Expansion of Provisional Unlawful Presence Waivers of Inadmissibility, 43338-43354 [2015-17794]
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43338
Proposed Rules
Federal Register
Vol. 80, No. 140
Wednesday, July 22, 2015
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
DEPARTMENT OF HOMELAND
SECURITY
8 CFR Parts 103 and 212
[CIS No. 2557–14; DHS Docket No. USCIS–
2012–0003]
RIN 1615–AC03
Expansion of Provisional Unlawful
Presence Waivers of Inadmissibility
U.S. Citizenship and
Immigration Services, Department of
Homeland Security.
ACTION: Proposed rule.
AGENCY:
The Department of Homeland
Security (DHS) proposes to expand
eligibility for provisional waivers of
certain grounds of inadmissibility based
on the accrual of unlawful presence to
all aliens who are statutorily eligible for
a waiver of such grounds, are seeking
such a waiver in connection with an
immigrant visa application, and meet
other conditions. The provisional
waiver process currently allows certain
aliens who are present in the United
States to request from U.S. Citizenship
and Immigration Services (USCIS) a
provisional waiver of certain unlawful
presence grounds of inadmissibility
prior to departing from the United
States for consular processing of their
immigrant visas—rather than applying
for a waiver abroad after the immigrant
visa interview using the Form I–601,
Waiver of Grounds of Inadmissibility
(hereinafter ‘‘Form I–601 waiver
process’’). DHS proposes to expand its
current provisional waiver process in
two principal ways. First, DHS would
eliminate current limitations on the
provisional waiver process that restrict
eligibility to certain immediate relatives
of U.S. citizens. Under this proposed
rule, the provisional waiver process
would be made available to all aliens
who are statutorily eligible for waivers
of inadmissibility based on unlawful
presence and meet certain other
conditions. Second, in relation to the
statutory requirement that the waiver
applicant demonstrate that denial of the
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SUMMARY:
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waiver would result in ‘‘extreme
hardship’’ to certain family members,
DHS proposes to expand the provisional
waiver process by eliminating the
current restriction that limits extreme
hardship determinations only to aliens
who can establish extreme hardship to
U.S. citizen spouses or parents. Under
this proposed rule, an applicant for a
provisional waiver would be permitted
to establish the eligibility requirement
of showing extreme hardship to any
qualifying relative (namely, U.S. citizen
or lawful permanent resident spouses or
parents). DHS is proposing to expand
the provisional waiver process in the
interests of encouraging eligible aliens
to complete the visa process abroad,
promoting family unity, and improving
administrative efficiency.
DATES: Submit written comments on or
before September 21, 2015. Comments
on the information collection revisions
in this rule, as described in the
Paperwork Reduction Act section, will
also be accepted until September 21,
2015.
ADDRESSES: You may submit comments,
identified by DHS Docket No. USCIS–
2012–0003, by one of the following
methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow this site’s
instructions for submitting comments.
• Email: You may email comments
directly to USCIS at uscisfrcomment@
dhs.gov. Include DHS Docket No.
USCIS–2012–0003 in the subject line of
the message.
• Mail: Laura Dawkins, Chief,
Regulatory Coordination Division,
Office of Policy and Strategy, U.S.
Citizenship and Immigration Services,
Department of Homeland Security, 20
Massachusetts Avenue NW.,
Washington, DC 20529–2020. To ensure
proper handling, please reference DHS
Docket No. USCIS–2012–0003 on your
correspondence. This mailing address
may be used for paper, disk, or CD–
ROM submissions.
• Hand Delivery/Courier: Laura
Dawkins, Chief, Regulatory
Coordination Division, Office of Policy
and Strategy, U.S. Citizenship and
Immigration Services, Department of
Homeland Security, 20 Massachusetts
Avenue NW., Washington, DC 20529–
2020. Contact Telephone Number is
(202) 272–8377.
FOR FURTHER INFORMATION CONTACT:
Roselyn Brown-Frei, Office of Policy
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and Strategy, Residence and
Naturalization Division, U.S.
Citizenship and Immigration Services,
Department of Homeland Security, 20
Massachusetts Avenue NW.,
Washington, DC 20529–2099,
Telephone (202) 272–1470 (this is not a
toll free number).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Public Participation
III. Background
A. Legal Authority
B. Immigrant Visa Categories
1. Immediate Relatives, Family-Sponsored
Immigrants, Employment-Based
Immigrants, and Certain Special
Immigrants
2. Diversity Visa Program
C. Grounds of Inadmissibility
D. Unlawful Presence
E. Form I–601 Waiver Process
1. Form I–601 Waiver Process for
Immigrant Visa Applicants Abroad
2. Difficulties With the Form I–601 Waiver
Process
F. Provisional Waiver Process
1. Creation of Provisional Waiver
2. Impact of Provisional Waiver Process
IV. Proposed Changes
A. Immediate Relative, Family-Sponsored,
Employment-Based, and Certain Special
Immigrants
B. Diversity Immigrants
C. Qualifying Relatives
D. Aliens With Scheduled Immigrant Visa
Interviews
E. Miscellaneous Changes
F. Benefits of the Proposed Changes
V. Public Input
VI. Statutory and Regulatory Requirements
A. Unfunded Mandates Reform Act of 1995
B. Small Business Regulatory Enforcement
Fairness Act of 1996
C. Executive Orders 12866 and 13563
1. Summary
2. Background
3. Purpose of Rule
4. Current Provisional Unlawful Presence
Waiver Program
5. Population Affected by This Rule
6. Costs and Benefits
D. Regulatory Flexibility Act
E. Executive Order 13132
F. Executive Order 12988 Civil Justice
Reform
G. Paperwork Reduction Act
II. Public Participation
DHS invites all interested parties to
submit written data, views, or
arguments on all aspects of this
proposed rule. DHS also invites
comments about how the proposed rule
might affect the economy, environment,
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or federalism. The most helpful
comments will:
(1) Refer to a specific portion of this
proposed rule;
(2) Explain the reason for any
recommended change; and
(3) Include data, information, or
references to authority that support the
recommended change.
Instructions: All submissions must
include the agency name and DHS
Docket No. USCIS–2012–0003 assigned
to this rulemaking. Regardless of the
method you used to submit comments
or material, all submissions will be
posted, without change, to the Federal
eRulemaking Portal at https://
www.regulations.gov, and will include
any personal information you provide.
Your entire submission will be available
for the public to view. Therefore, you
may wish to consider limiting the
amount of personal information that you
provide. DHS may withhold information
provided in comments from public
viewing that it determines may impact
the privacy of an individual or is
deemed to be inappropriate or offensive.
For additional information, please read
the Privacy Act notice that is available
on the link in the footer of https://
www.regulations.gov.
Docket: For access to the docket to
read background documents or
comments received, go to https://
www.regulations.gov and enter this
proposed rule’s DHS Docket No. USCIS–
2012–0003.
III. Background
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A. Legal Authority
Section 102 of the Homeland Security
Act of 2002 (Public Law 107–296, 116
Stat. 2135), 6 U.S.C. 112, and section
103 of the Immigration and Nationality
Act (INA), 8 U.S.C. 1103, charge the
Secretary of Homeland Security
(Secretary) with the administration and
enforcement of the immigration and
naturalization laws of the United States.
The Secretary proposes the changes in
this rule under the broad authority to
administer the authorities provided
under the Homeland Security Act of
2002, the immigration and nationality
laws, and other delegated authorities.
The Secretary’s discretionary authority
to waive the unlawful presence grounds
of inadmissibility is provided in INA
section 212(a)(9)(B)(v), 8 U.S.C.
1182(a)(9)(B)(v). See also Homeland
Security Act of 2002, sec. 451(b), 6
U.S.C. 271(b) (transferring to the
Director of USCIS the immigration
benefits adjudication functions of the
Commissioner of the former
Immigration and Naturalization
Service).
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B. Immigrant Visa Categories
U.S. immigration laws provide
avenues for U.S. citizens, LPRs, and
U.S. employers to bring their families or
employees permanently to the United
States. Certain other categories of aliens
are eligible for immigrant visas through
special processes. See, e.g., INA section
201(b), 8 U.S.C. 1151(b) (describing
aliens who are not subject to numerical
limitations on immigration levels); INA
section 203(a)–(d); 8 U.S.C. 1153(a)–(d)
(providing for the allocation of
immigrant visas to family-sponsored
immigrants, employment-based
immigrants, certain special immigrants,
and diversity immigrants, as well as the
derivative spouses and children of such
immigrants).
1. Immediate Relatives, FamilySponsored Immigrants, EmploymentBased Immigrants, and Certain Special
Immigrants
Generally, if a U.S. citizen or LPR
seeks to sponsor a relative for lawful
permanent residence in the United
States, the U.S. citizen or LPR must first
file an immigrant visa petition for the
relative with USCIS.1 See INA sections
201(b)(2)(A)(i), 203(a), 204; 8 U.S.C.
