Visas: Visa Bond Pilot Program, 74875-74883 [2020-24223]

Agencies

• DEPARTMENT OF STATE

[Federal Register Volume 85, Number 227 (Tuesday, November 24, 2020)]
[Rules and Regulations]
[Pages 74875-74883]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24223]


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DEPARTMENT OF STATE

22 CFR Part 41

[Public Notice: 11218]
RIN 1400-AE99


Visas: Visa Bond Pilot Program

AGENCY: Department of State.

ACTION: Temporary final rule.

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SUMMARY: This temporary final rule provides for a U.S. Department of 
State (Department) visa bond pilot program (Pilot Program) with 
specified parameters. The purpose of the Pilot Program is to assess the 
operational feasibility of posting, processing, and discharging visa 
bonds, in coordination with the Department of Homeland Security (DHS), 
to help assess the burden on government agencies and identify any 
practical challenges related to visa bonds. The Pilot Program does not 
aim to assess whether issuing visa bonds will be effective in reducing 
the number of aliens who overstay their temporary business visitor/
tourist (B-1/B-2) visa. Visa applicants potentially subject to the 
Pilot Program include aliens who: Are applying for visas as temporary 
visitors for business or pleasure (B-1/B-2); are from countries with 
high visa overstay rates; and already have been approved by DHS for an 
inadmissibility waiver. Because this is a visa bond program, aliens 
traveling under the Visa Waiver Program fall outside the scope of the 
Pilot Program, as those travelers do not apply for visas. The Pilot 
Program is designed to apply to nationals of specified countries with 
high overstay rates to serve as a diplomatic tool to encourage foreign 
governments to take all appropriate actions to ensure their nationals 
timely depart the United States after making temporary visits. The 
Pilot Program will run for six months. During that period, consular 
officers may require nonimmigrant visa applicants falling within the 
scope of the Pilot Program to post a bond in the amount of $5,000, 
$10,000, or $15,000 as a condition of visa issuance. The amount of the 
bond, should a bond be appropriate, will be determined by the consular 
officer based on the circumstances of the visa applicant.

DATES: 
    Effective Date: This temporary final rule is effective from 
December 24, 2020 through June 24, 2021.
    Pilot Program Dates: The Pilot Program will run for six months, 
from December 24, 2020 through June 24, 2021.

FOR FURTHER INFORMATION CONTACT: Megan Herndon, Senior Regulatory 
Coordinator, Visa Services Directorate, Bureau of Consular Affairs, 
Department of State; telephone (202) 485-7586, [email protected].

SUPPLEMENTARY INFORMATION:

I. Executive Summary of Pilot Program

    This temporary final rule establishes a Pilot Program under section 
221(g)(3) of the Immigration and Nationality Act, as amended (INA) (8 
U.S.C. 1201(g)(3)), which authorizes consular officers to require the 
posting of a Maintenance of Status and Departure Bond (visa bond) by an 
alien applying for, and otherwise eligible to receive, a business 
visitor/tourist (B-1/B-2) visa, when a visa bond is required ``to 
insure that at the expiration of the time for which such alien has been 
admitted . . . or upon failure to maintain the status under which [the 
alien] was admitted, or to maintain any status subsequently acquired 
under section 1258 of this title (INA section 248), such alien will 
depart from the United States.'' The Pilot Program will begin on 
December 24, 2020, and end on June 24, 2021.
    Historically, Department guidance generally discouraged consular 
officers from exercising their authority to require visa bonds under 
INA section 221(g)(3), as reflected in guidance published in Volume 9 
of the Foreign Affairs Manual (9 FAM), section 403.9-8(A) Bonds Should 
Rarely Be Used,\1\ which states, ``[t]he mechanics of posting, 
processing and discharging a bond are cumbersome,'' and notes possible 
misperception of a bond requirement by the public. The Pilot Program 
will help the Department assess the operational feasibility of posting, 
processing, and discharging visa bonds, in coordination with DHS, to 
inform any future decision concerning the possible use of visa bonds to 
address overstays. The Pilot Program responds to the President's 
initiative to lower visa overstay rates, as reflected in the April 22, 
2019, Presidential Memorandum on Combating High Nonimmigrant Overstay 
Rates \2\ (the Presidential Memorandum), the threat to U.S. interests 
described in the Presidential Memorandum; and the high nonimmigrant 
overstay rates for nationals of certain countries.
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    \1\ https://fam.state.gov/FAM/09FAM/09FAM040309.html.
    \2\ https://www.whitehouse.gov/presidential-actions/presidential-memorandum-combating-high-nonimmigrant-overstay-rates/.
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    Under the Pilot Program, visa bonds may be required from certain 
applicants for B-1/B-2 visas who are nationals of listed countries that 
have overstay rates of ten percent or higher in the combined B-1/B-2 
nonimmigrant visa category, as reported in the DHS Fiscal Year 2019 
Entry/Exit Overstay Report (DHS FY 2019 Overstay Report), and who have 
been approved for a waiver of ineligibility by DHS under INA section 
212(d)(3)(A) (8 U.S.C. 1182(d)(3)(A)). Visa bonds will be posted with 
U.S. Immigration and Customs Enforcement (ICE) via ICE Form I-352, 
Immigration Bond. DHS regulations at 8 CFR 103.6 currently provide for 
the posting, processing, and cancellation of such visa bonds. DHS/ICE 
will collect all bonds and retain all fees in the instance that a bond 
is breached.

II. Purpose of This Rule

    The Department is publishing this temporary final rule (TFR) to 
establish the Pilot Program, including: (1) The criteria for 
identifying visa applicants who will be required to post visa bonds; 
(2) three levels for the amount of the bond, with the level to be 
selected by the consular officer based on an applicant's individual 
circumstances; and (3) the duration of the Pilot

[[Page 74876]]

Program. The Pilot Program will help the Department assess the 
operational feasibility of posting, processing, and discharging visa 
bonds, in coordination with DHS, which will inform any future decision 
concerning the possible use of visa bonds to address the national 
security and foreign policy objectives articulated in the Presidential 
Memorandum, which declares the Administration's commitment ``to 
securing the borders of the United States and fostering respect for the 
laws of our country, both of which are cornerstones of our Republic.'' 
\3\ The Presidential Memorandum highlights the fact that visa overstay 
rates are unacceptably high for nationals of certain countries and 
concludes that, ``individuals who abuse the visa process and decline to 
abide by the terms and conditions of their visas, including their visa 
departure dates, undermine the integrity of our immigration system and 
harm the national interest.'' \4\
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    \3\ Presidential Memorandum section 1(a).
    \4\ Id.
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    The Presidential Memorandum directs the Secretary of State, in 
consultation with the Attorney General and the Secretary of Homeland 
Security, to provide the President with recommendations to reduce B-1 
and B-2 nonimmigrant visa overstay rates from countries with a total 
overstay rate greater than ten percent, and further directs the 
Secretary of State and the Secretary of Homeland Security to take, 
``appropriate actions that are within the scope of their respective 
authorities to reduce overstay rates for all classes of nonimmigrant 
visas.'' \5\ The Department intends to use the results of the Pilot 
Program to assess the operational feasibility of posting, processing, 
and discharging visa bonds, in coordination with DHS, which will inform 
any future decision concerning the possible use of visa bonds to 
address visa overstay rates, relative to operational considerations. 
Determining operational feasibility of posting, processing, and 
discharging visa bonds focuses on assessing the burdens such a program 
places on government agencies and identifying challenges that might 
arise from the interagency process for implementing visa bonds. The 
purpose does not include, and this Pilot Program is not designed for, 
determining the effectiveness of visa bonds at reducing overstays. This 
Pilot Program evaluates the operational challenges, rather than the 
outcome. The Department recognizes that, because of the limited scope 
of the Pilot Program, it cannot be used to assess the effectiveness of 
visa bonds for reducing overstays.
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    \5\ Presidential Memorandum at Section 2.
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III. Background

