Period of Admission and Extensions of Stay for Representatives of Foreign Information Media Seeking To Enter the United States, 61959-61963 [2022-21898]

Agencies

• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 87, Number 197 (Thursday, October 13, 2022)]
[Rules and Regulations]
[Pages 61959-61963]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-21898]



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Rules and Regulations
                                                Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
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under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 

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Federal Register / Vol. 87, No. 197 / Thursday, October 13, 2022 / 
Rules and Regulations

[[Page 61959]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 214

[CBP Dec. 22-18]
RIN 1651-AB49


Period of Admission and Extensions of Stay for Representatives of 
Foreign Information Media Seeking To Enter the United States

AGENCY: U.S. Customs and Border Protection, DHS.

ACTION: Final rule.

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SUMMARY: This rule amends Department of Homeland Security (DHS) 
regulations to better facilitate the U.S. Government's ability to 
achieve greater reciprocity between the United States and the People's 
Republic of China (PRC) relative to the treatment of representatives of 
foreign information media of the respective countries seeking entry 
into the other country. For entry into the United States, such foreign 
nationals would seek to be admitted in I nonimmigrant status as bona 
fide representatives of foreign information media. Currently, foreign 
nationals who present a passport issued by the PRC, with the exception 
of Hong Kong Special Administrative Region (SAR) or Macau SAR passport 
holders, may be admitted in or otherwise granted I nonimmigrant status 
until the activities or assignments consistent with the I 
classification are completed, not to exceed 90 days. This rule amends 
the DHS regulations to remove the set period of stay of up to 90 days 
and to allow the Secretary of Homeland Security (Secretary) to 
determine the maximum period of stay, no longer than one year, for PRC 
I visa holders, taking into account certain factors. This rule also 
announces the Secretary has determined the maximum period of stay for 
which a noncitizen who presents a passport issued by the PRC (other 
than a Hong Kong SAR passport or a Macau SAR passport) may be admitted 
in or otherwise granted I nonimmigrant status is one year.

DATES: This rule is effective on October 13, 2022.

FOR FURTHER INFORMATION CONTACT: Mr. Paul Minton, Program Manager, 
Enforcement Programs, Office of Field Operations, U.S. Customs and 
Border Protection, at 202-344-1581 or [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background and Purpose

A. Legal Authority

    The Secretary of Homeland Security (Secretary) has broad authority 
to administer and enforce the immigration and naturalization laws of 
the United States. See section 103(a)(1) of the Immigration and 
Nationality Act of 1952 (Pub. L. 82-414, 66 Stat. 163), as amended (8 
U.S.C. 1103(a)(1)) (INA); see also 6 U.S.C. 202. The Secretary is 
authorized to establish such regulations as he or she deems necessary 
to carry out this authority under the immigration laws. See INA 
103(a)(3) (8 U.S.C. 1103(a)(3)). Section 214(a)(1) of the INA 
specifically authorizes the Secretary to prescribe regulations 
specifying the period of admission, as well as any conditions, for the 
admission of nonimmigrants to the United States.\1\ See 8 U.S.C. 
1184(a)(1).
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    \1\ See also sections 402, 1512, and 1517 of the Homeland 
Security Act of 2002 (Pub. L. 107-296, 116 Stat. 2142, 2187), as 
amended (6 U.S.C. 202, 552, and 557) (regarding transfer of 
authority to enforce immigration laws and prescribe regulations 
necessary to carry out that authority from the Attorney General to 
the Secretary).
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    The Secretary has authorized the Commissioner of U.S. Customs and 
Border Protection (CBP) to enforce and administer the immigration laws 
relating to the inspection and admission of noncitizens \2\ seeking 
admission to the United States, including the authority to make 
admissibility determinations and set the duration, terms, and 
conditions of admission. See Delegation Order 7010.3, II.B.5 (Revision 
No. 03.1, Incorporating Change 1) (Nov. 25, 2019). U.S. Citizenship and 
Immigration Services (USCIS) is authorized to consider applications for 
a change of nonimmigrant status under section 248 of the INA, 8 U.S.C. 
1258, including establishing the authorized period of stay in the new 
nonimmigrant status. See 6 U.S.C. 271(b); 8 CFR part 248. USCIS also is 
authorized to consider applications for an extension of stay in 
nonimmigrant status. See 6 U.S.C. 271(b); 8 CFR 214.1(c).
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    \2\ For purposes of this document, CBP uses terms such as 
``noncitizen'' or ``nonimmigrant'' in place of the term ``alien.'' 
However, the INA and Department of Homeland Security (DHS) 
regulations continue to use the term ``alien,'' as defined by the 
INA.
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    Section 101(a)(15)(I) of the INA establishes the I nonimmigrant 
classification for noncitizens wishing to visit the United States 
temporarily as representatives of foreign information media. The INA 
established the I visa category as: ``a new class of nonimmigrants and 
is designed to facilitate, on a basis of reciprocity, the exchange of 
information among nations. It is intended that the class is to be 
limited to aliens who are accredited as members of the press, radio, 
film or other information media by their employer.'' S. Rep. No. 82-
1137 at 21 (1952); H.R. Rep. No. 1365 at 45 (1952).
    In order to qualify as a nonimmigrant under the I classification, a 
noncitizen must be a bona fide representative of foreign press, radio, 
film or other foreign information media that has its home office in a 
foreign country, and must seek to enter the United States solely to 
engage in such employment. See INA 101(a)(15)(I) (8 U.S.C. 
1101(a)(15)(I)). In addition, the statute expressly requires that such 
a visa or status be provided ``upon a basis of reciprocity.'' Id.; see 
also INA 214(a)(1) (providing that the admission of nonimmigrants to 
the United States ``shall be for such time and under such conditions as 
the [Secretary] may by regulations prescribe'') (8 U.S.C. 1184(a)(1)).