1151(b)(2)(A)(i), 1153(a), 1154; 8 CFR
part 204. The same is generally true
with respect to a U.S. employer that
wishes to petition on behalf of a
noncitizen worker. See INA sections
203(b), 204; 8 U.S.C. 1153(b), 1154; 8
CFR part 204. Certain other categories of
immigrants, such as ‘‘special
immigrants,’’ are eligible for permanent
residence through special processes. See
INA sections 101(a)(27), 203(b)(4),
204(a)(1)(I); 8 U.S.C. 1101(a)(27),
1153(b)(4), 1154(a)(1)(I); 8 CFR part 204;
22 CFR 42.32(d).
The purpose of the immigrant visa
petition is to classify the alien as an
intending immigrant who is either an
immediate relative of a U.S. citizen (i.e.,
the spouse, parent, or unmarried child
of a U.S. citizen) or an alien described
under the family-sponsored preference,
employment-based preference, or
special immigrant categories. Except
with respect to immediate relatives of
U.S. citizens, immigrant visa petitions
may also serve to classify derivatives
(i.e., spouses and unmarried children) of
1 Certain immediate relatives (e.g., widows or
widowers of U.S. citizens and their children) and
special immigrants can self-petition for
classification as an immediate relative of a U.S.
citizen by filing a Form I–360, Petition for
Amerasian, Widow(er) or Special Immigrant.
Similarly, certain employment-based categories
(e.g., aliens with extraordinary ability) allow an
alien to self-petition for classification as an
employment-based immigrant. See INA sections
201 and 203(b)(1)(A) & (2)(B); 8 U.S.C. 1151,
1153(b)(1)(A) & (2)(B); 8 CFR 204.5(h) and (k)(4)(ii).
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principal beneficiaries as immigrants.
See INA 203(d); 8 U.S.C. 1153(d). USCIS
determines, among other things,
whether an alien has the necessary
familial relationship to the U.S. citizen
or the LPR, has the necessary
professional qualifications or skills and
expertise for the position offered by the
U.S. employer, or meets the
requirements for the specific special
immigrant category, before approving an
immigrant visa petition. Approval of an
immigrant visa petition does not give
the beneficiary any lawful immigration
status in the United States. If the
beneficiary is without lawful status
when the immigrant visa petition is
filed, the beneficiary remains without
such status even after it is approved.
Once approved, the relative, employee,
or special immigrant who is the
beneficiary of the approved immigrant
visa petition may seek to adjust status
to lawful permanent residence in the
United States or obtain an immigrant
visa abroad at a U.S. embassy or
consulate, if eligible. See INA section
204, 8 U.S.C. 1154; see also 8 CFR part
204.
Many aliens present in the United
States who are the beneficiaries of
approved immigrant visa petitions are
eligible to adjust to LPR status while
remaining in the United States. See, e.g.,
INA section 245, 8 U.S.C. 1255; 8 CFR
part 245. Other aliens, however, are
ineligible to adjust status in the United
States. For example, aliens who entered
the United States without inspection
and admission or parole, or who are not
in a lawful immigration status, are
generally ineligible to adjust status in
the United States. See INA section
245(a), (c); 8 U.S.C. 1255(a), (c); see also
8 CFR 245.1(b)–(c) (describing aliens
who are ineligible to apply for
adjustment of status or who are
restricted from applying unless they
meet certain conditions). An alien who
is unable to adjust status in the United
States must obtain an immigrant visa at
a U.S. Embassy or consulate abroad
before he or she can be lawfully
admitted to the United States as an
immigrant. An alien who is eligible to
apply for adjustment of status to lawful
permanent residence in the United
States can also choose to apply for an
immigrant visa and obtain that visa at a
U.S. embassy or consulate abroad
through consular processing.
If an alien seeks an immigrant visa
abroad through consular processing,
USCIS forwards the approved
immigrant visa petition to the DOS
National Visa Center (NVC), which
completes initial processing of petitionbased immigrant visa applications. The
NVC notifies the alien when he or she
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can start the immigrant visa process and
will request, among other things, that
the alien pay the immigrant visa
processing fee and submit the necessary
documents. After receiving the fee and
necessary documents, the NVC
schedules the alien for an immigrant
visa interview with a DOS consular
officer at a U.S. Embassy or consulate
abroad. During the interview, the DOS
consular officer determines whether the
alien is admissible to the United States
and eligible for an immigrant visa.
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2. Diversity Visa Program
An alien may also immigrate to the
United States through the Diversity Visa
program administered by DOS. See INA
section 203(c), 8 U.S.C. 1153(c); 22 CFR
42.33. Under the Diversity Visa
program, up to 55,000 immigrant visas
and adjustment of status applications
can be approved annually for aliens
who are from countries with low
immigration rates to the United States.2
See INA section 201(e), 8 U.S.C. 1151(e).
An alien seeking to immigrate as a
diversity immigrant submits an entry
with the Diversity Visa program during
the designated registration period. After
the registration period closes, DOS
randomly selects aliens from the pool of
registrants to continue the Diversity
Visa process. Being selected to
participate in the Diversity Visa
program does not afford the selectee any
lawful immigration status.
If selected and eligible, an alien may
be authorized to seek LPR status either
through adjustment of status in the
United States or through consular
processing abroad with DOS. If the alien
chooses to use the consular process, he
or she must submit an immigrant visa
application (Form DS–260, Immigrant
Visa Electronic Application) to the DOS
Kentucky Consular Center (KCC), which
completes initial processing of the
immigrant visa applications from
Diversity Visa program selectees and
derivatives. If the immigrant visa
application is complete and an
immigrant visa is available, the KCC
schedules the alien for an immigrant
visa interview abroad. The DOS
consular officer determines whether the
alien is admissible to the United States
and eligible for the immigrant visa. A
program selectee or derivative (such as
the spouse or minor child of a program
2 INA section 203(c) authorizes up to 55,000
immigrant visas each fiscal year for aliens from
countries with low admissions during the previous
five years. However, this number is reduced by up
to 5,000 for applicants seeking adjustment of status
under the Nicaraguan Adjustment and Central
American Relief Act (NACARA), Pub. L. 105–100,
title II, secs. 201–204, 111 Stat. 2160, 2193–201
(Nov. 19, 1997), amended by Pub. L. 105–139, 111
Stat. 2644 (Dec. 2, 1997) (8 U.S.C. 1255 note).
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selectee), however, can obtain an
immigrant visa only in the fiscal year for
which he or she was selected, provided
the numerical limits have not been
reached. See 22 CFR 42.33(c)–(f).
Diversity Visa program processing is
different from the petition-based
immigrant visa process, as Diversity
Visa program selectees and their
derivatives are not beneficiaries of
approved immigrant visa petitions. DOS
completes initial processing of program
selectees and derivatives at the KCC
instead of at the NVC. The Diversity
Visa program pre-processing steps aim
to ensure that DOS can issue as many
visas to program selectees and
derivatives as possible during the
particular fiscal year. For example,
Diversity Visa program selectees and
their derivatives submit their immigrant
visa applications to the KCC without the
additional documents required for
immigrant visa processing. Program
selectees and derivatives submit the
additional required documents to the
DOS consular officer as part of the
immigrant visa interview and process.
In addition, unlike immediate-relative,
family-sponsored, employment-based,
and special-immigrant visa applicants,
Diversity Visa program selectees and
their derivatives pay their immigrant
visa processing fees at their immigrant
visa interviews rather than before DOS
schedules the interviews.
C. Grounds of Inadmissibility
U.S. immigration laws specify acts,
conditions, and conduct that bar aliens
from being admitted to the United States
or from obtaining visas, including
immigrant visas. See INA section 212(a),
8 U.S.C. 1182(a) (listing the grounds of
inadmissibility). The Secretary has the
discretion to waive certain
inadmissibility grounds if an alien
applies for a waiver and meets the
relevant statutory and regulatory
requirements. See, e.g., INA section
212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v);
8 CFR 212.7. If the Secretary grants a
waiver of inadmissibility, the waived
inadmissibility ground no longer bars
the alien’s admission, readmission, or
immigrant visa eligibility. See 8 CFR
212.7(a)(4).
D. Unlawful Presence
The inadmissibility ground based on
the accrual of unlawful presence in the
United States is found at INA section
212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i).
Under that provision, an alien who was
unlawfully present in the United States
for more than 180 days but less than one
year and who then departs voluntarily
from the United States before removal
proceedings begin is inadmissible to the
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United States for 3 years from the date
of departure. See INA section
212(a)(9)(B)(i)(I), 8 U.S.C.
1182(a)(9)(B)(i)(I). An alien who was
unlawfully present in the United States
for one year or more and who then
departs the United States before, during,
or after removal proceedings is
inadmissible for 10 years from the date
of departure. See INA section
212(a)(9)(B)(i)(II), 8 U.S.C.
1182(a)(9)(B)(i)(II).
These 3- and 10-year unlawful
presence bars do not take effect unless
and until the alien departs from the
United States.3 See, e.g., Matter of
Rodarte-Roman, 23 I. & N. Dec. 905 (BIA
2006); 22 CFR 40.92(a)–(b). Once the 3or 10-year unlawful presence bar is
triggered, the alien must apply for and
be granted a waiver of inadmissibility
before he or she can be issued an
immigrant visa and be admitted to the
United States for permanent residence.
The Secretary has the discretion to
waive the 3- and 10-year unlawful
presence bars for an alien seeking
admission to the United States as an
immigrant, if he or she demonstrates
that the refusal of his or her admission
to the United States would cause
extreme hardship to the alien’s U.S.
citizen or LPR spouse or parent. See
INA section 212(a)(9)(B)(v), 8 U.S.C.