A. Foreign Policy Justification

    The Presidential Memorandum notes that the number of aliens who 
overstay their period of lawful admission is unacceptably high for 
nationals of certain countries and concludes that, ``individuals who 
abuse the visa process and decline to abide by the terms and conditions 
of their visas, including their visa departure dates, undermine the 
integrity of our immigration system and harm the national interest.'' 
\6\ Furthermore, overstays ``place significant strain on Department of 
Justice and Department of Homeland Security resources.'' \7\ The volume 
of overstays highlights this concern. DHS reported to Congress in the 
DHS FY 2019 Overstay Report that,``[a]t the end of FY 2019, there were 
574,740 Suspected In-Country Overstays'' (i.e., aliens who remained in 
the country past the end of their authorized stay and had yet to depart 
the country) among nonimmigrants admitted through air or sea ports of 
entry.\8\
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    \6\ Id.
    \7\ Presidential Memorandum at Section 1(a).
    \8\ ``Fiscal Year 2019 Entry/Exit Overstay Report'' prepared by 
DHS and submitted to Congress pursuant to Section 2(a) of the 
Immigration and Naturalization Service Data Management Improvement 
Act of 2000 (Pub. L. 106-215, 114 Stat. 337, June 15, 2000) (DHS FY 
2019 Overstay Report), found at https://www.dhs.gov/publication/entryexit-overstay-report. In the Report, DHS further explained that 
by the end of December 2019, the number of Suspected In-Country 
Overstays for FY 2019 decreased to 497,272, due to departures and 
adjustments of status by aliens in that population. The report 
explains that overstay statistics reported do not take into account 
diplomats and other representatives, crewmembers, aliens in transit, 
and section 1367 special-protected classes, because they have 
``unspecified authorized periods of stay and legal protections.'' 
DHS FY 2019 Overstay Report at Section III(C).
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    Studies reviewing data covering periods before DHS began publishing 
overstay data (the first DHS Overstay Report covered FY 2015) have 
suggested that the number of overstays has exceeded land border 
apprehensions for several years and that, over the past decade, 
unauthorized migration is attributable more to visa overstays than to 
unauthorized border crossings.\9\ Furthermore, the number of total 
overstays annually among foreign nationals admitted to the United 
States at an air or sea port of entry as nonimmigrant visitors for 
business or pleasure on a B-1 or B-2 visa, excluding travelers from 
Mexico, Canada, and Visa Waiver Program (VWP) participating countries 
\10\ has increased in recent years, based on statistics published by 
DHS. For fiscal years beginning with 2015, DHS has published an 
``Overstay Report'' with a broad range of statistics relating to 
``overstays,'' which DHS defines, for purposes of these reports, as ``a 
nonimmigrant who was lawfully admitted to the United States for an 
authorized period but stayed in the United States beyond his or her 
authorized admission period.'' \11\ As explained in the report, if a 
nonimmigrant timely applies for an extension of the authorized period 
of admission or applies to change or adjust status, the authorized 
period of admission may be extended, thereby avoiding overstay status. 
The reports for fiscal years 2015 through 2019 include statistics on 
foreign nationals who entered the United States at an airport or 
seaport of entry as nonimmigrant visitors for business or pleasure on a 
B-1 or B-2 visa, excluding travelers from Mexico, Canada, and VWP 
participating countries. For fiscal year 2015, DHS reported a total of 
228,783 overstays among this category of nonimmigrant visitors, 
including ``out-of-country'' overstays (i.e., those who departed some 
time before the end of FY 2015) and in-country overstays (i.e., those 
who remained in the United States at the end of FY 2015).\12\ The 
number of such overstays grew in each of the consecutive years, to 
287,107 for FY 2016,\13\ to 301,716 for FY 2017,\14\ to 305,215 for FY 
2018,\15\ and finally to 320,086 for FY 2019.\16\
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    \9\ See Blas Nu[ntilde]ez-Neto, ``Visa Overstays Outsize Role in 
Unauthorized Migration,'' Homeland Security Policy Paper #2, Harvard 
Kennedy School Belfer Center, at https://www.belfercenter.org/sites/default/files/files/publication/HSP%20Paper%20Series-Visa%20Overstays_0.pdf, citing Robert Warren and Donald Kerwin, 
``Beyond DAPA and DACA: Revisiting Legislative Reform in Light of 
Long-Term Trends in Unauthorized Immigration to the United States,'' 
Journal on Migration Human Security 3, no. 1 (Mar. 2015), 80-108.
    \10\ The Visa Waiver Program is described in INA 217 (8 U.S.C. 
1187).
    \11\ DHS Fiscal Year 2019 Entry/Exit Overstay Report, https://www.dhs.gov/publication/entryexit-overstay-report (DHS FY2019 
Overstay Report), at Section III(C).
    \12\ Id. at page 14, Table 2.
    \13\ DHS Entry/Exit Overstay Report for Fiscal Year 2016, 
https://www.dhs.gov/publication/entryexit-overstay-report, at page 
13, Table 1.
    \14\ DHS Entry/Exit Overstay Report for Fiscal Year 2017, 
https://www.dhs.gov/publication/entryexit-overstay-report, at page 
12, Table 1.
    \15\ DHS Entry and Exit Overstay Report for Fiscal Year 2018, 
https://www.dhs.gov/publication/entryexit-overstay-report, at page 
13, Table 1.
    \16\ DHS Entry/Exit Overstay Report for Fiscal Year 2019, 
https://www.dhs.gov/publication/entryexit-overstay-report, at page 
20, Table 1.
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    Section 2 of the Presidential Memorandum directed the Secretary of 
State to engage with the governments of countries with a total overstay 
rate greater than ten percent in the combined

[[Page 74877]]

