Legal Basis for the DV Program

[Federal Register: August 18, 2003 (Volume 68, Number 159)]
[Rules and Regulations]
[Page 49353-49356]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18au03-19]

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DEPARTMENT OF STATE

22 CFR Part 42

[Public Notice 4446]

Documentation of Immigrants Under the Immigration and Nationality
Act, As Amended: Electronic Petition for Diversity Immigrant Status

ACTION: Interim rule with request for comments.

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SUMMARY: In this rule the Department changes the manner in which aliens
may petition for the opportunity to participate in the Diversity Visa
Program from a standard mail-in system, to an entirely electronic
system that will utilize a specifically designated Internet website.
This rule also makes minor technical and editorial changes to the
existing rule for the purpose of greater clarity, uniformity and
precision. The Department is implementing the new electronic system in
order to make the process less prone to fraud, improve efficiency in
the diversity visa petition process and significantly reduce the cost
to the Government of the process. When the rule is published aliens
petitioning to participate in the diversity visa program will be
required to submit their petition to the Department exclusively via
electronic means.

DATES: This rule becomes effective on August 18, 2003. Written comments
must be received on or before October 17, 2003.

ADDRESSES: Written comments may be submitted to the Chief, Legislation
and Regulations Division, Visa Services, Department of State,
Washington, DC 20520-0106, by fax to 202-663-3898, or by e-mail to
VisaRegs@state.gov.
FOR FURTHER INFORMATION CONTACT: Ron Acker, Legislation and Regulations
Division, Visa Services, Department of State, Washington, DC 20520-
0106, 202-663-0102.

SUPPLEMENTARY INFORMATION:

What Is the Diversity Visa Program?

The Diversity Visa Program is an annual visa program administered
by the Department of State pursuant to section 203(c) of the
Immigration and Nationality Act (INA), 8 U.S.C. 1153(c). Aliens from
eligible countries (as determined by the Department of Homeland
Security) petition the Department for the opportunity to apply for one
of 50,000* immigrant visas made available each year pursuant to section
201(e) of the INA, 8 U.S.C. 1151(e) (note that section 201(e) actually
provides for 55,000 visas, however, the Nicaraguan Adjustment and
Central American Relief Act of 1997 (NACARA), Title II of P.L. 105-100,
stipulated that 5,000 of the immigrant visas made available under
section 201(e) would be set aside each year for aliens eligible to
adjust their status to that of lawful permanent resident under that
Act*). The Department selects and rank orders petitions at random from
among those that meet all of the prescribed petition requirements.
Aliens whose petitions are selected may then apply for visas in rank
order on a first come, first served basis until all of the 50,000*
visas for the fiscal year for which the petitions have been selected
are issued, or the fiscal year ends, whichever comes first.

What Is the Current Petition Procedure for the Program?

Since the inception of the Diversity Visa Program, the Department
has required that all petitions for acceptance of an alien into the
program be submitted by mail during a thirty-day period in the fiscal
year preceding the fiscal year for which petitioners seek eligibility
for the program. To date, submission by any means other than regular
mail has been prohibited.
According to the existing rule, individual petitioners have been
instructed to include certain information about themselves and their
family members on a sheet of paper and to submit that document, signed,
along with signed photographs of themselves and family members to the
Department at a specific mailing address. Petitions without the
required information or signatures and those received before or after
the dates of the mail-in period have been automatically disqualified
from consideration. Further, the statute authorizing the program
permits only one petition submission per applicant. Persons submitting
multiple petitions also are disqualified from participation in the
program. No fee has been charged at the time of submission of the
petition, but recipients of diversity immigrant visas have been
required at the time of visa application to pay an additional
processing fee beyond that paid by other classes of immigrant visa
recipients.

How Will This Rule Change the Petition Procedure?

When this rule becomes effective, alien petitioners for the
Diversity Visa Program will no longer be permitted to submit a petition
by mail. Instead, the Department will require that all petitions be
submitted to it in an electronic format, using an Internet website
dedicated specifically to the submission and receipt of Diversity Visa
Program petitions. The website will have contained in it a standard
petition form which the petitioner, or someone acting for the
petitioner, must fill out on-line and send electronically to the
Department at a web address. The person completing the petition form
will also be required to attach to the electronic petition individual
digital photographs of the petitioner and the petitioner’s spouse and
unmarried children under 21 who will be seeking to accompany or follow
to join the petitioner should the petitioner receive a diversity
immigrant visa. The photographs will have specific requirements as to
size, composition and quality. Fees will be handled as they are under
the current rules for diversity program petitions. Because the petition
must be submitted electronically, the current requirement that the
petition and photographs be signed, is, necessarily, being eliminated.