1182(a)(9)(B)(v).
Because approval of the waiver is
discretionary, the alien also must
establish that he or she merits a
favorable exercise of discretion. See INA
section 212(a)(9)(B)(v), 8 U.S.C.
1182(a)(9)(B)(v). Accordingly, USCIS
may deny a waiver application as a
matter of discretion, even if the
applicant meets all of the other
regulatory requirements.
E. Form I–601 Waiver Process
1. Form I–601 Waiver Process for
Immigrant Visa Applicants Abroad
The 3- and 10-year unlawful presence
bars to admissibility under INA section
212(a)(9)(B) do not apply unless and
until an alien who accrued sufficient
unlawful presence departs from the
United States. Many aliens who would
trigger these bars upon departure from
the United States are ineligible to adjust
3 By statute, certain aliens do not accrue unlawful
presence for purposes of INA section 212(a)(9)(B)(i),
8 U.S.C. 1182(a)(9)(B)(i). For example, aliens under
the age of 18 do not accrue unlawful presence. See
INA section 212(a)(9)(B)(iii)(I), 8 U.S.C.
1182(a)(9)(B)(iii)(I). Similarly, aliens with pending
asylum claims generally do not accrue unlawful
presence while their asylum applications are
pending. See INA section 212(a)(9)(B)(iii)(II), 8
U.S.C. 1182(a)(9)(B)(iii)(II). See INA sections
212(a)(9)(B)(iii)(III), (IV), and (V), 8 U.S.C.
1182(a)(9)(B)(iii)(III), (IV), and (V) for additional
exceptions to the accrual of unlawful presence.
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these applicants must gather the
necessary information and supporting
documents, file their Form I–601 waiver
applications with USCIS, and typically
wait abroad for at least several months
for a decision on their applications
based on the average adjudication time
for Form I–601 waiver applications.6
During this period, the applicant must
endure separation from U.S. citizen and
LPR family members in the United
States. Such separation may cause some
U.S. citizens, LPRs, and their families to
experience emotional and financial
hardships while the alien relative waits
abroad for a decision on his or her
application. If the waiver is approved,
and the alien is otherwise eligible for
the immigrant visa, the alien must then
return to DOS to pick up the immigrant
visa. Due to these difficulties and
uncertainties, many alien relatives of
U.S. citizens and LPRs are reluctant to
leave the United States to obtain an
immigrant visa.
Inefficiencies in the Form I–601
waiver process also create costs for the
Federal Government. If a DOS officer at
a U.S. Embassy or consulate determines
that the applicant is inadmissible based
on a ground that can be waived, the
DOS officer informs the applicant about
the option to file a waiver application
with USCIS. After the interview, DOS
puts the immigrant visa process on hold
while waiting for the applicant to
submit the Form I–601 waiver
application and for USCIS’s decision on
the waiver. If a waiver is approved, DOS
must reschedule the applicant for
additional visa processing at a U.S.
Embassy or consulate, which uses
valuable DOS consular officer resources
that could be used for processing other
visa applications.
2. Difficulties With the Form I–601
Waiver Process
Immigrant visa applicants typically
encounter difficulties when seeking
waivers of the 3- and 10-year unlawful
presence bars through the Form I–601
waiver process abroad. After attending
the immigrant visa interview with DOS,
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status in the United States and must
travel abroad to obtain an immigrant
visa from DOS. DOS cannot issue an
immigrant visa to an inadmissible alien
unless he or she applies for, and USCIS
approves, a waiver of inadmissibility, if
a waiver is authorized under the INA for
the specific ground of inadmissibility.
See 22 CFR 40.6, 40.9, 40.92(c).
Under the Form I–601 waiver process,
an immigrant visa applicant may file an
Application for Waiver of Grounds of
Inadmissibility, Form I–601, with
USCIS after the DOS consular officer
makes the inadmissibility determination
during the immigrant visa interview
abroad.4 Once the alien files the Form
I–601 waiver application, he or she
must remain abroad while USCIS
adjudicates the waiver application.
Currently, USCIS adjudicates these
Form I–601 waiver applications at the
Nebraska Service Center (NSC) in the
United States.5
Upon approving the Form I–601
waiver application, USCIS notifies DOS
so that DOS may issue the immigrant
visa if the alien is otherwise eligible. If
USCIS denies the Form I–601 waiver
application, the alien remains
inadmissible and, therefore, ineligible
for an immigrant visa and is generally
unable to lawfully return to the United
States. If the alien is inadmissible based
on the 3- or 10-year unlawful presence
bar, he or she must remain outside of
the United States for the relevant 3- or
10-year period before he or she can
reapply for an immigrant visa without
having to obtain a waiver. An alien may
appeal the denial of a Form I–601
waiver application with the USCIS
Administrative Appeals Office (AAO).
Alternatively, the alien can file another
Form I–601 waiver application.
F. Provisional Waiver Process
4 To be eligible for the waiver, the alien must
meet all requirements described in INA section
212(a)(9)(B)(v), including the requirement to
demonstrate that refusing the alien’s admission to
the United States would result in extreme hardship
to the alien’s U.S. citizen or LPR spouse or parent.
This same requirement applies to the Form I–601A
provisional waiver process. The fundamental
distinction between the Form I–601 and Form I–
601A processes is the manner in which the
applicant applies for the waiver.
5 The alien files the waiver application from
abroad by sending it to a USCIS ‘‘lockbox’’ facility
in the United States. In limited circumstances, as
outlined in the Form I–601 instructions, an alien
may file a waiver application at a USCIS
international office.
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1. Creation of the Provisional Waiver
Process
In 2013, DHS sought to partially
address the difficulties and
inefficiencies of the Form I–601 waiver
process through rulemaking. DHS
published a rule establishing a
provisional waiver process, which
streamlines certain aspects of the Form
I–601 waiver process, facilitates
immigrant visa issuance, and promotes
family unity. See 78 FR 536 (Jan. 3,
2013); see also 77 FR 19902 (Apr. 2,
2012) (proposed rule). The goal of the
provisional waiver process is to reduce
6 The average adjudication time of Form I–601
waivers is currently five months based on
information gathered from USCIS’s Nebraska
Service Center on March 3, 2015. Updated
processing times for Form I–601 are also posted on
the USCIS Web site at: https://egov.uscis.gov/cris/
processTimesDisplayInit.do.
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the adverse impact of the Form I–601
waiver process on families in the United
States.7 In particular, the current
provisional waiver process permits
certain immediate relatives of U.S.
citizens who are physically present in
the United States to apply for a
provisional waiver of the 3- and 10-year
unlawful presence bars before departing
for their immigrant visa interviews
abroad. The provisional waiver is
available to only those aliens who will
be inadmissible on account of the 3-year
or 10-year unlawful presence bar at the
time of the immigrant visa interview.
Aliens who, at the time of the immigrant
visa interview, may be inadmissible
based on another ground of
inadmissibility or multiple grounds of
inadmissibility, are not eligible for
provisional waivers. USCIS’s approval
of a provisional waiver allows DOS to
issue the immigrant visa without the
further delay associated with the Form
I–601 waiver process, if the applicant is
otherwise eligible. See 8 CFR 212.7(e).
DHS initially limited eligibility for
provisional waivers to immediate
relatives of U.S. citizens (spouses,
parents and children (under the age of
21) of U.S. citizens). The intention was
to prioritize the family reunification of
immediate relatives of U.S. citizens over
other categories of aliens. Limiting the
program also allowed DHS to assess the
initial effectiveness of a provisional
waiver process. Accordingly, DHS
restricted eligibility for provisional
waivers to immediate relatives of U.S.
citizens who could demonstrate that
their U.S. citizen spouses or parents
would suffer extreme hardship if the
immediate relatives were refused
admission to the United States. See 78
FR at 542. Although other aliens are
eligible for waivers of the 3- and 10-year
unlawful presence bars under the Form
I–601 waiver process, the provisional
waiver process was not made available
to them. DHS limited eligibility to
immediate relatives able to demonstrate
extreme hardship to a U.S. citizen
spouse or parent. See 78 FR at 543
(describing rationale for eligibility
limitations). Immediate relatives who
can show extreme hardship to only their
LPR spouses or parents, and other
categories of immigrant visa applicants,
are ineligible to obtain a provisional
waiver under the current regulation.8
7 Promoting family unity has always played a
significant role in the development of U.S.
immigration laws. See, e.g., Holder v. Martinez
Gutierrez, 132 S. Ct. 2011, 2019 (2012); INS v.
Errico, 385 U.S. 214, 219–20 (1966).
8 In the 2012 proposed rule, DHS explained that
the provisional waiver process would not be
extended to non-immediate relatives of U.S.
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2. Impact of Provisional Waiver Process
In the 2013 final rule, DHS noted that
it would consider expanding
provisional waiver eligibility after DHS
and DOS assessed the effectiveness of
the provisional waiver process and the
operational impact it may have on
existing agency processes and resources.
See 78 FR at 542–543 (citing Beach
Commc’ns v. FCC, 508 U.S. 307, 316
(1993) (observing that policymakers
‘‘must be allowed leeway to approach a
perceived problem incrementally’’)).