B-1 and B-2 nonimmigrant visa category, based on the DHS FY 2019 
Overstay Report. By focusing the Pilot Program on certain countries 
identified in the DHS FY 2019 Overstay Report as having overstay rates 
of ten percent or higher among aliens admitted to the United States for 
business or pleasure (B-1/B-2) via air and sea ports of entry,\17\ the 
U.S. Government sends a message to all countries that high overstay 
rates may result in measures that negatively affect broad categories of 
their nationals, thereby encouraging countries to take action to 
encourage their nationals to comply with U.S. immigration law. By 
establishing the Pilot Program, the U.S. Government focuses on 
travelers who are nationals of: Afghanistan, Angola, Bhutan, Burkina 
Faso, Burma, Burundi, Cabo Verde, Chad, Democratic Republic of the 
Congo (Kinshasa), Djibouti, Eritrea, the Gambia, Guinea-Bissau, Iran, 
Laos, Liberia, Libya, Mauritania, Papua New Guinea, Sao Tome and 
Principe, Sudan, Syria, and Yemen,\18\ thereby sending a message to 
those countries in particular regarding the relevant overstay rates of 
their nationals. By its design and intention, the Pilot Program is a 
tool of diplomacy, intended to encourage foreign governments to take 
all appropriate actions to reduce the overstay rates of their nationals 
when traveling to the United States for temporary visits. As such, the 
rule properly is described as a component of U.S. foreign policy and 
involving a foreign affairs function.
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    \17\ This analysis excluded nationals of Canada, Mexico, and 
countries that participate in the Visa Waiver Program, because, 
among other reasons, the procedures or requirements for B-1/B-2 
status for nationals of those countries differ from nationals of 
other countries and generally do not involve applying for visas.
    \18\ Although Palau had an overstay rate of 15%, according to 
the DHS FY19 Overstay Report, it is excluded from the Pilot Program 
due to its unique circumstances, which permit its citizens to travel 
and apply for admission to the United States as nonimmigrants 
without visas, based on the Compact of Free Association Approval Act 
(Pub. L. 99-658, 100 Stat. 3672, Nov. 14, 1986).
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B. Legal Framework Underlying the Pilot Program

    As detailed below, the INA grants, and Department regulations 
implement, consular officer authority to require bonds in appropriate 
circumstances; however, historically, as a matter of policy, Department 
guidance has discouraged consular officers from exercising their 
authority to require bonds. See 9 FAM 403.9-8(A) Bonds Should Rarely Be 
Used.
1. INA Provisions
    Section 221(g)(3) of the INA (8 U.S.C. 1201(g)(3)), authorizes 
consular officers to require the posting of a bond by an alien applying 
for, and otherwise eligible to receive, a business/tourist (B-1/B-2) 
visa ``to insure that at the expiration of the time for which such 
alien has been admitted . . . or upon failure to maintain the status 
under which [the alien] was admitted, or to maintain any status 
subsequently acquired under section 1258 of this title (INA section 
248), such alien will depart from the United States.'' INA section 
221(g)(3) (8 U.S.C. 1201(g)(3)), implicitly recognizes that there is no 
guarantee that an alien will depart in a timely fashion, even when an 
applicant is found otherwise eligible for the visa. Consequently, this 
INA section contemplates that it may be appropriate to require a bond 
when an applicant is otherwise eligible for a visa.
2. Department Regulations
    Department regulations regarding visa bonds include 22 CFR 
41.11(b)(2), which provides that, ``[i]n a borderline case in which an 
alien appears to be otherwise entitled to receive a visa under INA 
section 101(a)(15)(B) or (F) but the consular officer concludes that 
the maintenance of the alien's status or the departure of the alien 
from the United States as required is not fully assured, a visa may 
nevertheless be issued upon the posting of a bond with the Secretary of 
Homeland Security under terms and conditions prescribed by the consular 
officer.'' Additionally, 22 CFR 41.31(a)(1) references consular officer 
authority to require bonds from applicants for visas for temporary 
visits for business or pleasure (B-1/B-2) whose departure ``does not 
seem fully assured.'' These regulations reinforce the broad scope of 
the statutory authority of the Department and consular officers to 
require bonds to help ensure the timely departure from the United 
States of any visitor on a B-1/B-2 visa, when the alien is otherwise 
eligible for a visa, because an alien's departure after entering the 
United States can never be fully assured at the time of visa issuance 
or admission to this country.
3. FAM Guidance
    Despite the regulatory foundation for consular officers to issue 
visa bonds, historically, as a matter of policy, the Department has 
discouraged consular officers from exercising their authority to 
require bonds, as reflected in volume 9 of the Foreign Affairs Manual 
at section 403.9-8(A), which provides, ``[a]lthough 22 CFR 41.11(b)(2) 
permits consular officers, in certain cases, to require a maintenance 
of status and departure bond, it is Department policy that such bonds 
will rarely, if ever, be used.'' The FAM section indicates that this 
policy relies, in part, on an assessment that ``[t]he mechanics of 
posting, processing and discharging a bond are cumbersome.'' The Pilot 
Program will help the Department assess the operational feasibility of 
posting, processing, and discharging visa bonds, in coordination with 
the Department of Homeland Security, and inform any future decision 
concerning the possible use of visa bonds to address overstays. The 
Pilot Program will constitute an exception to that general guidance 
with respect to the categories of aliens covered by the Pilot Program, 
during the six month duration of the Pilot Program.

IV. Parameters of the Pilot Program

    The Pilot Program will last six months, beginning on the effective 
date of this TFR. The program will be limited to aliens who are: (1) 
Applying for B-1/B-2 nonimmigrant visas; (2) nationals of a listed 
country with an overstay rate of ten percent or higher per the DHS FY 
2019 Overstay Report; \19\ and (3) ineligible for a visa, but have been 
approved for a waiver of ineligibility by DHS under INA section 
212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A). Covered visa applicants will be 
required to post a bond in the amount of $5,000, $10,000, or $15,000, 
unless the bond requirement is waived. These parameters are explained 
below.
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    \19\ https://www.dhs.gov/sites/default/files/publications/20_0513_fy19-entry-and-exit-overstay-report.pdf.
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A. Countries With High Overstay Rates

    For purposes of the Pilot Program, the countries with visa overstay 
rates of ten percent or higher were determined based on the DHS FY 2019 
Overstay Report, which was published May 13, 2020.\20\ The Pilot 
Program focuses only on visa overstays by nonimmigrants of listed 
nationalities. Those countries of nationality were determined based on 
DHS published data on overstays by nationals of the country admitted to 
the United States for business or pleasure (B-1/B-2 nonimmigrant 
status) via air and sea ports of entry. The data set excluded Canada, 
Mexico, and countries participating in the VWP.\21\ The countries 
covered by the Pilot Program are: Afghanistan, Angola, Bhutan,

[[Page 74878]]