B. Current Admission Process for I Visa Holders

    Foreign nationals visiting the United States temporarily as 
representatives of information media must possess a nonimmigrant I visa 
for admission. INA 101(a)(15)(I), 212(a)(7)(B)(i)(II) (8 U.S.C. 
1101(a)(15)(I), 1182(a)(7)(B)(i)(II)). In order to obtain an I visa, 
foreign travelers must apply for a visa with the U.S. Department of 
State and obtain the visa prior to traveling to the United States. Id.; 
see also INA 221-222, 273(a) (8 U.S.C. 1201-1202, 1323(a)); 22 CFR 
41.52, 41.101-41.122. An I visa holder seeking entry into the United 
States must appear at a port of entry and

[[Page 61960]]

establish, to the satisfaction of the CBP officer, that he or she is 
admissible as an I nonimmigrant. See INA 235(a), (b)(2)(A), and 291 (8 
U.S.C. 1225(a), (b)(2)(A), and 1361); 8 CFR 212.1, 235.1(f)(1); see 
also INA 221(h) (providing that issuance of a visa does not entitle the 
visa holder to admission to the United States). The noncitizen must 
also be otherwise admissible and not subject to other grounds of 
inadmissibility. See generally INA 212(a) (8 U.S.C. 1182(a)).
    The CBP officer will inspect the noncitizen, including by reviewing 
the noncitizen's travel documents, collecting the noncitizen's 
biometric data (i.e., fingerprints and photograph), interviewing the 
noncitizen, and collecting any applicable forms or fees. INA 235(a) (8 
U.S.C. 1225(a)); 8 CFR 235.1(f) and (h). Unless otherwise exempted, 
each arriving nonimmigrant who is admitted to the United States will be 
issued a Form I-94 as evidence of the terms of admission. See 8 CFR 1.4 
and 235.1(h).\3\ The period of time that the noncitizen is authorized 
to remain in the United States is referred to as the ``period of 
admission'' or the ``period of stay.''
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    \3\ The term ``issuance'' includes the creation of an electronic 
record of admission, or arrival/departure by DHS following an 
inspection performed by an immigration officer. See 8 CFR 1.4. In 
most cases, CBP issues the Form I-94 electronically. The traveler 
may retrieve it through a CBP website, https://i94.cbp.dhs.gov, or 
via the CBP OneTM mobile application.
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C. Current Period of Admission and Extensions of Stay for I Visa 
Holders