Why Is the Department Changing the Petition Process in this Manner?

There are three principal reasons the Department believes an
electronic petition process is preferable to the existing mail-in
process.
Anti-fraud benefits: The Department believes that the electronic
petition process will help eliminate the submission of multiple
petitions, prohibited under INA section 204(a)(1)(I). Currently,
despite the fact that only 50,000* visas are available each year, many
millions of petitions are submitted. The Department uses it’s limited
resources to crosscheck for multiple submissions and create records for
only the number of correctly completed petitions sufficient to ensure a
pool of visa applicants that will be large enough to guarantee use of
all the visas. That number is only a small percentage of the overall
total of petitions submitted. Therefore, the likelihood of an alien
petitioner of being caught submitting more than one petition is much
less than it would be if information from all of the petitions could be
entered automatically into the

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database and cross-checked for duplicates using name and address
matching software. In addition, the use of a digitized photograph will
further enhance the Department’s anti-fraud capability by permitting
facial recognition crosschecking and matching to eliminate multiple
applications using false identities. By significantly reducing the
amount of fraud to which the existing program is subject, the
Department believes it will be helping to eliminate one possible avenue
terrorists and other criminal aliens might seek to utilize in order to
enter the U.S. Further, because all of the information from all
petitions submitted would be stored in a retrievable format, it will
also enable the Department to search the database for specific names
and faces when asked to do so by intelligence or security agencies.
Cost: The electronic process will be considerably less expensive
for the Department to operate than the current procedure. In recent
years diversity immigrant program petition submissions have numbered up
to thirteen million per year. The cost of receiving, storing and
handling this volume of paper documentation has been considerable. In
addition to simply opening and sorting this volume of petitions, data
taken from the petitions must be entered into the diversity visa
database by hand, consuming extensive resources and introducing
inevitable human errors that must either be corrected at an additional
cost in resources or that eventually will lead to confusion at the time
of visa application, resulting in lost time while the truth of the
matter is determined. The Department conservatively estimates that the
elimination of the paper process can save one million dollars per year
by reducing the cost of storage and eliminating the handling of and
recording of information from the paper documentation.
Benefit to the petitioners: The new system will benefit the
petitioners as well. Currently, under the mail-in system, persons
submitting petitions from overseas have no real assurance that the
Department will receive their petitions within the prescribed mail-in
period. Nor has it been possible to notify them of the receipt of
petitions, due to the great volume of submissions. This fact by itself
has been an inducement for petitioners to submit multiple petitions in
the hope that at least one petition would arrive at the Department in
the correct timeframe. An electronic system will guarantee that
petitioners are notified of petition receipt virtually simultaneously
with the submission of the petition and thus eliminate the incentive to
submit multiple petitions.

Won’t Some Potential Petitioners in Less-Developed Countries Be
Disadvantaged Due to the Lack of Sufficient Internet Facilities in
Those Countries?

The Department believes that the argument that some applicants
would be disadvantaged, especially in poorer countries, because they
would not have ready access to the necessary computer hardware and
software to file a petition electronically is offset, especially after
September 11, 2001, by the security advantages and cost-saving of the
electronic procedure, as well as the benefit to the petitioners of the
certain knowledge of receipt of the petitions by the Department within
the prescribed application period. Furthermore, the growing use of
Internet cafes and similar resources, even in less developed countries,
makes on-line registration increasingly convenient. Those unable to
access computers themselves would be able to submit applications with
the assistance of computer service providers and third parties, which
currently advertise their services for the DV program far and wide and
could certainly adapt to the new filing procedures. Likewise, the
procedures will be flexible enough to permit stateside computer service
providers to receive paper petitions from abroad, which they could use
to enter the necessary information into the electronic petition form on
behalf of the petitioners. While there may be some risk that a few
facilitators would overcharge, the Department’s experience with the
Diversity Visa Program leads it to the conclusion that brisk
competition will likely keep charges from becoming cost-prohibitive for
most potential petitioners.