Burkina Faso, Burma, Burundi, Cabo Verde, Chad, Democratic Republic of 
the Congo (Kinshasa), Djibouti, Eritrea, the Gambia, Guinea-Bissau, 
Iran, Laos, Liberia, Libya, Mauritania, Papua New Guinea, Sao Tome and 
Principe, Sudan, Syria, and Yemen.\22\ The DHS FY 2019 Overstay Report 
report provides data on departures and overstays, by country, for 
foreign visitors to the United States who were expected to depart in FY 
2019 (October 1, 2018-September 30, 2019). For purposes of the DHS FY 
2019 Overstay Report and this Pilot Program, a ``visa overstay'' is an 
alien who was lawfully admitted to the United States and remains in the 
United States beyond the period of admission authorized by DHS. The 
initial authorized admission period is a fixed period determined by DHS 
at the time B-1/B-2 visa holders apply for admission to the United 
States, but in some circumstances, admission periods may be extended by 
application to U.S. Citizenship and Immigration Services (USCIS) for an 
extension of stay or change or adjustment of status. The threshold of a 
ten percent overstay rate was based on Section 2 of the Presidential 
Memorandum, which directed the Secretary of State to engage with the 
governments of countries with a total overstay rate greater than ten 
percent in the combined B-1 and B-2 nonimmigrant visa category based on 
the DHS FY 2018 Overstay Report.
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    \20\ Id.
    \21\ Eligibility for the Visa Waiver Program includes strict 
limits on overstay rates. INA section 217(c)(3) (8 U.S.C. 
1187(c)(3)).
    \22\ Id., Table 3 at page 23. For reasons explained in footnote 
18, above, Palau is excluded from the Pilot Program, despite having 
an overstay rate of of 15 percent.
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    Before developing the parameters for this Pilot Program, the 
Department engaged with the governments of countries with high overstay 
rates in the combined B-1 and B-2 nonimmigrant visa category to 
identify conditions contributing to high overstay rates among nationals 
of those countries and considered methods to address those conditions, 
as required by the Presidential Memorandum. In countries where other 
tools are not sufficiently effective at reducing overstays, deployment 
of an additional tool, like a visa bond, may be warranted. In setting 
the ten percent threshold, the Department also considered the number of 
countries that would be implicated at the different overstay threshold 
levels, what impact their inclusion might have on the Pilot Program 
generally, and what impact alternative thresholds would have on the 
volume of bonds that would be required. For the Pilot Program, the 
Department wanted to be certain that, if the visa bond process does 
prove to be unduly cumbersome, the Pilot Program would not require a 
volume of bonds that might cripple consular sections overseas.

B. Applicants Requiring DHS Waivers of Ineligibility

    As noted above, the purpose of the Pilot Program is to assess the 
operational feasibility of posting, processing, and discharging visa 
bonds, in coordination with DHS, to inform any future decision 
concerning the possible use of visa bonds to address overstays. The 
Department estimates that the parameters selected for the Pilot Program 
would result in 200-300 visas being issued following the posting of 
visa bonds, under normal travel conditions, with the actual number 
likely to be lower if travel is limited due to executive actions or 
unusual and unpredictable circumstances. The Department believes the 
operational feasibility of the visa bond process, as described above, 
can be assessed on the basis of a relatively small number of cases. 
Furthermore, the Department believes even if the burden of requiring 
visa bonds makes doing so operationally nonfeasible, requiring bonds in 
the relatively small number of cases anticipated under this pilot 
program will allow the Department and DHS to complete the Pilot Program 
without causing significant disruption to day-to-day operations. 
Accordingly, the Department is limiting the Pilot Program to aliens for 
whom DHS has granted a waiver of inadmissibility, relative to the 
pending B-1/B-2 visa application, to help ensure the volume of cases 
covered by the Pilot Program remains relatively small. Furthermore, the 
applicants covered by the Pilot Program would not be eligible for visas 
unless a consular officer or the Department exercises discretion to 
recommend a waiver of inadmissibility and DHS, at its discretion, 
grants the waiver. Selecting this criterion for the Pilot Program is 
not arbitrary; the covered applicants (those requiring a DHS waiver of 
inadmissibility) are distinguishable from other applicants issued visas 
in accordance with U.S. law, because their actions or particular 
circumstances rendered them otherwise ineligible for visas.

C. B-1/B-2 Visa Applicants Only

    Although INA section 221(g)(3) (8 U.S.C. 1201(g)(3)), authorizes 
consular officers to require visa bonds from applicants for B-1/B-2 
visas and F (student) visas, the Pilot Program is limited to B-1/B-2 
visa applicants, because their authorized period of stay after 
admission to the United States is fixed by DHS Customs and Border 
Protection (CBP) officers at the port of entry and typically lasts a 
matter of months, with a maximum of one year for business visitors 
pursuant to 8 CFR 214.2(b)(1), and typically six months for tourists, 
in accordance with 8 CFR 214.2(b)(2). In contrast, F visa applicants 
generally are admitted for the duration of their status, pursuant to 8 
CFR 214.2(f)(5), which commonly is multiple years. Because the Pilot 
Program will last only six months, F-1 nonimmigrant students, who are 
in most cases likely to be authorized to remain in the United States 
for multiple years, would be unlikely to complete the bond cycle (which 
ends with cancellation or breach of the bond), during the six-month 
duration of the Pilot Program. To help assess whether the bond process 
is operationally feasible, the Department needs the results of State 
and DHS experience at all stages of the bond process. B-1/B-2 visas 
issued to applicants covered by the Pilot Program will be annotated to 
reflect the visa bond requirement. That annotation may be taken into 
account by CBP when considering the appropriate authorized period of 
admission.

D. Bond Waiver Authority

    Section 41.11(c)(3) of the Department's regulations in title 22 CFR 
grants the Deputy Assistant Secretary for Visa Services discretionary 
authority to waive the bond requirement, for an alien or a category of 
aliens, if the Deputy Assistant Secretary assesses that a waiver would 
not be contrary to the national interest. Waivers may be recommended by 
consular officers, if they believe a waiver would advance a 
humanitarian interest, based on the applicant's stated purpose of 
travel, or a national interest, based on the stated purpose of travel 
and the applicant's employment. Because all visa applicants will be 
presumed to want a waiver of the bond requirement, and because the only 
information that might be provided by an applicant that would be 
relevant to a waiver decision is the applicant's purpose of travel and 
possibly employment, which already is requested from all applicants, 
there will be no bond waiver application process.

E. Bond Amounts

    In accordance with the statutory and regulatory framework described 
above, the Department, through consular officers, has broad authority 
to require a visa applicant to post a bond in such sum and with such 
conditions as would help ensure thealien's timely departure from the 
United States. To promote the efficiency of the Pilot Program and avoid 
arbitrary and inconsistent bond

[[Page 74879]]