    Prior to May 2020, the DHS regulation at 8 CFR 214.2(i) specified 
that an I visa holder, regardless of country of nationality, ``may'' be 
authorized admission for the duration of his or her employment. DHS and 
its predecessor, the Immigration and Naturalization Service (INS), had 
long interpreted the regulation as providing that I visa holders are 
authorized admission for the duration of status for an indefinite 
period, rather than for a set period of time. See generally Memorandum, 
INS Office of the General Counsel, Genco Op. No. 94-23, 1994 WL 
1753127, at *3 (May 9, 1994) (``[R]epresentatives of information media 
are not currently restricted by statutory language to any temporary 
period. The regulations authorize their admission for `duration of 
status.' ''). The term ``duration of status'' refers to the period of 
time in which a noncitizen continues to meet the terms and conditions 
of his or her admission, including that he or she remains employed with 
the same employer and uses the same information medium. 8 CFR 
214.2(i)(1-1-20 Ed.). The regulation states that the admission requires 
that the noncitizen maintain the same information medium and employer 
until ``he or she obtains permission'' to change either. Id.
    While an interpretation of the regulation requiring admission for 
an indefinite period of the duration of status is reasonable, it is 
also reasonable for DHS to interpret the regulation to allow DHS, in 
its discretion, to admit I visa holders for a set time period. In May 
2020, DHS promulgated a final rule amending 8 CFR 214.2(i) to provide 
that the admission of I visa holders presenting passports issued by the 
People's Republic of China (PRC), with the exception of Hong Kong 
Special Administrative Region (SAR) and Macau SAR passport holders, 
would no longer be for an indefinite period, but would instead be for a 
period not to exceed 90 days. See Period of Admission and Extensions of 
Stay for Representatives of Foreign Information Media Seeking To Enter 
the United States, 85 FR 27645, May 11, 2020 (May 2020 rule). That rule 
also provides that such I visa holders are permitted to seek subsequent 
extensions of stay, each one limited to no more than 90 days. The rule 
was promulgated by DHS, because DHS determined that admitting I visa 
holders from the PRC for an indefinite period was not sufficiently 
reciprocal to the PRC's treatment of U.S. journalists or in alignment 
with U.S. foreign policy at that time.

D. Purpose and Summary

    Since the promulgation of the May 2020 rule, DHS has determined 
that it should be more fluid in its approach to I visa holders from the 
PRC. The preamble of the May 2020 rule detailed how information 
received from the Department of State, as well as open source 
information, demonstrated a suppression of independent journalism in 
the PRC, including an increasing lack of transparency and consistency 
in the admission periods granted to foreign journalists, including U.S. 
journalists. According to the Foreign Correspondents' Club of China 
(FCCC), the PRC has forced out at least 27 reporters since 2013, either 
through expulsion or by non-renewal of visas, including 18 foreign 
correspondents from U.S.-based news outlets, such as The New York 
Times, The Wall Street Journal, and The Washington Post in 2020.\4\
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    \4\ ``Track, Trace, Expel: Reporting on China Amid a Pandemic: 
FCCC Report of Media Freedom in 2020,'' available at https://fccchina.org/wp-content/uploads/2022/01/2020-FCCC-Report.pdf?x69980 
(2020 FCCC Report).
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    Further, concurrent with the May 2020 rule, the PRC Government 
publicly targeted foreign media, describing them as politically hostile 
and a threat to local stability. U.S. and other foreign journalists 
reported a series of online threats and uncensored amplification of 
their personal details on PRC social media platforms. Likewise, 
beginning in 2020, British and Australian journalists reported credible 
threats of targeted lawsuits and exit bans, forcing immediate and 
emergency moves to flee the PRC. In September 2020, the last two 
Australian reporters working for Australian media in the PRC left the 
country following an unprecedented diplomatic stand-off with PRC 
security forces. The PRC security forces had sought to impose a strict 
exit ban until the reporters answered questions about their ties to 
Cheng Lei, an Australian reporter working for PRC state media who was 
detained and held incommunicado since August 2020. Likewise, in March 
2021, a BBC journalist fled the PRC amid intense, sustained, and 
targeted threats from the Chinese authorities. The BBC confirmed the 
reporter and his team ``faced surveillance, threats of legal action, 
obstruction and intimidation wherever they tried to film.'' \5\
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    \5\ https://www.bbc.com/news/world-asia-china-56586655.
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    The 2020 FCCC Report further revealed that foreign journalists are 
receiving severely shortened visa admission periods and reporting 
credentials, one for just two and a half months. Moreover, the 2020 
FCCC Report stated that foreign journalists applying for visa renewals 
face numerous challenges, with a record number of at least 12 
correspondents receiving visas of six months or less. One out of six 
correspondents reported being forced to use a series of short visas of 
between one and three months in duration so that they could live and 
work in China; the typical duration of PRC-issued credentials is 12 
months.
    There remains little transparency on visa issuances and press 
credentials, as both are subject to change without notice and are often 
shortened or revoked in apparent retribution for journalists' or their 
colleagues' reporting efforts. In September 2020, the PRC issued new 
rules that confirmed that any reporter who left the PRC would have his 
or her visa immediately cancelled. Journalists would therefore be 
forced to reapply for new visas if they wanted to return.