Preliminary review of the provisional
waiver process has shown that it can
reduce the time that relatives are
separated from their U.S. citizen
families, reduce the processing costs
incurred by DOS and DHS, limit the
number of exchanges between DOS and
DHS, and reduce the number of
immigrant visa cases DOS has to either
reschedule or place on hold under the
Form I–601 waiver process. DHS
initially anticipated receiving as many
as 62,348 provisional waiver
applications per year and allocated
resources accordingly. USCIS, however,
received only about 39,000 applications
in fiscal year 2014. As a result, both
DHS and DOS have determined that
there would not be a significant
operational impact if DHS expanded
eligibility for provisional waivers to
include other statutorily eligible aliens
who are beneficiaries of approved
immigrant visa petitions and can
establish extreme hardship to their U.S.
citizen or LPR spouses or parents.
IV. Proposed Changes
DHS proposes to expand the class of
aliens who may be eligible for a
provisional waiver beyond immediate
relatives of U.S. citizens to aliens in all
statutorily eligible immigrant visa
categories. Such aliens include familysponsored immigrants, employmentbased immigrants, certain special
immigrants, and Diversity Visa program
selectees, together with their derivative
spouses and children. See proposed 8
CFR 212.7(e)(3)(iv). DHS also proposes
to expand who may be considered a
qualifying relative for purposes of the
extreme hardship determination to
include LPR spouses and parents.
This proposed expansion will permit
any alien seeking an immigrant visa
who would be eligible to apply for a
Form I–601 waiver of unlawful presence
abroad to now apply for a provisional
waiver before leaving the United States
citizens or immediate relatives who can only show
extreme hardship to their LPR spouses or parents.
See 77 FR 19907. Commenters to the proposed
provisional waiver rule from April 2, 2012 objected
to both limitations. See 78 FR at 542–543.
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to attend his or her immigrant visa
interview abroad. Aliens who will
become eligible for a provisional waiver,
including derivative spouses and
children, would still need to meet all
other requirements of proposed 8 CFR
212.7(e) to obtain the waiver.9 Under
this proposed rule, any alien who meets
the eligibility requirements for a
provisional waiver and who is pursuing
consular processing abroad can apply
for the waiver irrespective of his or her
current immigration status in the United
States.10
DHS does not propose to change any
eligibility requirements for a provisional
waiver other than those described in
this rulemaking.
A. Immediate Relatives, FamilySponsored Immigrants, EmploymentBased Immigrants, and Certain Special
Immigrants
Under the proposed rule, an alien
would be eligible for a provisional
waiver if, among other criteria, he or she
has an immigrant visa case pending
with DOS based on an approved
immigrant visa petition and has paid the
immigrant visa processing fee. Aliens
with an approved immigrant visa
petition include: 11
• A beneficiary of an approved
Petition for Alien Relative, Form I–130,
or Petition for Amerasian, Widow(er),
and Special Immigrant, Form I–360
(classifying the alien as immigrant visa
applicant under INA section 201(b)(2), 8
U.S.C. 1151(b)(2), or INA section 203(a)
or (b), 8 U.S.C. 1153(a) or (b));
• A beneficiary of an approved
Immigrant Petition for Alien Worker,
Form I–140 (classifying the alien as
immigrant visa applicant under INA
section 203(b), 8 U.S.C. 1153(b)); and
• A spouse or child, as defined in
subparagraph (A), (B), (C), (D) or (E) of
INA section 101(b)(1), 8 U.S.C.
9 Although derivative spouses and children apply
for an immigrant visa based on their relationship to
a principal beneficiary, the admissibility
determination is made individually for each
immigrant visa applicant. See INA 212, 221(g), 291,
8 U.S.C. 1182, 1201(g), 1361; 22 CFR 40.6, 40.92.
If the derivative is inadmissible, he or she must
apply for a provisional waiver and meet the
eligibility requirements independent of the
principal.
10 As stated in the 2013 rule, an alien’s current
immigration status is not relevant for purposes of
seeking a provisional waiver of an unlawful
presence ground of inadmissibility. See 78 FR at
547. No alien, including one who is in Temporary
Protected Status, has received deferred action, or is
currently in a lawful nonimmigrant status, is barred
from seeking a provisional waiver as long as the
alien meets the eligibility requirements stated in the
rule.
11 A Refugee/Asylee Relative Petition, Form I–
730, is not an immigrant visa petition and is
therefore not a basis for filing a provisional waiver
application.
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Frm 00005
Fmt 4702
Sfmt 4702
1101(b)(1), if accompanying or
following-to-join an alien spouse or
parent seeking to immigrate under INA
section 203(a) or (b), 8 U.S.C. 1153(a) or
(b), or under INA section 203(d), 8
U.S.C. 1153(d).
B. Diversity Immigrants
Under the proposed rule, an alien
would also be eligible for a provisional
waiver based on selection by DOS to
participate in the Diversity Visa
program under INA section 203(c), 8
U.S.C. 1153(c) for the fiscal year for
which the alien registered. Expanding
the provisional waiver process to
Diversity Visa program selectees and
their derivatives requires USCIS to
develop procedures that apply only to
these applicants because such
applicants do not have approved
immigrant visa petitions. DOS’s
selection of an alien for the Diversity
Visa program is for these purposes being
considered the functional equivalent of
having an approved immigrant visa
petition. See proposed 8 CFR
212.7(e)(3)(iv). Additionally, Diversity
Visa program processing must be
completed by the end of the fiscal year
for the program year for which the alien
registered. See INA section
204(a)(1)(I)(ii)(II), 8 U.S.C.
1154(a)(1)(I)(ii)(II). To meet the time
constraints of the Diversity Visa
program, USCIS would consider an
immigrant visa case pending as soon as
DOS selects the alien for the program.
See proposed 8 CFR 212.7(e)(3)(iv) and
8 CFR 212.7(e)(5)(ii)(F). Because
Diversity Visa program selectees and
derivatives do not have to pay the
immigrant visa processing fee until the
immigrant visa interview, DHS proposes
that such aliens would not have to
provide proof of payment of the
immigrant visa processing fee when
they apply for a provisional waiver. See
proposed 8 CFR 212.7(e)(3)(iv) and 8
CFR 212.7(e)(5)(ii)(F).
C. Qualifying Relatives
DHS proposes to expand eligibility for
provisional waivers to include aliens
who can establish extreme hardship to
an LPR spouse or parent. This proposed
expansion would allow immigrant visa
applicants, including diversity visa
applicants, to seek provisional waivers
based on extreme hardship to all
categories of qualifying relatives
authorized by statute. See proposed 8
CFR 212.7(e)(3)(vi) and 8 CFR
212.7(e)(8). Although the benefits of this
rule largely would accrue to the
expanded group of aliens newly eligible
to apply for provisional waivers under
the rule, certain immediate relatives of
U.S. citizens will also experience
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benefits from this rule. For example, an
alien who is the beneficiary of an
immediate relative petition filed by his
or her U.S. citizen son or daughter—
who is not a qualifying relative for
purposes of the waiver—could seek a
provisional waiver based on extreme
hardship that would be suffered by the
alien’s LPR spouse.
D. Aliens With Scheduled Immigrant
Visa Interviews
DHS proposes to limit eligibility for
provisional waivers under this
rulemaking to aliens, other than
immediate relatives of U.S. citizens,
who have not had their immigrant visa
interviews scheduled before the
effective date of a final rule. DHS also
proposes that immediate relatives of
U.S. citizens will be eligible to file for
provisional waivers if they have not had
their immigrant visa interviews
scheduled before January 3, 2013, even
if they may not have been previously
eligible to apply for provisional waivers
under the current rule.12 For these
purposes, DHS will use the date that
DOS initially acted to schedule the
immigrant visa interview, not the date
that the alien is scheduled to appear for
the immigrant visa interview.
As reflected in the 2013 rulemaking,
these restrictions are necessary to make
the process operationally manageable
without creating delays in the
processing of other petitions or
applications filed with USCIS or in the
DOS immigrant visa process. If the
proposed rule included aliens who were
scheduled for an interview prior to the
effective date of a final rule, the
projected volume of cases could
increase and create backlogs not only in
the provisional waiver process, but also
in adjudication of other USCIS benefits.
The increased volume could also
adversely impact DOS and its immigrant
visa process.13
E. Miscellaneous Changes
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This rule also proposes to remove
from the affected regulations all
unnecessary procedural instructions
regarding office names and locations,
position titles and responsibilities, and
12 Aliens who are immediate relatives of U.S.
citizens but who can only demonstrate that the
denial of admission would cause extreme hardship
to an LPR spouse or parent (rather than a U.S.
citizen spouse or parent) are currently ineligible for
provisional waivers.
13 Focusing on U.S. citizens and their immediate
relative family members in the expansion of this
discretionary procedure also is consistent with
permissible distinctions that may be drawn between
U.S. citizens and aliens and between classes of
aliens in immigration laws and policies. See, e.g.,
Fiallo v. Bell, 430 U.S. 787, 792 (1977); Mathews v.
Diaz, 426 U.S. 67, 81 (1976).
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15:08 Jul 21, 2015
Jkt 235001
form numbers. Prescribing an office
name, such as ‘‘Application Support
Center,’’ is unnecessary and restricts
USCIS’ ability to vary work locations as
necessary to address its workload needs,
better utilize its resources, and serve its
customers. See, e.g., proposed 8 CFR
212.7(e)(3)(ii) (replacing the term
‘‘USCIS ASC’’ with ‘‘location in the
United States designated by USCIS’’).