amounts, the Department is setting guidelines for the bond amount. 
Because INA section 221(g)(3) (8 U.S.C. 1201(g)(3)), indicates consular 
officers must consider each visa applicant's personal circumstances in 
setting the bond amount, by its reference to the consular officer 
prescribing a bond's sum and conditions to be sufficient to insure 
``such alien will depart from the United States'' in a timely manner, 
the Department is providing consular officers three options for bond 
amounts: $5,000, $10,000, and $15,000. The Department believes these 
three levels will provide consular officers sufficient discretion to 
require, in each case, a bond in an amount that is sufficiently large 
to insure the applicant does not overstay, but not so burdensome as to 
be unpayable, taking into account the visa applicant's circumstances.
    Consular officers will be expected to set the bond amount at 
$10,000, unless the officer has reason to believe the visa applicant's 
circumstances would render the applicant unable to pay that amount (but 
yet remain sufficiently financed to pay all travel expenses through the 
period of intended stay in the United States), in which case the bond 
would be set at $5,000. Alternatively, if the applicant's 
circumstances, including the nature and extent of the applicant's 
contacts in the United States, would suggest a $10,000 bond would not 
be sufficient to insure the applicant would timely depart the United 
States, the officer would require a $15,000 bond as a condition of visa 
issuance. In making such determinations, consular officers will take 
into account the totality of the circumstances, including any 
information provided by the visa applicant on the visa application or 
in the visa interview regarding the applicant's purpose of travel, 
current employment, income, skills, and education.
    The consular officer's three options for bond amounts were set 
following consultations with DHS. In setting the amounts, the 
Department took into consideration costs associated with removal, 
including the full Immigration Enforcement Lifecycle cost (including 
mission support costs) ending with removal, as computed by DHS at 
approximately $14,000 per alien, and the total cost per alien 
associated with just the removal process, computed by DHS as $2,194. 
The Department viewed these costs as relevant, because an alien who 
overstays his or her visa and must be removed requires the U.S. 
government to incur immigration enforcement-related costs that 
otherwise would not be incurred. For the purposes of the Pilot Program, 
an alien who breaches a bond would generally forfeit the obligor's bond 
amount, which could be used, in part, to reimburse the U.S. government 
for expenses incurred in the collection of breached bonds and for 
expenses associated with the detention of illegal aliens, necessitated 
by the alien overstaying his or her visa.\23\ DHS/ICE will collect all 
bonds and retain the funds, as appropriate, in the instance that a bond 
is breached.
---------------------------------------------------------------------------

    \23\ 8 U.S.C. 1356(r)(3).
---------------------------------------------------------------------------

F. Duration of Pilot Program

    The Department will conduct the Pilot Program for six months, 
beginning on December 24, 2020. The Department determined, in 
consultation with DHS, that six months is an adequate period to ensure 
that multiple visa applicants will have completed the full bond cycle, 
from the visa interview, through travel to the United States, to a 
final determination of bond cancellation or breach. Experience with 
each of the steps of the bond cycle is necessary to assess the 
operational feasibility of posting, processing and discharging a visa 
bond, in coordination with the Department of Homeland Security. 
Following the end of the six-month period of the Pilot Program, 
consular officers no longer will require the posting of bonds based on 
the guidance set out in this TFR; however, any visa bonds posted as 
part of the Pilot Program will remain in effect until either breached 
or cancelled, in accordance with terms and conditions set out on ICE 
Form I-352, Immigration Bond, even after the six-month period has 
ended.

V. Visa Bond Procedures Under the Pilot Program

    Following a visa interview, a consular officer will determine if an 
applicant is otherwise eligible for a visa following the approval of a 
waiver of inadmissibility by DHS under INA section 212(d)(3) (8 U.S.C. 
1182(d)(3)), and if the applicant falls within the scope of the Pilot 
Program. If the consular officer does not have reason to believe a 
waiver of the bond requirement would advance a significant national 
interest or humanitarian interest, based on the applicants purpose of 
travel and employment, as described in the visa application and during 
the visa interview, then the consular officer will inform the applicant 
of the bond requirement and the amount of the required bond, whether 
$5,000, $10,000, or $15,000. The officer will present to the applicant: 
(1) A notice generally explaining the bond requirement and procedures 
for posting a cash bond or arranging for a U.S. Government-approved 
surety company to post the bond on the applicant's behalf and (2) ICE 
Form I-352, Immigration Bond. DHS regulations at 8 CFR 103.6 currently 
provide for the posting, processing, and cancellation of such visa 
bonds.
    After advising an applicant that he or she must post a bond, the 
consular officer will deny the visa under INA section 221(g) (8 U.S.C. 
1201(g)), but that denial may be overcome if a bond in the required 
amount is duly posted with ICE on the visa applicant's behalf. After 
being informed by DHS that a bond has been posted, the consular section 
where the visa applicant applied will rely on contact information 
provided by the applicant to contact the applicant regarding the final 
process to complete the visa adjudication. If the consular officer 
subsequently determines the applicant remains otherwise eligible for a 
visa, taking into account the DHS approval of a waiver of 
inadmissibility under INA section 212(d)(3) (8 U.S.C. 1182(d)(3)), the 
officer will issue the visa, valid for a single entry within three 
months of the date of visa issuance, with an annotation indicating the 
posting of a visa bond. This limited visa validity period is necessary 
to increase the likelihood travel is completed within a time frame 
conducive to data gathering from the Pilot Program. The visa annotation 
will alert CBP officers at ports of entry that the applicant is covered 
by the Pilot Program. If, upon further review, the consular officer 
determines the applicant is not eligible for the requested visa for 
reasons not covered by the waiver granted by DHS relative to the 
current visa application, the consular officer will deny the visa and 
the obligor on the bond will be entitled to cancellation of the visa 
bond.
    Following the timely departure from the United States of a visa 
holder for whom a bond was posted, the visa holder may pursue 
cancellation of the bond. A visa bond will be canceled if the visa 
holder substantially performs with respect to the terms and conditions 
of the bond as set forth in paragraph G(4) of Form I-352. Conversely, a 
visa bond will be breached when there has been a substantial violation 
of the terms and conditions set forth in paragraph G(4) of Form I-352. 
There are various ways a visa holder may demonstrate substantial 
performance of the terms and condition of the bond. For example, visa 
holders who present themselves to consular officials outside of the 
United States within 30 days of their departure from the United States, 
confirm their

[[Page 74880]]

identify, and provide information demonstrating that they departed the 
United States on or before the expiration of their authorized period of 
stay will have substantially complied with the visa bond requirements, 
so long as they maintained the conditions of their status while 
admitted to the United States. Where a visa holder pursues that course, 
information received by the consular officer will be forwarded to ICE, 
which is responsible for determinations of whether a bond has been 
breached pursuant to 8 CFR 103.6(c)(3), based on whether there has been 
``substantial performance'' of all the terms and conditions of the 
bond.
    When presenting themselves to consular officials outside the United 
States, visa holders may confirm their identity by presenting a 
passport and responding to such questions as the consular officer deems 
necessary to confirm identity. There are no particular documents 
required to demonstrate timely departure from the United States.\24\ An 
obligor on a visa bond also may request bond cancellation once the visa 
expires, if the visa holder did not travel to the United States. 
Generally, pursuant to 8 CFR 103.6(c)(3), the bond should be canceled 
when there has been ``substantial performance of all conditions imposed 
by the terms of the bond.'' The obligor on any canceled cash bond will 
be entitled to a full refund, along with any accrued interest. If a 
visa holder for whom a bond was posted fails to substantially comply 
with the terms and conditions set forth in paragraph G(4) of Form I-
352, the bond will be considered breached, and the amount deposited as 
security for the bond with ICE will be forfeited. If the bond is 
breached, the bond obligor will still receive the amount of any accrued 
interest on the cash bond.
---------------------------------------------------------------------------