[[Page 61961]]

    Conditions for foreign journalists did not improve for most of 
2021.\6\ In May 2021, the PRC's Ministry of Foreign Affairs confirmed 
new visa rules for foreign correspondents, permitting all but U.S. 
reporters working for U.S. outlets to exit and return to China on their 
existing J visas, the PRC visa category for foreign journalists. U.S. 
citizens working for American media confirm that PRC Government 
authorities told them they would not be able to leave the PRC and 
expect to come back.
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    \6\ ``2021 Locked Down or Kicked Out Covering China: FCCC Report 
of Media Freedom in 2021,'' available at https://fccchina.org/wp-content/uploads/2022/01/2021-FCCC-final.pdf?x69980 (2021 FCCC 
Report).
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    However, in November 2021, the PRC committed to a series of 
discrete actions that signal progress. The PRC committed to issue visas 
for a group of U.S. reporters, provided they are eligible under all 
applicable laws and regulations. The PRC also committed to increase 
visa validity for U.S. journalists to one year and to permit U.S. 
journalists already in the PRC to freely depart and return, which they 
had previously been unable to do. The United States also committed to 
increase visa validity for PRC journalists to one year and provide the 
same access and freedom of movement for PRC journalists in the United 
States. Both the PRC and the United States agreed to begin the process 
of extending duration of stay for each country's respective 
journalists.
    Accordingly, DHS is issuing this rule to continue to address the 
actions of the PRC Government while seeking to enhance reciprocity in 
the treatment of U.S. journalists in the PRC. The current DHS 
regulations limit PRC journalists to initial stays of up to 90 days. 
DHS seeks to enhance reciprocity in a flexible and fluid manner, so 
instead of amending the regulations with a new specific set period of 
stay, DHS is amending the regulations to allow the Secretary to make a 
determination, considering certain enumerated factors, to set the 
maximum period of stay for PRC I visa holders, up to one year.