Likewise, requiring a specific form to be
filed for a certain benefit in the Code of
Federal Regulations (CFR) is generally
unnecessary, and enumerating specific
form numbers reduces the agency’s
ability to modify or modernize its
business processes to address changing
needs. See, e.g., proposed 8 CFR
212.7(e)(5)(i) (replacing ‘‘Form I–601A’’
with ‘‘application for a provisional
unlawful presence waiver’’). Finally,
listing specific officer titles for
consideration of provisional waiver
applications restricts USCIS’ flexibility
in the adjudication of immigration
benefits. See, e.g., proposed 8 CFR
212.7(e)(12)(i)(C) (removing ‘‘consular
officer’’). Authorities and functions of
DHS to administer and enforce the
immigration laws are appropriately
delegated to DHS employees and others
in accordance with section 102(b)(1) of
the Homeland Security Act of 2002, 6
U.S.C. 112(b)(1); section 103(a) of the
INA, 8 U.S.C. 1103(a); and 8 CFR 2.1.
In addition, USCIS is proposing to
revise 8 CFR 212.7(e)(8) by removing the
superfluous sentence that states USCIS
may require the alien and the U.S.
citizen petitioner to appear for an
interview pursuant to 8 CFR 103.2(b)(9).
USCIS already has the authority to
require an applicant or petitioner to
appear for an interview under 8 CFR
103.2(b)(9). USCIS thus retains the
authority to require an interview
regardless of the inclusion of such
authority in § 212.7(e)(8). The cross
reference at 8 CFR 212.7(e)(8) was
unnecessarily redundant.
Finally, DHS is correcting two errors.
First, in 8 CFR 103.2(b), DHS is
replacing the article ‘‘an’’ with the
article ‘‘a,’’ wherever the article appears
before the term ‘‘benefit request’’ in
paragraphs (b)(6), (b)(9), (b)(10), and
(b)(12). Second, in 8 CFR 212.7(a), DHS
is removing the title to effectuate the
change that was intended to be made in
the 2013 rule.
F. Benefits of the Proposed Changes
By making the provisional waiver
process available to all aliens who are
statutorily eligible for the waiver of
unlawful presence under section
212(a)(9)(B)(v) and meet certain other
conditions, DHS would be expanding
the population of aliens who could
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Fmt 4702
Sfmt 4702
43343
benefit from a streamlined immigrant
visa process. DHS believes that
expanding availability of the provisional
waiver process would likely reduce the
overall immigrant visa processing time
for eligible immigrant visa applicants,
thereby saving DHS, DOS, and
applicants both the time and resources
currently devoted to the Form I–601
waiver process. DHS also believes that
the proposed expansion would reduce
the hardship that U.S. citizen and LPR
families experience as a result of
separation from their alien relatives.
Some immediate relatives of U.S.
citizens may also benefit from the
proposal to broaden the group of
individuals who can serve as qualifying
relatives for the provisional waiver’s
extreme hardship determination.
V. Public Input
DHS invites comments from all
interested parties, including advocacy
groups, nongovernmental organizations,
community-based organizations, and
legal representatives who specialize in
immigration law, on any and all aspects
of this proposed rule. DHS is
specifically seeking comments on:
a. The proposal to expand eligibility
for provisional waivers to include the
following aliens not covered by the
current rule:
• Immediate relatives of U.S. citizens
under INA section 201(b)(2), 8 U.S.C.
1151(b)(2), who can establish extreme
hardship to an LPR spouse or parent as
provided under INA section
212(a)(9)(B)(v);
• Family-sponsored immigrant visa
applicants under INA section 203(a), 8
U.S.C. 1153(a);
• Employment-based immigrant visa
applicants and certain special
immigrants under INA section 203(b), 8
U.S.C. 1153(b);
• Diversity immigrants under INA
section 203(c), 8 U.S.C. 1153(c); and
• Derivative family members of the
above mentioned immigrant visa
applicants, in accordance with INA
section 203(d), 8 U.S.C. 1153(d).
b. The proposal to limit eligibility for
provisional waivers to aliens as follows:
(1) for immediate relatives of U.S.
citizens, to those for whom DOS
initially acted to schedule their
immigrant visa interviews on or after
January 3, 2013; and (2) for all other
immigrant visa applicants, on or after
the effective date of the final rule.
c. Any alternatives to this proposed
rule that may be more effective than the
current provisional waiver process or
the amended process described in the
proposed rule.
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VI. Statutory and Regulatory
Requirements
A. Unfunded Mandates Reform Act of
1995
This proposed rule will not result in
the expenditure by State, local and
tribal governments, in the aggregate, or
by the private sector, of $100 million or
more in any one year, and it will not
significantly or uniquely affect small
governments. Therefore, no actions were
deemed necessary under the provisions
of the Unfunded Mandates Reform Act
of 1995.
B. Small Business Regulatory
Enforcement Fairness Act of 1996
This proposed rule is not a major rule
as defined by section 804 of the Small
Business Regulatory Enforcement Act of
1996. This rule will not result in an
annual effect on the economy of $100
million or more; a major increase in
costs or prices; or significant adverse
effects on competition, employment,
investment, productivity, innovation, or
on the ability of United States-based
companies to compete with foreignbased companies in domestic and
export markets.
C. 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. This rule is
a ‘‘significant regulatory action,’’
although not an economically
significant regulatory action, under
section 3(f) of Executive Order 12866.
Accordingly, the Office of Management
and Budget has reviewed this
regulation. This effort is consistent with
Executive Order 13563’s call for
agencies to ‘‘consider how best to
promote retrospective analysis of rules
that may be outmoded, ineffective,
insufficient, or excessively burdensome,
and to modify, streamline, expand, or
repeal them in accordance with what
has been learned.’’
1. Summary
The proposed expansion of the
provisional waiver process would create
costs and benefits to provisional waiver
(Form I–601A) applicants, their U.S.
citizen or lawful permanent resident
(LPR) family members, and the Federal
Government (namely, U.S. Citizenship
and Immigration Services (USCIS) and
the Department of State (DOS)), as
summarized in Table 1. This rule would
impose fee, time, and travel costs on
aliens who choose to complete and
submit provisional waiver applications
and biometrics (namely, fingerprints,
photograph, and signature) to USCIS for
consideration. These costs would be
$58.5 million at a 7 percent discount
rate and $71.6 million at a 3 percent
discount rate in present value across the
10-year period of analysis. On an
annualized basis, the costs are $8.3
million and $8.4 million at 7 percent
and 3 percent, respectively (see Table
1).
Newly eligible provisional waiver
applicants and their U.S. citizen or LPR
family members would benefit from this
rule. Beneficiaries of provisional
waivers may experience shortened
periods of separation from their family
members living in the United States
while they pursue an immigrant visa
abroad, thus reducing any related
financial and emotional strain on the
family. If finalized, some immediate
relatives of U.S. citizens may also
benefit from the rule’s broadened group
of individuals who can be qualifying
relatives for the provisional waiver’s
extreme hardship determination.
Additionally, USCIS and DOS would
continue to benefit from the operational
efficiencies gained from the provisional
waiver’s role in streamlining immigrant
visa application processing, though on a
larger scale than currently in place.
In the absence of this rule, DHS
assumes that the majority of aliens
newly eligible for provisional waivers
under this rule would pursue an
immigrant visa through consular
processing abroad and apply for waivers
of unlawful presence through the Form
I–601 process. Aliens who would
otherwise apply for unlawful presence
waivers through the Form I–601 process
would incur fee, time, and travel costs
similar to aliens applying for waivers
through the provisional waiver process.
But in the absence of this rule, Form I–
601 applicants would face longer
separation times from their family in the
United States and less certainty
regarding their application for the
waiver.
TABLE 1—TOTAL COSTS AND BENEFITS OF THIS RULE, YEAR 1–YEAR 10
10-Year present values
3% Discount rate
Total Costs:
Quantitative ...............................
Total Benefits:
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Qualitative .................................
VerDate Sep<11>2014
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Annualized values
7% Discount rate
$71,622,948
$58,520,192
Decreased amount of time that U.S. citizens or
LPRs are separated from their alien family members, leading to reduced financial and emotional
hardship for these families.
Federal Government would achieve increased efficiencies by streamlining immigrant visa processing for aliens seeking inadmissibility waivers
of unlawful presence.
Aliens, and their family members, would receive advance notice of USCIS’s decision on their waiver
application prior to leaving the United States for
their immigrant visa interview abroad, offering
many the certainty of knowing they have been
provisionally approved for a waiver.
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3% Discount rate
Fmt 4702
Sfmt 4702
$8,396,394
7% Discount rate
$8,331,959
Decreased amount of time that U.S. citizens or
LPRs are separated from their alien family members, leading to reduced financial and emotional
hardship for these families.
Federal Government would achieve increased efficiencies by streamlining immigrant visa processing for aliens seeking inadmissibility waivers
of unlawful presence.
Aliens, and their family members, would receive advance notice of USCIS’s decision on their waiver
application prior to leaving the United States for
their immigrant visa interview abroad, offering
many the certainty of knowing they have been
provisionally approved for a waiver.