    \24\ While no particular documents are required to demonstrate 
timely departure, travelers may present to the consular officer a 
variety of information, including but not limited to:
    1. Original boarding passes used to depart the United States;
    2. Photocopies of entry or departure stamps in a passport 
indicating entry to another country after departure from the United 
States (the traveler should copy all passport pages that are not 
completely blank, and include the biographical page containing his 
or her photograph); and
    3. Photocopies of other supporting evidence, such as:
    a. Dated pay slips or vouchers from an employer to indicate work 
in another country after departure from the United States,
    b. Dated bank records showing transactions to indicate presence 
in another country after departure from the United States,
    c. School records showing attendance at a school outside the 
United States after departure from the United States, and
    d. Dated credit card receipts showing the traveler's name, with 
the credit card number deleted, for purchases made after leaving the 
United States.
---------------------------------------------------------------------------

    Following the end of the six-month period of the Pilot Program, 
consular officers no longer will require the posting of bonds based on 
the guidance set out in this TFR; however, any bonds posted under the 
Pilot Program will remain in effect until either breached or cancelled 
in accordance with their terms of issuance.
    For visa applicants required to post a visa bond, an ICE Form I-352 
must be submitted to, and approved by, ICE. All terms and conditions 
set out on ICE Form I-352 applicable to visa bonds shall apply. The 
obligor on the bond, whether a person who posts a cash bond on behalf 
of the visa applicant or a surety company that posts the bond, will be 
informed if the visa applicant fails to comply with the terms of the 
visa bond and, consequently, the bond has been breached. The procedures 
for determining and enforcing a breach are set out on ICE Form I-352 
and in DHS regulations, including 8 CFR 103.6.

Appeal of a Bond Breach Determination

    The rights relating to the appeal of an ICE determination of a bond 
breach, including which rights would accrue after ICE issues a breach 
determination on Form I-323, are detailed in the instructions on ICE 
Form I-352 and USCIS Form I-290B.

VI. Regulatory Findings

Administrative Procedure Act (APA)

    This temporary final rule is exempt from notice and comment under 
the foreign affairs exception of the Administrative Procedure Act 
(APA), 5 U.S.C. 553(a). This temporary final rule codifies a necessary 
change to U.S. foreign policy, including its visa policy. In the 
Presidential Memorandum, President Trump referred to countries with 
overstay rates greater than ten percent in the combined B-1 and B-2 
nonimmigrant visa category, based on the DHS FY 2018 Overstay Report, 
as having high overstay rates and ordered the Secretary of State to 
take action to address those high overstay rates, in consultation with 
the Attorney General and the Secretary of Homeland Security. See 
Presidential Memorandum at Section 2. Reducing the incidence of aliens 
remaining in the United States beyond their authorized period of stay 
has, particularly since issuance of the Presidential Memorandum, 
involved worldwide diplomatic engagement between the United States and 
foreign governments. The subject matter of this temporary final rule 
directly involves a foreign affairs function of the United States, 
directly implicating relationships between the United States and the 
specific countries whose nationals may be subject to the Pilot Program. 
The Pilot Program is being studied as a potential diplomatic tool to 
encourage foreign governments to take all appropriate actions to ensure 
that their nationals timely depart the United States after making 
temporary visits. Therefore, this temporary final rule clearly and 
directly impacts the foreign affairs functions of the United States and 
``implicat[es] matters of diplomacy directly.'' City of N.Y. v. 
Permanent Mission of India to the U.N., 618 F.3d 172, 202 (2d Cir. 
2010).
    The foreign-affairs exception covers the temporary final rule, as 
it is ``linked intimately with the Government's overall political 
agenda concerning relations with another country.'' Am. Ass'n of 
Exporters & Importers-Textile & Apparel Grp. v. United States, 751 F.2d 
1239, 1249 (Fed. Cir. 1985).
    The Pilot Program is a tool of diplomacy to influence actions by 
certain foreign governments that are a high priority of the President, 
as reflected in the Presidential Memorandum, and important to the 
relationship between the United States and those countries. By 
requiring visa bonds for certain visa applicants from the listed 
countries with overstay rates for B-1/B-2 visa holders that are ten 
percent or higher, the Pilot Program aims to encourage those countries 
to cooperate with the United States in ensuring timely departure of 
their citizens/nationals from the United States. The Department's focus 
on these countries will demonstrate the United States' intolerance of 
high overstay rates and encourage the foreign governments to cooperate 
in addressing overstays by their nationals. Accordingly, this temporary 
final rule is properly viewed as one that ``clearly and directly 
involve[s] activities or actions characteristic to the conduct of 
international relations.'' Capital Area Immigrants' Rights Coal. v. 
Trump, No. CV 19-2117, 2020 WL 3542481,*18 (D.D.C. June. 30, 2020).
    Additionally, undesirable international consequences would follow 
if the temporary final rule were subjected to a notice and comment 
period, because a limited number of countries had an overstay rate of 
ten percent or higher in FY 2019, so notice and comment would invite 
those countries to publish views on matters that are sensitive and 
inherently governmental, and require a public response from the U.S. 
government to country-specific concerns. Thus, opening the temporary 
final rule to

[[Page 74881]]

notice and comment would likely lead to ``the public airing of matters 
that might enflame or embarrass relations with other countries.'' Zhang 
v. Slattery, 55 F.3d 732, 744 (2d Cir. 1995), superseded on other 
grounds by statute, 8 U.S.C. 1101(a)(42).

Regulatory Flexibility Act/Executive Order 13272: Small Business

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., requires 
agencies to perform an analysis of the potential impact of regulations 
on small entities when regulations are subject to the notice and 
comment procedures of the APA. Because this temporary final rule is 
exempt from notice and comment rulemaking requirements under 5 U.S.C. 
553, it is exempt from the regulatory flexibility analysis requirements 
set forth by the Regulatory Flexibility Act (5 U.S.C. 603 and 604). 
Furthermore, this temporary final rule will not have a significant 
economic impact on a substantial number of small entities. Therefore, a 
regulatory flexibility analysis under the Regulatory Flexibility Act, 
as amended, is not required.

Unfunded Mandates Act of 1995

    The Unfunded Mandates Reform Act of 1995, 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 State, 
local, or tribal governments, or by the private sector. This temporary 
final rule does not require the Department to prepare a statement 
because it will not result in any such expenditure, nor will it 
significantly or directly affect small governments, including State, 
local, or tribal governments, or the private sector. This temporary 
final rule involves visas for aliens, and does not directly or 
substantially affect State, local, or tribal governments, or 
businesses.