II. Discussion of Regulatory Changes

    In order to effect the changes described above, DHS is amending 8 
CFR 214.2(i). Paragraph (i)(1)(ii) is revised to remove the set period 
of stay of 90 days for those noncitizens who present a passport issued 
by the PRC (other than a Hong Kong SAR passport or a Macau SAR 
passport) and replace it with a maximum period of stay as determined by 
the Secretary, not to exceed one year. Additionally, paragraph 
(i)(1)(ii) is amended to provide that the Secretary may determine the 
maximum period of stay when the Secretary determines an adjustment is 
needed, with such maximum period to be no longer than one year. The 
revisions set forth the framework for that determination. Namely, in 
determining the maximum period of stay and whether an adjustment is 
needed, the Secretary will consider factors including, but not limited 
to: the average authorized period of stay and press credential validity 
for U.S. journalists in the PRC; the treatment of U.S. journalists in 
the PRC; any input from the U.S. Department of State; and such other 
factors as may affect the U.S. interest. Such determination will be 
published as a notice in the Federal Register and will remain in effect 
until the Secretary publishes a new determination.
    Consistent with the change regarding the initial period of stay for 
I nonimmigrants, this rule replaces the references to a set period of 
90 days in the introductory text of paragraph (i)(2) regarding 
extension of stay and in paragraph (i)(3) addressing change of status 
with references to the maximum period of stay determined by the 
Secretary pursuant to paragraph (i)(1)(ii). DHS believes that the 
factors considered by the Secretary in setting the maximum period of 
stay for initial grants of I nonimmigrant status are also applicable to 
extensions, and that it is appropriate for the maximum extension period 
to match the maximum initial grant period in place at the time the 
extension request is adjudicated. The period of extensions thus 
reflects the most recent determination made by the Secretary, taking 
into account the most recent information available about reciprocity, 
treatment of U.S. journalists, and other relevant national interests.
    In evaluating its approach to PRC I visa holders for this rule, DHS 
recognized that it should more clearly demonstrate how it is complying 
with international legal obligations regarding certain PRC I visa 
holders. These obligations include, but are not limited to, the United 
Nations Headquarters Agreement (UNHQA) and Organization of American 
States Headquarters Agreement (OASHQA). Section 11 of the UNHQA 
requires that the United States not impede transit to or from the 
United Nations headquarters district for members of certain covered 
classes, including UN-accredited representatives of the press, or of 
radio, film or other information agencies (i.e., I visa holders). 
Section 12 clarifies that such obligations apply irrespective of 
bilateral relations, and Section 13 states that U.S. laws and 
regulations regarding the entry and residence of noncitizens shall not 
be applied in such a manner as to interfere with Section 11 privileges. 
Section 13(a) states that visas required for those covered under 
Section 11 be issued without charge and as promptly as possible. 
Article XV, Section 1 of the OASHQA requires that the United States 
take appropriate steps to facilitate transit to or from the OAS 
Headquarters of OAS-accredited representatives of the press or of 
radio, film, or other information agencies (i.e., I visa holders).
    Thus, at the end of paragraph (i)(2)(ii), DHS adds that requests 
for extensions of stay will be adjudicated consistent with 
international legal obligations, including the UNHQA and OASHQA. DHS 
will continue to coordinate with the U.S. Department of State to ensure 
that USCIS has the discretion to grant extension requests for 
accredited journalists, consistent with international legal 
obligations, free of charge. In the event that assessment and vetting 
efforts identify serious concerns, DHS, prior to taking any action on 
extension applications for PRC I nonimmigrants covered under such 
agreements as the UNHQA and OASHQA, will coordinate with the Department 
of State in a timely manner over appropriate next steps.
    Current paragraph (i)(4) provides for the transition from duration 
of status admission to a fixed admission period for noncitizens with I 
status who had presented a passport issued by the PRC (that is not a 
Hong Kong SAR passport or a Macau SAR passport) at the time of 
admission and who were present in the United States on May 8, 2020, 
when the May 2020 rule took effect. This provision is no longer 
necessary, and this rule replaces that provision in paragraph (i)(4) 
with a provision detailing the applicable maximum period of stay for 
those noncitizens who have pending applications for extension of stay 
or change in status when a change in the maximum period of stay occurs. 
Specifically, revised paragraph (i)(4) sets forth that any change in 
the maximum period of stay announced by a Federal Register notice 
pursuant to paragraph (i)(1)(ii) applies to applications for an 
extension of stay or a change of status, filed under paragraphs (i)(2) 
and (i)(3) respectively, which are pending with USCIS on the effective 
date of the Federal Register notice. In other words, the maximum period 
of stay that is in effect when an application for an extension of stay 
or a change of status is adjudicated is the maximum period of stay that 
will apply to said petition. For example, DHS

[[Page 61962]]

would publish a Federal Register Notice saying that it is changing the 
maximum period of stay from 1 year to 6 months, and the effective date 
would be February 28, 2024. In such a case, when an application for 
extension of stay is filed on February 1, 2024, but that application is 
still pending on February 28, 2024, the maximum period of stay USCIS 
can give is 6 months if that extension of stay is approved on February 
28, 2024 (or later).
    This rule does not contain any substantive changes to the admission 
or duration of status period of stay provisions currently applicable to 
I visa holders from any country other than the PRC.

III. Maximum Period of Stay Determined by the Secretary

    The PRC has taken positive action with respect to allowing U.S. 
media access since late 2021. PRC authorities have issued visas for all 
U.S. reporters for which the Department of State requested such 
documents in November 2021. These issuances will have a substantial 
impact on bolstering critical and independent news coverage in the PRC, 
and arrival of these individuals will represent a 30 percent increase 
in the total number of U.S. journalists in the country. In another sign 
of progress, the PRC has expedited the issuance of re-entry visas for 
U.S. reporters in China so that they may freely depart and return. 
These actions reflect a renewed effort on the part of the PRC to 
improve media reciprocity and working conditions for U.S. reporters in 
China. Although such conditions remain far from fully satisfactory, 
increasing the period of stay for PRC journalists in the United States 
from 90 days to a year through this rule will serve to maintain 
momentum on continuing efforts to improve U.S. media access to the PRC.
    Accordingly, pursuant to 8 CFR 214.2(i)(1)(ii) as amended by this 
final rule, the Secretary of Homeland Security has determined that the 
maximum period of stay for which a noncitizen who presents a passport 
issued by the PRC (other than a Hong Kong SAR passport or a Macau SAR 
passport) may be admitted in or otherwise granted I nonimmigrant status 
is one year, effective on October 13, 2022.