What Other Changes Does the Department Propose Making to the Current
Regulation?

In addition to minor grammatical and other changes for
clarification, the Department is amending subsection (a)(3) regarding
use of the Department of Labor’s O*Net Online to determine the
sufficiency of a petitioner’s work experience where such experience is
used to qualify the petitioner for participation in the Diversity Visa
Program. Reference to the O*Net Online was added by an interim rule
dated August 2, 2002 [67 FR 51752] at which time it was stated that the
O*Net Online would be used only for the 2003 Diversity Visa Program.
The change will make such use a permanent feature of the Diversity Visa
Program. The Department also has added gender to the list of required
items on the new electronic petition form. That information will assist
the Department in the use of facial recognition technology in order to
more accurately identify individuals for security and other purposes.

Regulatory Findings

Administrative Procedure Act

The immediate implementation of this rule as an interim rule, with
a 60-day provision for post-promulgation public comments, is based on
findings of “good cause” pursuant to 5 U.S.C. 553(b) and 553(d)(3).
The effective date of this rule on August 18, 2003 is necessary to
allow the Department to eliminate as quickly as possible the
considerable amount of fraud detected in the Diversity Visa Program and
thus prevent the program from being used by aliens who could pose a
security threat to the United States or otherwise violate the laws of
the United States, including the immigration laws. Because diversity
visa applicants must be selected far in advance of the actual date of
their visa application in order that they have time to obtain the
necessary documentation for their application and make arrangements to
appear at an embassy or consulate to make the application, delay for
notice and comment would jeopardize the Department’s ability to
successfully conduct the FY 2005 diversity selection, thus extending
for another year the program’s susceptibility to high levels of fraud.
To prevent such a result, the Department has determined that prior
notice and public comment on this rule would be impractical and
contrary to the public interest. Accordingly, there is good cause to
publish this interim rule and to make it effective upon its publication
in the Federal Register.

Regulatory Flexibility Act/Executive Order 13272: Small Business

The Department of State, in accordance with the Regulatory
Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by
approving it, certifies that this rule will not have a significant
economic impact on a substantial number of small entities.

Unfunded Mandates Act of 1995

This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $1
million or more in any year and it will not significantly or uniquely
affect small governments. Therefore, no actions were deemed

[[Page 49355]]

necessary under the provisions of the Unfunded Mandates Reform Act of
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. 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 significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign
based companies in domestic and import markets.

Executive Order 12866

The Department of State considers this rule to be a “significant
regulatory action” under Executive Order 12866, section 3(f),
Regulatory Planning and Review. Accordingly, it has been reviewed by
the Office of Management and Budget (OMB).

Executive Order 13132

This regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to require consultations or warrant
the preparation of a federalism summary impact statement.

Paperwork Reduction Act

The reporting or record-keeping action required from the public
under the rule requires the approval of the Office of Management and
Budget under the Paperwork Reduction Act. A form to be used for
petitioning the Department electronically for participation in the
Diversity Visa Program will be forwarded to OMB as required.

List of Subjects in 22 CFR Part 42

Aliens, Immigrants, Passports and visas.

0
Accordingly, for the reasons set forth in the preamble, 22 CFR part 42
is amended as follows:

PART 42–[AMENDED]

0
1. The authority citation for part 42 continues to read as follows:

Authority: 8 U.S.C. 1104; 2651a.

0
2. Revise Sec. 42.33 to read as follows:

Sec. 42.33 Diversity immigrants.