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43345
TABLE 1—TOTAL COSTS AND BENEFITS OF THIS RULE, YEAR 1–YEAR 10—Continued
10-Year present values
3% Discount rate
Annualized values
7% Discount rate
Certain previously ineligible immediate relatives
may now qualify for provisional waivers due to
the broadened group of individuals who can be
qualifying relatives for the waiver’s extreme hardship determination.
3% Discount rate
7% Discount rate
Certain previously ineligible immediate relatives
may now qualify for provisional waivers due to
the broadened group of individuals who can be
qualifying relatives for the waiver’s extreme hardship determination.
Note: The cost estimates in this table are contingent upon Form I–601A filing (or receipt) projections as well as the discount rates applied for
monetized values.
2. Background
Aliens who are in the United States
and seeking LPR status must either
obtain an immigrant visa abroad
through consular processing with DOS
or apply to adjust status in the United
States, if eligible. Aliens present in the
United States without having been
inspected and admitted or paroled are
typically ineligible to adjust their status
in the United States. To obtain LPR
status, such aliens must leave the
United States for immigrant visa
processing at a U.S. Embassy or
consulate abroad. Because these aliens
are present in the United States without
having been inspected and admitted or
paroled, many have already accrued
enough unlawful presence (more than
180 days) to trigger the 3- or 10-year
unlawful presence grounds of
inadmissibility upon departure from the
United States. Indeed, in most cases, the
action these aliens must take to obtain
their immigrant visa—departing the
United States to attend a consular
interview—is the very action that
triggers the 3- or 10-year bar to
admissibility due to the accrual of
unlawful presence. See INA section
212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i).
While there may be limited exceptions,
the population affected by this rule
would consist almost exclusively of
aliens who are eligible for immigrant
visas but are unlawfully present in the
United States without having been
inspected and admitted or paroled.
Historically, aliens seeking an
immigrant visa through consular
processing were only able to apply for
a waiver of a ground of inadmissibility,
like a waiver of inadmissibility for
unlawful presence, after attending their
immigrant visa interview abroad. If a
consular officer identified a ground or
grounds of inadmissibility during an
immigrant visa interview, the immigrant
visa applicant was tentatively denied an
immigrant visa and allowed to complete
a waiver of the applicable ground(s) of
inadmissibility, if a waiver was
available. The immigrant visa applicant
could apply for such a waiver by filing
an Application for Waiver of Grounds of
Inadmissibility, Form I–601, with
USCIS. Applicants who applied for such
waivers were required to remain abroad
while USCIS adjudicated their Form I–
601, which currently takes an average of
five months to complete.14 If USCIS
granted a waiver of the inadmissibility
ground(s), DOS subsequently scheduled
a follow-up consular interview.
Provided there were no other concerns
raised by the consular officer, DOS
generally issued the immigrant visa
during the follow-up consular
interview. For some aliens, the Form I–
601 waiver process has led to lengthy
separations of immigrant visa applicants
and their U.S. citizen or LPR spouses,
parents, and children, causing both
financial and emotional harm. The Form
I–601 waiver process has also created
processing inefficiencies for both USCIS
and DOS through repeated interagency
communication and through multiple
consular appointments or interviews.
With the goals of streamlining the
inadmissibility waiver process,
facilitating efficient immigrant visa
issuance, and promoting family unity,
DHS promulgated a rule that established
an alternative inadmissibility waiver
process on January 3, 2013 (‘‘2013
rule’’).15 The 2013 rule created a
provisional waiver process for certain
immediate relatives of U.S. citizens
(namely, spouses, children, and parents
of U.S. citizens) who are in the United
States, are seeking immigrant visas, can
demonstrate extreme hardship to a U.S.
citizen spouse or parent, and would be
inadmissible upon departure from the
United States due to only the accrual of
unlawful presence. That process
allowed such aliens to apply for a
provisional waiver prior to departing for
DOS consular processing of their
immigrant visa applications. Instead of
requiring them to wait abroad while
USCIS adjudicates their application for
a waiver of inadmissibility through the
Form I–601 waiver process, the
provisional waiver process established
in 2013 allowed those applicants to
remain in the United States with their
U.S. citizen relative(s) while awaiting
notification of USCIS’s decision on their
provisional waiver application.
Following approval of a provisional
waiver, applicants are scheduled for
their immigrant visa interviews abroad.
Since the provisional waiver process’s
inception, USCIS has approved more
than 44,000 provisional waiver
applications (through Form I–601A
filings) for certain immediate relatives
of U.S. citizens,16 allowing these
individuals to enjoy the benefits
incident to such waivers. Illustrating the
demand for provisional waivers, Table 2
displays the historical numbers of Form
I–601A receipts, approvals, and denials
recorded for March of fiscal year (FY)
2013 through January of FY 2015.
TABLE 2—HISTORICAL NUMBERS OF FORM I–601A RECEIPTS, APPROVALS, AND DENIALS
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Fiscal Year
Month
2013 ................................................................
Mar. ................................................................
Apr. .................................................................
May .................................................................
14 This figure is based on Form I–601 average
adjudication times gathered from USCIS’s Nebraska
Service Center on March 3, 2015.
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78 FR 536 (Jan. 3, 2013).
figure is based on Form I–601A approvals
data through January 2015. Please note that USCIS
PO 00000
15 See
Receipts
16 This
Frm 00008
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Sfmt 4702
1,306
2,737
3,267
Approvals
746
5
52
Denials
421
2
19
began accepting provisional waiver applications on
March 4, 2013. Source: Data gathered from USCIS’s
Office of Performance and Quality on February 20,
2015.
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Federal Register / Vol. 80, No. 140 / Wednesday, July 22, 2015 / Proposed Rules
TABLE 2—HISTORICAL NUMBERS OF FORM I–601A RECEIPTS, APPROVALS, AND DENIALS—Continued
Fiscal Year
Month
Receipts
Approvals
Denials
Jun. .................................................................
Jul. ..................................................................
Aug. ................................................................
Sep. ................................................................
3,119
3,425
3,075
2,798
226
1006
1435
1,749
345
763
937
458
FY 2013 Total ..........................................
2014 ................................................................
.........................................................................
Oct. .................................................................
Nov. ................................................................
Dec. ................................................................
Jan. .................................................................
Feb. ................................................................
Mar. ................................................................
Apr. .................................................................
May .................................................................
Jun. .................................................................
Jul. ..................................................................
Aug. ................................................................
Sep. ................................................................
19,727
2,886
2,697
2,641
2,256
2,483
2,989
3,265
3,650
4,184
3,778
3,907
4,237
4,473
1,465
1,456
1,708
1,616
1,282
1,216
1,363
2,052
3,152
4,211
3,914
4,076
2,524
612
577
541
793
574
987
675
640
1,057
1,451
1,808
1,493
FY 2014 Total ..........................................
2015 ................................................................
.........................................................................
Oct. .................................................................
Nov. ................................................................
Dec. ................................................................
Jan. .................................................................
38,973
4,540
3,726
4,103
3,370
27,511
4,196
2,168
2,838
3,012
11,208
1,465
948
1,185
1,443
FY 2015 Total ..........................................
Cumulative FY 2013–FY 2015 Total
.........................................................................
.........................................................................
15,739
74,439
12,214
44,198
5,041
18,773
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Note: Approvals and denials reflect actual cases adjudicated, which do not directly correspond to filing receipts for the month.
Source: Data gathered from USCIS’s Office of Performance and Quality on March 5, 2015.
3. Purpose of Rule
Despite the provisional waiver
process’s benefits to certain immediate
relatives of U.S. citizens, thousands of
non-immediate relatives of U.S. citizens
and LPRs 17 seeking immigrant visas
who are inadmissible to the United
States due to only unlawful presence
still face the financial and emotional
burdens of pursuing a Form I–601
waiver while outside of the country and
away from their family in the United
States. In addition to promoting the goal
of family unity between eligible nonimmediate relatives and their U.S.
citizen or LPR family members, this rule
would increase USCIS and DOS
efficiencies by streamlining the waiver
process for unlawful presence for this
expanded group of aliens.
To assess the initial effectiveness of
the provisional waiver process, DHS
decided to offer this process to a limited
group of aliens in the 2013 rule.18 Based
on the Form I–601 waiver process’s
financial and emotional burdens to
families and the efficiencies realized for
both USCIS and DOS through the
provisional waiver process, the
Secretary directed USCIS to expand
17 Examples of family relationships that fall into
the ‘‘non-immediate’’ category include, but are not
limited to, adult sons and daughters of U.S.
citizens; brothers and sisters of U.S. citizens; and
spouses and children of LPRs.
18 See 78 FR at 542 (Jan. 3, 2013).
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eligibility for the provisional waiver
process beyond certain immediate
relatives of U.S. citizens to all
statutorily eligible relatives of U.S.
citizens and LPRs.19 Consistent with
that directive, USCIS (through DHS
authority) now proposes to extend the
provisional waiver process to include
all other aliens seeking an immigrant
visa (hereafter, ‘‘all other immigrant visa
applicants’’) who are statutorily eligible
to apply for a waiver of the 3- or 10-year
unlawful presence bar, are present in
the United States, and otherwise meet
the requirements of the provisional
waiver process.20 USCIS also proposes
to allow LPR spouses and parents, in
addition to currently eligible U.S.
citizen spouses and parents, to serve as
qualifying relatives for the provisional
waiver’s extreme hardship
determination. Under this proposal,
provisional waiver applicants could
show that their denial of admission
would cause extreme hardship to their
U.S. citizen or LPR spouses or parents.