IV. Statutory and Regulatory Review

A. Administrative Procedure Act

    The Administrative Procedure Act (APA) generally requires agencies 
to publish notice of a proposed rulemaking in the Federal Register for 
a period of public comment and to delay the effective date of the final 
rule. However, rules that involve a foreign affairs function of the 
United States are excluded from the rulemaking provisions of the APA. 
See 5 U.S.C. 553(a)(1). For the reasons discussed below, this rule 
involves a foreign affairs function of the United States. DHS, after 
consultation with the Department of State, is adopting this rule to 
respond more flexibly and fluidly to the actions of the PRC Government 
regarding the duration of admission for media representatives from the 
PRC, with the exception of Hong Kong SAR or Macau SAR passport holders.
    In order to obtain an I visa and be admitted to the United States, 
a representative of foreign information media must be a national of a 
country that grants similar privileges to representatives of media from 
the United States. See 8 U.S.C. 1101(a)(15)(I) (providing that I 
nonimmigrant visas may be issued ``upon a basis of reciprocity''). One 
such country is the PRC. Among other things, the PRC has committed to 
begin the process of extending duration of stay for U.S. journalists. 
Such acts demonstrate that the PRC is willing to grant similar 
privileges to U.S. media representatives as those granted to members of 
the Chinese media in the United States. Accordingly, this rule 
encompasses diplomatic relations with the PRC regarding the authorized 
terms and conditions of admission of representatives of radio, film or 
other information media as they perform such functions abroad. The U.S. 
Court of Appeals for the Second Circuit, in City of New York v. 
Permanent Mission of India to United Nations, made clear that 
regulation of the reciprocal treatment to be afforded to 
representatives of foreign nations in the United States ``relates 
directly to, and has clear consequences for, foreign affairs.'' 618 
F.3d 172, 201 (2d Cir. 2010). More recently, the United States District 
Court for the District of Columbia found that ``to be covered by the 
foreign affairs function exception, a rule must clearly and directly 
involve activities or actions characteristic to the conduct of 
international relations.'' E.B. et al. v. U.S. Dep't of State et al., 
Civ. Action No. 19-2856, Mem. Op. at 8 (D.D.C. Feb. 4, 2022), available 
at https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2019cv2856-50. 
This rule clearly and directly involves the conduct of foreign affairs 
and the commitments that the United States and another specific nation-
state, the PRC, have made or may make to each other regarding foreign 
media representatives.
    Any diplomatic negotiations between the United States and the PRC 
as to the reciprocal treatment of foreign media representatives will be 
more effective in ensuring full and fair access for U.S. journalists 
and less disruptive to long-term relations the sooner this final rule 
is in place. See Rajah v. Mukasey, 544 F.3d 427, 438 (2d Cir. 2008) 
(finding that the notice and comment process can be ``slow and 
cumbersome,'' which can negatively affect efforts to secure U.S. 
national interests, thereby justifying application of the foreign 
affairs exemption). Furthermore, notice and comment procedures prior to 
the effective date of this rule would disrupt the Executive Branch's 
foreign policy with respect to the PRC and erode the sovereign 
authority of the United States to pursue the strategy it deems to be 
most appropriate as it engages with foreign nations. See Am. Ass'n of 
Exps. & Imps.-Textile & Apparel Grp. v. United States, 751 F.2d 1239, 
1249 (Fed. Cir. 1985) (noting that the foreign affairs exception covers 
agency actions ``linked intimately with the Government's overall 
political agenda concerning relations with another country'').

B. Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
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, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility.
    Rules involving the foreign affairs function of the United States 
are exempt from the requirements of Executive Orders 12866 and 13563. 
This final rule advances the President's foreign policy goals, as they 
affect a specific bilateral relationship and as the rule has an 
expressed goal of enhancing parity in the relationship of the United 
States with a specific nation-state. The Office of Information and 
Regulatory Affairs has confirmed that this rule is not subject to the 
analytical requirements of Executive Orders 12866 and 13563, due to the 
foreign affairs exception described above. However, DHS has 
nevertheless reviewed this rule to ensure its consistency with the 
regulatory philosophy and principles set forth in those Executive 
Orders.