(a) General. (1) Eligibility to compete for consideration under
section 203(c). An alien will be eligible to compete for consideration
for visa issuance under INA 203(c) during a fiscal year only if he or
she is a native of a low-admission foreign state, as determined by the
Secretary of Homeland Security pursuant to INA 203(c)(1)(E), with
respect to the fiscal year in question; and if he or she has at least a
high school education or its equivalent or, within the five years
preceding the date of application for a visa, has two years of work
experience in an occupation requiring at least two years training or
experience. The eligibility for a visa under INA 203(c) ceases at the
end of the fiscal year in question. Under no circumstances may a
consular officer issue a visa or other documentation to an alien after
the end of the fiscal year during which an alien possesses diversity
visa eligibility.
(2) Definition of high school education or its equivalent. For the
purposes of this section, the phrase high school education or its
equivalent means the successful completion of a twelve-year course of
elementary and secondary education in the United States or successful
completion in another country of a formal course of elementary and
secondary education comparable to completion of twelve years’
elementary and secondary education in the United States.
(3) Determinations of work experience. For all cases registered for
the 2003 Diversity Visa Program and Diversity Visa Programs occurring
in subsequent fiscal years, consular officers must use the Department
of Labor’s O*Net On Line to determine qualifying work experience.
(4) Limitation on number of petitions per year. No more than one
petition may be submitted by or on behalf of, any alien for
consideration during any single fiscal year. If two or more petitions
for any single fiscal year are submitted by, or on behalf of, any
alien, all such petitions will be void pursuant to INA 204(a)(1)(I)(i)
and the alien by or for whom the petition has been submitted will not
be eligible for consideration for diversity visa issuance during the
fiscal year in question.
(5) Northern Ireland. For purposes of determining eligibility to
file a petition for consideration under INA 203(c) for a fiscal year,
the districts comprising that portion of the United Kingdom of Great
Britain and Northern Ireland, known as “Northern Ireland”, will be
treated as a separate foreign state. The districts comprising
“Northern Ireland” are Antrim, Ards, Armagh, Ballymena, Ballymoney,
Banbridge, Belfast, Carrickfergus, Castlereagh, Coleraine, Cookstown,
Craigavon, Down, Dungannon, Fermanagh, Larne, Limavady, Lisburn,
Londonderry, Magherafelt, Moyle, Newry and Mourne, Newtownabbey, North
Down, Omagh, and Strabane.
(b) Petition requirement. An alien claiming to be entitled to
compete for consideration under INA 203(c) must file a petition with
the Department of State for such consideration. At the alien
petitioner’s request, another person may file a petition on behalf of
the alien. The petition will consist of an electronic entry form that
the alien petitioner or a person acting on the behalf of the alien
petitioner must complete on-line and submit to the Department of State
via a Web site established by the Department of State for the purpose
of receiving such petitions. The Department will specify the address of
the Web site prior to the commencement of the 30-day or greater period
described in paragraph (b)(3) of this section using the notice
procedure prescribed in that paragraph.
(1) Information to be provided in the petition. The website will
include the electronic entry form mentioned in paragraph (b) of this
section. The entry form will require the person completing the form to
provide the following information, typed in the Roman alphabet,
regarding the alien petitioner:
(i) The petitioner’s full name;
(ii) The petitioner’s date and place of birth (including city and
country, province or other political subdivision of the country);
(iii) The petitioner’s gender;
(iv) The country of which the petitioner claims to be a native, if
other than the country of birth;
(v) The name[s], date[s] and place[s] of birth and gender of the
petitioner’s spouse and child[ren], if any, (including legally adopted
and step-children), regardless of whether or not they are living with
the petitioner or intend to accompany or follow to join the petitioner
should the petitioner immigrate to the United States pursuant to INA
203(c), but excluding a spouse or a child[ren] who is already a U.S.
citizen or U.S. lawful permanent resident;
(vi) A current mailing address for the petitioner;
(vii) The location of the consular office nearest to the
petitioner’s current residence or, if in the United States, nearest to
the petitioner’s last foreign residence prior to entry into the United
States;
(2) Requirements for photographs. The electronic entry form will
also