Congressional Review Act of 1996

    The Office of Information and Regulatory Affairs has determined 
that this temporary final rule is not a major rule as defined in 5 
U.S.C. 804, for purposes of congressional review of agency rulemaking. 
This temporary final 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 has reviewed this rule to ensure its 
consistency with the regulatory philosophy and principles set forth in 
Executive Order 12866. This rule allows the Department to set out the 
scope and procedures for a Pilot Program under which consular officers 
will require a visa bond in the amount of $5,000, $10,000, or $15,000, 
as determined appropriate by the consular officer as a condition of 
visa issuance for certain aliens applying for visas as temporary 
visitors for business or pleasure (B-1/B-2). The Pilot Program is 
designed to assess the operational feasibility of posting, processing, 
and discharging visa bonds, in coordination with the Department of 
Homeland Security (DHS), including the burden it will place on the 
government and the challenges associated with implementation of a bond 
program. It is not designed to assess the effectiveness of visa bonds 
in effectuating timely departure from the United States. The result 
will inform any future decision on the possible use of visa bonds for 
combatting high nonimmigrant visa overstays which is a priority 
announced in the Presidential Memorandum on Combating High Nonimmigrant 
Overstay Rates issued on April 22, 2019.
    Based on a review of visa statistics from recent years, the 
Department has determined that the number of nonimmigrants expected to 
fall within the scope of the Pilot Program will not be greater than 200 
to 300. That estimate is based on normal travel conditions, with the 
actual number likely to be lower if travel is limited due to executive 
actions or unusual and unpredictable circumstances. If visa bonds are 
required for 300 visa applicants, and the average bond is $10,000 (from 
options of $5,000, $10,000, and $15,000), the initial cost of bonds 
will be $3,000,000. However, assuming all nonimmigrants for whom bonds 
are posted comply with the terms and conditions of the bond, the actual 
bond amount is a temporary expenditure that will be fully refunded, 
with applicable interest, if cash bonds are posted. If surety bonds are 
posted, then the cost to nonimmigrants for whom bonds must be posted 
would depend on the contractual arrangements underlying each surety 
bond. Due to the lack of precedent for this visa bond program, the 
Department does not have data to substantiate any estimate of the cost 
to nonimmigrants for whom surety bonds are posted; however, the maximum 
possible amount likely would be the full amount of the average bond 
multiplied by the maximum estimated number of visa applicants subject 
to the bond, for a total of $3,000,000, if surety companies were to 
charge 100 percent of the bond amount and all applicants posted surety 
bonds, rather than cash bonds.
    The estimated amount of time needed for an average respondent to 
complete ICE Form I-352 is thirty minutes (.50 hours) per response. See 
84 FR 44913. The estimated additional time burden associated with this 
temporary final rule for visa applicants, who will have to complete an 
ICE Form I-352, arrange for the posting of a bond, and return to a 
consular section following their departure from the United States, is 
two hours. Using the average hourly wage for all private, non-farm, 
payrolls as calculated by the Bureau of Labor Statistics for March 
2019, $27.70, multiplied by a factor of 1.479 (to account for overhead 
costs) gives a fully-loaded wage of $40.97. That wage multiplied by the 
estimated time burden of two hours per visa applicant for 300 
applicants yields a total burden on applicants of $24,582 in time plus 
up to $3,000,000 for bond costs, for a total to applicants of 
$3,024,582.
    During the time that this temporary final rule is in effect, surety 
companies will need to learn about the Pilot Program and its 
requirements. The Department consulted DHS representatives to benefit 
from their experience in this area and, based on that consultation, 
estimates and assumes that: each Treasury-certified surety company 
currently issuing immigration bonds will conduct a regulatory review; 
this task is equally likely to be performed by either an in-house 
attorney or by a non-attorney at each surety company; it will take 
eight hours for the regulatory review by either an in-house attorney or 
a non-attorney, such as an insurance agent (or equivalent), at each 
surety. To calculate the familiarization costs, the estimated review 
time of eight hours was multipled by the average hourly loaded wage 
rate of an attorney and an insurance agent, $73.26.\25\ The

[[Page 74882]]

familiarization cost per surety company was calculated to be $586.08 (8 
hours x $73.26). For FY 2019, nine sureties posted immigration bonds 
with ICE. The total estimated regulatory familiarization cost for all 
sureties currently issuing immigration bonds was calculated to be 
$5,275 ($73.26 x 8 hours x 9 sureties).
---------------------------------------------------------------------------

    \25\ This represents an average of an in-house attorney's fully 
loaded hourly wage rate and an insurance agent's fully loaded hourly 
wage rate. Bureau of Labor Statistics, Occupational Employment 
Statistics May 2018, Standard Occupational Code 23-1011 Lawyers, 
Mean hourly wage $69.34, https://www.bls.gov/oes/2018/may/oes231011.htm. The fully loaded wage rate is calculated using the 
percentage of wages to total compensation, found in the Bureau of 
Labor Statistics, Employer Costs for Employee Compensation June 
2018, Table 5. Employer costs per hour worked for employee 
compensation and costs as a percent of total compensation: private 
industry workers, by major occupational group, Management, 
Professional, and related Group, https://www.bls.gov/news.release/archives/ecec_09182018.pdf. Wages are 68.7 percent of total 
compensation. $100.93 = $69.34/0.687. Bureau of Labor Statistics, 
Occupational Employment Statistics May 2018, Standard Occupational 
Code 41-3021 Insurance Sales Agents, Mean hourly wage $32.64, https://www.bls.gov/oes/2018/may/oes413021.htm. The fully loaded wage rate 
is calculated using the percentage of wages to total compensation, 
found in the Bureau of Labor Statistics, Employer Costs for Employee 
Compensation June 2018, Table 5. Employer costs per hour worked for 
employee compensation and costs as a percent of total compensation: 
private industry workers, by major occupational group, Sales and 
Office Occupational Group, https://www.bls.gov/news.release/archives/ecec_09182018.pdf. Wages are 71.6 percent of total compensation. 
$45.59 = $32.64/0.716. $73.26 = ($45.59 + $100.93)/2.
---------------------------------------------------------------------------

    The total Government cost associated with this rule is $70,911. 
That amount includes printing costs, the collection and processing 
burden for each form, and additional work from consular officers. The 
total printing costs equates to $225, which is estimated by multiplying 
the maximum number of aliens subject to the Pilot Program under the 
temporary rule (300) by the cost of printing two forms per response for 
$0.75. The collection and processing of each Form I-352 takes an 
average of 6 hours and will be conducted by a government employee with 
an average hourly wage plus overhead estimated to be $28.02. The total 
cost to the government of collecting and processing the ICE Form I-352 
for bonds issued under this temporary final rule, including costs 
associated with appeals, cancellation or bond breach, is estimated to 
be $50,436 ($28.02 x six hours x 300 bonds). The estimated additional 
time a consular officer with an average hourly wage of $135 will expend 
for each case subject to a bond is 30 minutes. The total cost 
associated with additional work from consular officers is estimated to 
be $20,250. If a traveler breaches a surety bond posted pursuant to 
this temporary final rule, ICE will incur some cost in collecting on 
the bond. Because ICE has no reliable basis for estimating the number 
of travelers that will post surety bonds, as opposed to cash bonds, or 
the percentage of travelers posting bonds who will breach the terms of 
the bond, ICE is unable to estimate the cost associated with enforcing 
bond breaches. Each agency will bear the costs associated with the 
activities of its personnel.
    The Office of Management and Budget (OMB) has determined that this 
is a significant, though not economically significant, regulatory 
action under Executive Order 12866. As such, OMB has reviewed this 
regulation accordingly.

Executive Order 13563

    Along with Executive Order 12866, Executive Order 13563 direct 
agencies to assess costs and benefits of available regulatory 
alternatives and, if regulation is necessary, to select regulatory 
approaches that maximize net benefits (including potential economic, 
environmental, public health and safety effects, distributed impacts, 
and equity). The Department has reviewed the temporary final rule under 
Executive Order 13563 and has determined that this rulemaking is 
consistent with the guidance therein.