Memorandum from Jeh Charles Johnson,
´
´
Secretary, for Leon Rodrıguez, Director, U.S.
Citizenship and Immigration Services, Expansion of
the Provisional Waiver Program, Nov. 20, 2014,
available at https://www.dhs.gov/sites/default/files/
publications/14_1120_memo_i601a_waiver.pdf.
20 The phrase ‘‘all other immigrant visa
applicants’’ encompasses the following immigrant
visa categories: Family-sponsored immigrants,
employment-based immigrants, diversity
immigrants, and certain special immigrants.
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19 See
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This rule’s proposed changes would
provide more aliens and their U.S.
citizen or LPR family members with the
provisional waiver’s main benefit of
shortened family separation periods,
while increasing USCIS and DOS
efficiencies by streamlining the
immigrant visa process for such aliens.
Additionally, the proposed changes may
allow more immediate relatives of U.S.
citizens to qualify for provisional
waivers by broadening the group of
individuals who could serve as
qualifying relatives for the waiver’s
extreme hardship determination. Other
than the changes proposed in this
rulemaking, DHS would maintain all
other eligibility requirements for the
provisional waiver as currently outlined
in 8 CFR 212.7(e), including the
requirements to submit biometrics, pay
a $585 application fee and $85
biometric services fee, and be currently
present in the United States at the time
of the provisional waiver application
filing and biometrics appointment.
4. Current Provisional Waiver Process
In this analysis, DHS draws on
relevant DOS inadmissibility statistics
and historical provisional waiver
application data to estimate the demand
for provisional waivers occurring in the
absence of this rule (for certain
immediate relatives of U.S. citizens), as
well as directly resulting from this rule
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Federal Register / Vol. 80, No. 140 / Wednesday, July 22, 2015 / Proposed Rules
(for the expanded population of eligible
immigrant visa beneficiaries). Table 3
shows DOS’s historical immigrant visa
inadmissibility findings due to only
unlawful presence. Between FYs 2010
and 2014, DOS recorded inadmissibility
due to only unlawful presence for
almost 241,000 immediate relative visas
and for nearly 60,000 all other
immigrant visas.21
TABLE 3—NUMBER OF IMMIGRANT VISA INADMISSIBILITY FINDINGS DUE TO ONLY UNLAWFUL PRESENCE
Visa category type
Fiscal year
2010
2011
2012
2013
2014
Total
All other
immigrants 23
Immediate
relatives 22
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
44,497
45,961
46,520
45,602
58,058
4,955
13,162
13,568
14,354
13,946
49,452
59,123
60,088
59,956
72,004
Total ......................................................................................................................................
240,638
59,985
300,623
Source: Data gathered from the U.S. Department of State’s Bureau of Consular Affairs on March 25, 2015.
With the implementation of the 2013
rule, immediate relatives of U.S. citizens
seeking immigrant visas who were
present in the United States,
demonstrated extreme hardship to their
U.S. citizen spouse or parent, and were
inadmissible only for unlawful presence
became eligible to apply for provisional
waivers. See 8 CFR 212.7(e). Table 4
compares the number of DOS immediate
relative visa inadmissibility findings
due to only unlawful presence and
provisional waiver applications filed
with USCIS for FYs 2013 and 2014.
Because the provisional waiver process
went into effect in March 2013,
immediate relatives could file
provisional waiver applications only
during the last seven months of FY
2013.24 Thus, for comparison purposes,
USCIS adjusted DOS’s FY 2013
immediate relative visa inadmissibility
counts to reflect only a partial year
(specifically, 7/12 of a year). During FYs
2013 and 2014, USCIS received a total
of 58,700 provisional waiver
applications, which represented
approximately 70 percent 25 of the
population of certain immediate
relatives found inadmissible for
unlawful presence during that same
time period.26
TABLE 4—NUMBER OF IMMEDIATE RELATIVE IMMIGRANT VISA INADMISSIBILITY FINDINGS DUE TO ONLY UNLAWFUL
PRESENCE COMPARED TO HISTORICAL FORM I–601A RECEIPTS
Immediate relative immigrant visa
inadmissibility
Fiscal year
Inadmissibility
findings
Inadmissibility
findings adjusted
for partial year
Immediate relative Form I–601A
receipts
Actual Form
I–601A receipts
Ratio of Form I–
601A receipts to
inadmissibility
findings
(%)
Year 1 (2013) ...........................................................................
Year 2 (2014) ...........................................................................
45,602
58,058
26,601
58,058
19,727
38,973
74
67
2-Year Total/Avg. ..............................................................
103,660
84,659
58,700
70
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Notes: The provisional waiver process’s implementation date was March 4, 2013. DHS adjusted the full year of immediate relative immigrant
visa inadmissibility counts due to only unlawful presence in 2013 to account for only the portion of the year in which the provisional waiver process existed. The data listed in this table was rounded.
The actual Form I–601A filing
demands, illustrated in Table 2 and
Table 4, differ from the estimates in the
2013 rule’s economic impact analysis.
When DHS conducted the 2013 rule’s
economic impact analysis, DHS did not
have statistics on unlawful presence
inadmissibility findings for immediate
relatives that would allow for a precise
calculation of the rule’s impact. Due to
such limitations, DHS instead estimated
the rule’s impact based on various
demand scenarios. In this rule’s
analysis, DHS retrospectively examined
DOS data on unlawful presence
inadmissibility findings for immediate
relatives and compared this information
against USCIS receipts for provisional
waiver applications (through Form I–
601A filings) to determine the future
demand for provisional waivers.
When determining a figure upon
which to base future inadmissibility
estimates and subsequent Form I–601A
demand, DHS chose to use the actual FY
2014 inadmissibility count for unlawful
presence rather than a multi-year
21 Of the inadmissibility figures recorded for all
other immigrant visa categories, nearly 98 percent
corresponded to family-sponsored (other than
immediate relatives of U.S. citizens) immigrant visa
applications, 1 percent corresponded to
employment-based immigrant visa applications, 1
percent corresponded to Diversity Visa immigrant
applications, and a fraction of 1 percent
corresponded to certain special immigrant visa
applications.
22 Population addressed in the 2013 rule
(immediate relatives of U.S. citizens).
23 Population impacted by this rule.
24 FY 2013 is October 1, 2012 to September 30,
2013.
25 Calculated as 58,700 2-year total Form I–601A
receipts divided by 84,659 total immediate relative
inadmissibility count for March 2013 through FY
2014, which equals 0.693, or 0.70 when rounded to
the first decimal place.
26 Data gathered from USCIS’s Office of
Performance and Quality Reporting on March 5,
2015.
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Federal Register / Vol. 80, No. 140 / Wednesday, July 22, 2015 / Proposed Rules
average of historical values as the
averages did not seem to fully capture
the general rise in inadmissibility
findings occurring between FYs 2010
and 2014 (see Table 3).27 Consistent
with the ratio of provisional waiver
application filings to immediate relative
visa inadmissibility counts based solely
on unlawful presence during FYs 2013
and 2014 listed in Table 4, DHS
assumes that 70 percent of the
population of immediate relatives found
inadmissible only for unlawful presence
would file a Form I–601A provisional
waiver application. In the absence of
this rule, DHS projects that the number
of immediate relative visa
inadmissibility findings due to only
unlawful presence would continue to
increase from the FY 2014 count shown
in Table 4 (58,058) by 2.5 percent per
year based on the compound annual
growth rate of the unauthorized
immigrant population living in the
United States between 2000 and 2012.28
To calculate future Form I–601A filing
(or receipt) volumes, DHS multiplies the
70 percent provisional waiver filing rate
by the annual numbers of immediate
relative immigrant visa inadmissibility
findings due to only unlawful presence.
Note that when applying this filing rate
to yearly inadmissibility figures, the
numbers may not match those listed in
Table 5 due to rounding.29 DHS
originally calculated the estimates in
Table 5 using unrounded figures.
Thereafter, all estimates were
simultaneously rounded for tabular
presentation. In the absence of this rule,
USCIS would receive a projected
467,000 provisional waiver applications
across 10 years of analysis, as Table 5
illustrates. These provisional waiver
applications may ultimately result in
waiver approvals or denials.
TABLE 5—PROJECTED NUMBERS OF IMMEDIATE RELATIVE IMMIGRANT VISA INADMISSIBILITY FINDINGS DUE TO ONLY
UNLAWFUL PRESENCE AND FORM I–601A APPLICATIONS IN THE ABSENCE OF THIS RULE
[Population addressed in 2013 rule]
Inadmissibility
findings due to
only unlawful
presence—immediate relatives 30
Form I–601A receipts—immediate
relatives 31
1 ..........................................................................................................................................................
2 ..........................................................................................................................................................
3 ..........................................................................................................................................................
4 ..........................................................................................................................................................
5 ..........................................................................................................................................................
6 ..........................................................................................................................................................
7 ..........................................................................................................................................................