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require inclusion of a recent photograph of the petitioner and of his
or her spouse and all unmarried children under the age of 21 years. The
photographs must meet the following specifications:
(i) A digital image of the applicant from either a digital camera
source or a scanned photograph via scanner. If scanned, the original
photographic print must have been 2” by 2” (50mm x 50mm). Scanner
hardware and digital image resolution requirements will be further
specified in the public notice described in paragraph (b)(3) of this
section.
(ii) The image must be in the Joint Photographic Experts Group
(JPEG) File Interchange Format (JFIF) format.
(iii) The image can be either in color or black and white.
(iv) The person being photographed must be directly facing the
camera with the head neither tilted up, down, or to the side. The head
must cover about 50% of the area of the photograph.
(v) The photograph must be taken with the person in front of a
neutral, light-colored background. Photos taken with very dark or
patterned, busy backgrounds will not be accepted.
(vi) The person’s face must be in focus.
(vii) The person in the photograph must not wear sunglasses or
other paraphernalia that detracts from the face.
(viii) A photograph with the person wearing a head covering or a
hat is only acceptable if the covering or hat is worn specifically due
to that person’s religious beliefs, and even then, the hat or covering
may not obscure any portion of the face. A photograph of a person
wearing tribal, military, airline or other headgear not specifically
religious in nature will not be accepted.
(3) Submission of petition. A petition for consideration for visa
issuance under INA 203(c) must be submitted to the Department of State
by electronic entry to an Internet website designated by the Department
for that purpose. No fee will be collected at the time of submission of
a petition, but a processing fee may be collected at a later date, as
provided in paragraph (i) of this section. The Department will
establish a period of not less than thirty days during each fiscal year
within which aliens may submit petitions for approval of eligibility to
apply for visa issuance during the following fiscal year. Each fiscal
year the Department will give timely notice of both the website address
and the exact dates of the petition submission period, as well as other
pertinent information, through publication in the Federal Register and
such other methods as will ensure the widest possible dissemination of
the information, both abroad and within the United States.
(c) Processing of petitions. Entries received during the petition
submission period established for the fiscal year in question and
meeting all of the requirements of paragraph (b) of this section will
be assigned a number in a separate numerical sequence established for
each regional area specified in INA 203(c)(1)(F). Upon completion of
the numbering of all petitions, all numbers assigned for each region
will be separately rank-ordered at random by a computer using standard
computer software for that purpose. The Department will then select in
the rank orders determined by the computer program a quantity of
petitions for each region estimated to be sufficient to ensure, to the
extent possible, usage of all immigrant visas authorized under INA
203(c) for the fiscal year in question. The Department will consider
petitions selected in this manner to have been approved for the
purposes of this section.
(d) Validity of approved petitions. A petition approved pursuant to
paragraph (c) of this section will be valid for a period not to exceed
Midnight of the last day of the fiscal year for which the petition was
approved. At that time, the Department of State will consider approval
of the petition to cease to be valid pursuant to INA
204(a)(1)(I)(ii)(II), which prohibits issuance of visas based upon
petitions submitted and approved for a fiscal year after the last day
of that fiscal year.
(e) Order of consideration. Consideration for visa issuance to
aliens whose petitions have been approved pursuant to paragraph (c) of
this section will be in the regional rank orders established pursuant
that paragraph.
(f) Allocation of visa numbers. To the extent possible, diversity
immigrant visa numbers will be allocated in accordance with INA
203(c)(1)(E) and will be allotted only during the fiscal year for which
a petition to accord diversity immigrant status was submitted and
approved. Under no circumstances will immigrant visa numbers be
allotted after midnight of the last day of the fiscal year for which
the petition was submitted and approved.
(g) Further processing. The Department will inform applicants whose
petitions have been approved pursuant to paragraph (c) of this section
of the steps necessary to meet the requirements of INA 222(b) in order
to apply formally for an immigrant visa.
(h) Maintenance of certain information. (1) The Department will
compile and maintain the following information concerning petitioners
to whom immigrant visas are issued under INA 203(c):
(i) Age;
(ii) Country of birth;
(iii) Marital status;
(iv) Sex;
(v) Level of education; and
(vi) Occupation and level of occupational qualification.
(2) The Department will not maintain the names of visa recipients
in connection with this information and the information will be
compiled and maintained in such form that the identity of visa
recipients cannot be determined therefrom.
(i) Processing fee. In addition to collecting the immigrant visa
application fee and, if applicable, issuance fees, as provided in
Sec. 42.71(b) of this part, the consular officer must also collect from
each applicant for a visa under the Diversity Immigrant Visa Program
such processing fee as the Secretary of State prescribes.

Dated: August 8, 2003.
Maura Harty,
Assistant Secretary of State, Bureau of Consular Affairs, Department of
State.
[FR Doc. 03-21071 Filed 8-15-03; 8:45 am]

BILLING CODE 4710-06-P

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