 40.1 is amended by revising paragraph (l)(1) to read as 

Sec.  40.1  Definitions.

* * * * *
    (l) * * *
    (1) For a nonimmigrant visa applicant, submitting for formal 
adjudication by a consular officer of an electronic application, Form 
DS-160, signed electronically by clicking the box designated ``Sign 
Application'' in the certification section of the application or, as 
directed by a consular officer, a completed Form DS-156, with any 
required supporting documents and biometric data, as well as the 
requisite processing fee or evidence of the prior payment of the 
processing fee when such documents are received and accepted for 
adjudication by the consular officer.
* * * * *


3. The authority citation for part 41 continues to read:

    Authority: 8 U.S.C. 1104; Public Law 105-277, 112 Stat. 2681-795 
through 2681-801, Pub. L. 104-208, 110 Stat. 3546.3.

4. Section 41.32 is amended by revising paragraph (a)(2) to read as 

Sec.  41.32  Nonresident alien Mexican border crossing identification 
cards; combined border crossing identification cards and B-1/B-2 
visitor visas.

    (a) * * *
    (2) Procedure for application. Mexican applicants shall apply for a 
B-1/B-2 Visa/BCC at any U.S. consular office in Mexico designated by 
the Deputy Assistant Secretary of State for Visa Services pursuant to 
paragraph (a) of this section to accept such applications. The 
application shall be submitted electronically on Form DS-160 or, as 
directed by a consular officer, on Form DS-156. If submitted 
electronically, it must be signed electronically by clicking the box 
designated ``Sign Application'' in the certification section of the 
* * * * *

5. Section 41.103 is revised to read as follows:

Sec.  41.103  Filing an application.

    (a) Filing an application--(1) Filing of application required. 
Every alien seeking a nonimmigrant visa must make an electronic 
application on Form DS-160 or, as directed by a consular officer, an 
application on Form DS-156. The Form DS-160 must be signed 
electronically by clicking the box designated ``Sign Application'' in 
the certification section of the application.
    (2) Filing of an electronic application (Form DS-160) or Form DS-
156 by alien under 16 or physically incapable. The application for an 
alien under 16 years of age or one physically incapable of completing 
an application may be completed and executed by the alien's parent or 
guardian, or if the alien has no parent or guardian, by any person 
having legal custody of, or a legitimate interest in, the alien.
    (3) Waiver of filing of application when personal appearance is 
waived. Even if personal appearance of a visa applicant is waived 
pursuant to 22 CFR 41.102, the requirement for filing an application is 
not waived.
    (b) Application--(1) Preparation of Electronic Nonimmigrant Visa 
Application (Form DS-160) or, alternatively, Form DS-156. The consular 
officer shall ensure that the application is fully and properly 
completed in accordance with the applicable regulations and 
    (2) Additional requirements and information as part of application. 
Applicants who are required to appear for a personal interview must 
provide a biometric, which will serve to authenticate identity and 
additionally verify the accuracy and truthfulness of the statements in 
the application at the time of interview. The consular officer may 
require the submission of additional necessary information or question 
an alien on any relevant matter whenever the consular officer believes 
that the information provided in the application is inadequate to 
permit a determination of the alien's eligibility to receive a 
nonimmigrant visa. Additional statements made by the alien become a 
part of the visa application. All documents required by the consular

[[Page 23069]]

officer under the authority of Sec.  41.105(a) are considered papers 
submitted with the alien's application within the meaning of INA 
    (3) Signature. The Form DS-160 shall be signed electronically by 
clicking the box designated ``Sign Application'' in the certification 
section of the application. This electronic signature attests to the 
applicant's familiarity with and intent to be bound by all statements 
in the NIV application under penalty of perjury. Alternatively, except 
as provided in paragraph (a)(2) of this section, the Form DS-156 shall 
be signed by the applicant, with intent to be bound by all statement in 
the NIV application under penalty of perjury.
    (4) Registration. The Form DS-160 or the Form DS-156, when duly 
executed, constitutes the alien's registration for the purposes of INA 

6. Section 41.106 is revised to read as follows:

Sec.  41.106  Processing.

    Consular officers must ensure that the Form DS-160 or, 
alternatively, Form DS-156 is properly and promptly processed in 
accordance with the applicable regulations and instructions.

7. Section 41.113 is amended by revising paragraphs (g) and (h) to read 
as follows:

Sec.  41.113  Procedures in issuing visas.

* * * * *
    (g) Delivery of visa. In issuing a nonimmigrant visa, the consular 
officer should deliver the visaed passport, or the prescribed Form DS-
232, which bears the visa, to the alien or to the alien's authorized 
representative. Any evidence furnished by the alien in accordance with 
41.103(b) should be retained in the consular files, along with Form DS-
156, if received.
    (h) Disposition of supporting documents. Original supporting 
documents furnished by the alien should be returned for presentation, 
if necessary, to the immigration authorities at the port of entry. 
Duplicate copies may be retained in the consular files or scanned into 
the consular system.
* * * * *

    Dated: April 22, 2008.
Janice L. Jacobs,
Assistant Secretary for Consular Affairs, Acting, Department of State.
 [FR Doc. E8-9336 Filed 4-28-08; 8:45 am]