Executive Orders 12372 and 13132--Federalism

    This temporary final rule 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. Nor will the temporary final rule 
have federalism implications warranting the application of Executive 
Orders 12372 and 13132.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    The Department has determined that this rulemaking will not have 
tribal implications, will not impose substantial direct compliance 
costs on Indian tribal governments, and will not pre-empt tribal law. 
Accordingly, the requirements of Section 5 of Executive Order 13175 do 
not apply to this rulemaking.

Executive Order 12988--Civil Justice Reform

    The Department has reviewed the temporary final rule in light of 
sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate 
ambiguity, minimize litigation, establish clear legal standards, and 
reduce burden.

Executive Order 13771--Reducing Regulation and Controlling Regulatory 
Costs

    Executive Order 13771 directs all agencies to repeal at least two 
existing regulations for each new regulation issued in FY 2017 and 
thereafter. It further directs agencies that the ``total incremental 
costs of all regulations should be no greater than zero'' in FY 2017 
and, for subsequent years, no greater than a total amount of 
incremental costs that the director of the Office of Management and 
Budget (OMB) determines. This temporary final rule is exempt from the 
Executive Order, however, because it is de minimis.

Paperwork Reduction Act

    This temporary final rule does not impose any new reporting or 
recordkeeping requirements subject to the Paperwork Reduction Act, 44 
U.S.C. Chapter 35. The Department of State will rely on form I-352 from 
the Department of Homeland Security, OMB Control Number 1653-0022, to 
implement the provisions of this rule. The Department of Homeland 
Security has accounted for this use of the form in its information 
collection requests to the Office of Management and Budget.

List of Subjects in 22 CFR Part 41

    Administrative practice and procedure, Aliens, Passports and visas.

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

PART 41--VISAS: DOCUMENTATION OF NONIMMIGRANTS UNDER THE 
IMMIGRATION AND NATIONALITY ACT, AS AMENDED

0
1. The authority citation for part 41 continues to read as follows:

    Authority: 8 U.S.C. 1101; 1102; 1104; 1182; 1184; 1185 note 
(section 7209 of Pub. L. 108-458, as amended by section 546 of Pub. 
L. 109-295); 1323; 1361; 2651a.


0
2. Amend Sec.  41.11 by adding paragraph (c) to read as follows:


Sec.  41.11  Entitlement to nonimmigrant status.

* * * * *
    (c) Visa Bond Pilot Program--(1) Summary. This paragraph (c) 
establishes a pilot program (Visa Bond Pilot Program) implementing 
section 221(g)(3) of the Immigration and Nationality Act (INA). Under 
the Visa Bond Pilot Program, consular officers will require a 
Maintenance of Status and Departure Bond (Visa Bond) be posted with the 
U.S. Department of Homeland Security, as a condition of visa issuance, 
for certain visa applicants.
    (2) Visa Bond Pilot Program parameters. Under the Visa Bond Pilot 
Program, consular officers will require Visa Bonds be posted by visa 
applicants who meet the following three criteria:
    (i) Apply for a B-1 and/or B-2 nonimmigrant visa;

[[Page 74883]]

    (ii) Are nationals of one of the following countries, which had an 
overstay rate of ten percent or higher in Fiscal Year 2019, according 
to the DHS FY 2019 Overstay Report, https://www.dhs.gov/publication/entryexit-overstay-report, for B-1/B-2 visa applicants: Afghanistan, 
Angola, Bhutan, Burkina Faso, Burma, Burundi, Cabo Verde, Chad, 
Democratic Republic of the Congo (Kinshasa), Djibouti, Eritrea, the 
Gambia, Guinea-Bissau, Iran, Laos, Liberia, Libya, Mauritania, Papua 
New Guinea, Sao Tome and Principe, Sudan, Syria, and Yemen; and
    (iii) Are granted a DHS waiver of inadmissibility under INA section 
212(d)(3)(A) prior to visa issuance. Consular officers will set the 
Visa Bond amount at $5,000, $10,000, or $15,000, based on a consular 
officer's assessment of which amount is sufficient to ensure the alien 
will not remain in the United States beyond the end of the alien's 
authorized period of stay, while not exceeding what the alien can pay. 
Visas issued under the Visa Bond Pilot Program will be valid for a 
single entry to the United States within three months of the date of 
visa issuance.
    (3) Bond waiver authority. The Deputy Assistant Secretary for Visa 
Services may waive the bond requirement, for an alien, country, or a 
category of aliens, if the Deputy Assistant Secretary assesses that 
such a waiver is not contrary to the national interest. A waiver of the 
bond requirement may be recommended to the Deputy Assistant Secretary 
for Visa Services by a consular officer where the consular officer has 
reason to believe the waiver would advance a national interest or 
humanitarian interest. There will be no procedure for visa applicants 
to apply for a waiver of the bond requirement. Consular officers will 
determine whether a waiver would advance a significant national 
interest or humanitarian interest based on the applicants purpose of 
travel and employment, as described in the visa application and during 
the visa interview.
    (4) Bond procedures. A Visa Bond required under paragraph (c) of 
this section must be submitted to and approved by DHS. Upon the posting 
of such bond, DHS will notify the appropriate consular section 
overseas. Under this Visa Bond Pilot Program, Visa Bonds will be 
administered by U.S. Immigration and Customs Enforcement (ICE) in 
accordance with regulations, procedures, and instructions promulgated 
by DHS applicable to ICE Form I-352, Immigration Bond. A Visa Bond will 
be canceled when a visa holder substantially performs with respect to 
the terms and conditions of the Visa Bond as set forth in paragraph 
G(4) of Form I-352. Conversely, a Visa Bond will be breached when there 
has been a substantial violation of the terms and conditions set forth 
in paragraph G(4) of Form I-352. To demonstrate that they performed 
within the bond requirements, visa holders may, for example, schedule 
an appointment at a consular section outside the United States within 
30 days of their departure from the United States and, after 
establishing their identity through personal appearance and 
presentation of a passport, provide information to a consular officer 
confirming they departed the United States on or before the expiration 
of their authorized period of stay. Upon doing so, visa holders will 
have substantially performed bond requirements, provided they 
maintained the conditions of their status while admitted to the United 
States. Visa holders who do not appear at a consular section still may 
ensure cancellation of the bond if the visa holder substantially 
complies with the terms and conditions of the Visa Bond as set forth in 
paragraph G(4) of Form I-352 and provides ICE probative documentation 
of timely departure, if required. Visa holders who timely file an 
application for extension of stay or change of status are not deemed to 
be in breach of bond.
    (5) Appeal of bond breach determination. A determination of a 
breach bond may be appealed in accordance with instructions on the 
applicable DHS forms governing bond breach determinations and appeal 
rights.
    (6) Effect on other law. Nothing in this paragraph (c) shall be 
construed as altering or affecting any other authority, process, or 
regulation provided by or established under any other provision of 
Federal law.

Carl C. Risch,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 2020-24223 Filed 11-23-20; 8:45 am]
BILLING CODE 4710-06-P