[[Page 61963]]

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended 
by the Small Business Regulatory Enforcement and Fairness Act of 1996, 
requires an agency to prepare and make available to the public a 
regulatory flexibility analysis that describes the effect of a proposed 
rule on small entities (i.e., small businesses, small organizations, 
and small governmental jurisdictions) when the agency is required to 
publish a general notice of proposed rulemaking for a rule. Since a 
notice of proposed rulemaking is not necessary for this rule, CBP is 
not required to prepare a regulatory flexibility analysis for this 
rule.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 
enacted as Public Law 104-4 on March 22, 1995, requires each Federal 
agency, to the extent permitted by law, to prepare a written assessment 
of the effects of any Federal mandate in a proposed or final agency 
rule that may result in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of 
$100,000,000 or more (adjusted annually for inflation) in any one year. 
See 2 U.S.C. 1532(a). This rule will not result in expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more in any one year. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

E. Paperwork Reduction Act

    The Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3507(d)) 
requires that DHS consider the impact of paperwork and other 
information collection burdens imposed on the public. This rule does 
not impose any new requirements subject to the PRA.

List of Subjects in 8 CFR Part 214

    Administrative practice and procedure, Aliens.

Regulatory Amendments

    For the reasons stated in the preamble, DHS is amending 8 CFR part 
214 as follows:

PART 214--NONIMMIGRANT CLASSES

0
1. The authority citation for part 214 is revised to read as follows:

    Authority:  6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182, 
1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305, 1356, 1357, and 
1372; section 643, Pub. L. 104-208, 110 Stat. 3009-708; Pub. L. 106-
386, 114 Stat. 1477-1480; section 141 of the Compacts of Free 
Association with the Federated States of Micronesia and the Republic 
of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 
1901 note, and 1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 
2; Pub. L. 115-218, 132 Stat. 1547 (48 U.S.C. 1806).


0
2. Amend Sec.  214.2 by:
0
a. Revising paragraph (i)(1)(ii);
0
b. In paragraph (i)(2) introductory text removing the text ``90 days'' 
and adding in its place the text ``the maximum period of stay 
determined by the Secretary pursuant to paragraph (i)(1)(ii) of this 
section'';
0
c. Adding a sentence at the end of paragraph (i)(2)(ii);
0
d. In paragraph (i)(3), removing the text ``90 days'' and adding in its 
place the text ``the maximum period of stay determined by the Secretary 
pursuant to paragraph (i)(1)(ii) of this section''; and
0
e. Revising paragraph (i)(4).
    The addition and revisions read as follows:


Sec.  214.2  Special requirements for admission, extension, and 
maintenance of status.

* * * * *
    (i) * * *
    (1) * * *
    (ii) In the case of an alien who presents a passport issued by the 
People's Republic of China (PRC) (other than a Hong Kong Special 
Administrative Region passport or a Macau Special Administrative Region 
passport), until the activities or assignments consistent with the I 
classification are completed, not to exceed the maximum period of stay 
as determined by the Secretary. The Secretary of Homeland Security may 
determine the maximum period of stay when the Secretary determines an 
adjustment is needed, with such maximum period to be no longer than one 
year. In determining the maximum period of stay and whether an 
adjustment is needed, the Secretary will consider factors including, 
but not limited to, the average authorized period of stay and press 
credential validity for U.S. journalists in the PRC, the treatment of 
U.S. journalists in the PRC, any input from the U.S. Department of 
State, and such other factors as may affect the U.S. interest. Such 
determination will be published in the Federal Register as a notice and 
will remain in effect until the Secretary of Homeland Security 
publishes a new determination under this paragraph.
* * * * *
    (2) * * *
    (ii) * * * Requests for extensions of stay will be adjudicated 
consistent with international legal obligations, including the United 
Nations Headquarters Agreement and Organization of American States 
Headquarters Agreement.
* * * * *
    (4) Applicable maximum period of stay. Any change in the maximum 
period of stay announced by a Federal Register notice pursuant to 
paragraph (i)(1)(ii) of this section applies to applications for an 
extension of stay or a change of status, filed under paragraphs (i)(2) 
and (3) of this section respectively, that are pending with USCIS on 
the effective date of the Federal Register notice.
* * * * *

Alejandro N. Mayorkas,
Secretary of Homeland Security.
[FR Doc. 2022-21898 Filed 10-12-22; 8:45 am]
BILLING CODE 9111-14-P