8 ..........................................................................................................................................................
9 ..........................................................................................................................................................
10 ........................................................................................................................................................
59,509
60,997
62,522
64,085
65,687
67,329
69,013
70,738
72,506
74,319
41,657
42,698
43,765
44,860
45,981
47,131
48,309
49,517
50,755
52,023
Total ......................................................................................................................................................
666,705
466,696
Fiscal year
Year
Year
Year
Year
Year
Year
Year
Year
Year
Year
Notes: The estimates in this table were originally calculated using unrounded figures. Thereafter, all estimates were simultaneously rounded
for tabular presentation. Estimates may not sum to total due to rounding.
5. The Population Affected by This Rule
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With this rule’s implementation, the
number of provisional waiver
applications would increase from the
figures listed in Table 5 as the waiver
eligibility criteria expands from only
certain immediate relatives of U.S.
citizens to include all other immigrant
visa applicants who are present in the
27 Both the three-year FY 2012–FY 2014 average
(50,060) and five-year FY 2010–FY 2014 average
(48,128) of immediate relative inadmissibility
finding counts differed significantly from the FY
2014 total immediate relative inadmissibility
finding count of 58,058 (see Table 3).
28 Calculated by comparing the estimated
unauthorized immigrant population living in the
United States in 2000 (8,500,000) and the estimated
unauthorized immigrant population living in the
United States in 2012 (11,400,000). In recent years,
the estimated unauthorized immigrant population
has decreased. DHS uses the historical growth rate
in the unauthorized immigrant population from
2000 to 2012 because it most likely reflects the
population impacted by this rule. This population
includes those who have likely been unlawfully
present in the United States for an extended period
and who have already started the immigrant visa
process by having an approved petition. Source:
U.S. Department of Homeland Security’s Office of
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United States and who otherwise meet
the requirements of the provisional
waiver process.32 DHS does not believe
that this proposed rule would induce
any new demand above the status quo
for petitions or immigrant visa
applications for this expanded group of
aliens. DHS bases this assumption on
the fact that the immigrant visa
categories to which this rule would now
apply (namely, family-sponsored,
employment-based, diversity, and
certain special immigrant visa
categories) are generally subject to
statutory visa issuance limits and
lengthy visa availability waits due to
oversubscription,33 unlike the
immediate relative category currently
Immigration Statistics, Estimates of the
Unauthorized Immigrant Population Residing in the
United States: January 2012, Figure 1,
Unauthorized Immigrant Population: 2000–2012,
Mar. 2013, available at https://www.dhs.gov/sites/
default/files/publications/ois_ill_pe_2012_2.pdf.
29 For example, using the figures in Table 5, the
Year 1 immediate relative immigrant visa
inadmissibility findings count due to only unlawful
presence equals 59,509. Calculation: 59,909
multiplied by 0.70 (the Form I–601A filing rate)
equals 41,656.3. The calculated result differs
slightly from the 41,657 Year 1 Form I–601A
receipts figure in the table.
30 Population of immediate relatives potentially
eligible for provisional waivers.
31 Estimated number of provisional waiver
applications from the eligible population of
immediate relatives. These applications do not
necessarily correspond to waiver approvals.
32 As previously mentioned, the phrase ‘‘all other
immigrant visa applicants’’ encompasses the
following immigrant visa categories: Familysponsored immigrants, employment-based
immigrants, Diversity Visa immigrants, and certain
special immigrants.
33 Family-sponsored immigrant visa applicants,
who represent nearly 98 percent of the ‘‘all other
immigrant visa applicant’’ population found
inadmissible due to only unlawful presence,
currently face visa oversubscription. This means
that any new family-sponsored visa applicants must
wait in line for available visas. Depending upon the
applicant’s country of chargeability and preference
category, this wait could be many years. Source:
U.S. Department of State, Visa Bulletin for April
2015, IX (79), Mar. 2015, available at https://
travel.state.gov/content/visas/english/law-andpolicy/bulletin/2015/visa-bulletin-for-april2015.html.
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eligible for provisional waivers.
Furthermore, there is no evidence that
the Secretary’s November 2014
memorandum 34 on the expansion of the
provisional waiver process spurred a
significant increase in filings of the
Petition for Alien Relative, Form I–130,
or the Immigrant Petition for Alien
Worker, Form I–140.35 Thus, DHS does
not believe that this rule would increase
the demand for the immigrant visa
categories to which it applies.
To determine the impact of this rule,
DHS employs the same projection
method used to estimate future volumes
of unlawful presence inadmissibility
findings and provisional waiver
applications occurring in the absence of
this rule. By applying the previously
discussed historical 2.5 percent
compound annual growth rate of
unauthorized immigrants from 2000 to
2012, to the FY 2014 count of all other
immigrant visa inadmissibility findings
due to only unlawful presence (13,946,
as listed in Table 3), DHS projects that
non-immediate relative immigrant visa
inadmissibility findings due to only
unlawful presence would measure
approximately 14,295 during this rule’s
first year of implementation (see Table
6).36 Based on the current demand for
provisional waivers, DHS assumes that
70 percent of the ‘‘all other immigrant
visa applicant’’ population found
inadmissible due to only unlawful
presence each year would apply for a
provisional waiver annually (see Table
6). Note that when applying this 70
percent filing rate to the inadmissible
population estimates in Table 6, the
numbers may not match those in the
table due to rounding. The estimates in
Table 6 were originally calculated using
unrounded figures. Thereafter, all
estimates were simultaneously rounded
for tabular presentation.
Table 6 outlines the population of all
other immigrant visa applicants
impacted by this rule. During this rule’s
43349
first year of implementation, DHS
projects that USCIS could receive
approximately 10,006 provisional
waiver applications from newly eligible
non-immediate relatives.37 Across a 10year period of analysis, DHS estimates
that inadmissibility findings based
solely on unlawful presence for nonimmediate relatives would total about
160,000, while provisional waiver
applications from this population of
inadmissible non-immediate relative
immigrants would measure nearly
112,000. These provisional waiver
applications may ultimately result in
waiver approvals or denials. Note that
Table 6 presents only the additional
Form I–601A filings that would occur as
a result of this rule; it does not account
for the provisional waiver applications
that DHS anticipates would be filed in
the absence of this rule by certain
immediate relatives of U.S. citizens
(listed in Table 5).
TABLE 6—PROJECTED NUMBERS OF ALL OTHER IMMIGRANT VISA INADMISSIBILITY FINDINGS DUE TO ONLY UNLAWFUL
PRESENCE AND FORM I–601A APPLICATIONS RESULTING FROM THIS RULE
Inadmissibility
findings due to
only unlawful
presence—
All other
immigrants 38
Fiscal year
Year
Year
Year
Year
Year
Year
Year
Year
Year
Year
Total Form I–601A
receipts—All other
immigrants 39
1 ..........................................................................................................................................................
2 ..........................................................................................................................................................
3 ..........................................................................................................................................................
4 ..........................................................................................................................................................
5 ..........................................................................................................................................................
6 ..........................................................................................................................................................
7 ..........................................................................................................................................................
8 ..........................................................................................................................................................
9 ..........................................................................................................................................................
10 ........................................................................................................................................................
14,295
14,652
15,018
15,394
15,779
16,173
16,577
16,992
17,417
17,852
10,006
10,256
10,513
10,776
11,045
11,321
11,604
11,894
12,192
12,496
Total ......................................................................................................................................................
160,149
112,103
Notes: The estimates in this table were originally calculated using unrounded figures. Thereafter, all estimates were simultaneously rounded
for tabular presentation. Estimates may not sum to total due to rounding.
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In addition to the non-immediate
relative population affected by this rule
illustrated in Table 6, this rule’s
broadened group of qualifying relatives
for the provisional waiver’s extreme
hardship determination may impact
some immediate relatives of U.S.
citizens. Yet, the exact number of such
immediate relatives is unknown. DHS
welcomes any public comments on the
population projections used in this
analysis.
34 See Memorandum from Jeh Charles Johnson,
´
´
Secretary, for Leon Rodrıguez, Director, U.S.
Citizenship and Immigration Services, Expansion of
the Provisional Waiver Program, Nov. 20, 2014,
available at https://www.dhs.gov/sites/default/files/
publications/14_1120_memo_i601a_waiver.pdf.
35 Based on a DHS comparison of Form I–130 and
Form I–140 filings during the fiscal years before and
after the Secretary’s 2014 memorandum on the
expansion of the provisional waiver program.
36 FY 2014 ‘‘all other immigrant visa applicants’’
count found inadmissible due to only unlawful
presence of 13,946 multiplied by 2.5 percent growth
rate (that is, 1.025), which equals 14,295 nonimmediate relative immigrant visa applicants found
inadmissible due to only unlawful presence
(rounded).
37 Year 1’s 14,295 non-immediate relative
immigrant visa applicant count found inadmissible
due to only unlawful presence multiplied by a 70
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6. Costs and Benefits
To summarize, aliens who are
immediate relatives of U.S. citizens and
who are currently eligible for
provisional waivers would continue to
apply for such waivers in the absence of
this rule. At the time of the 2013 rule,
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DHS was unable to predict the likely
application volumes of Form I–601A
with precision. With additional
information from DOS and the
experience since the provisional
waiver’s inception, DHS can reasonably
project the provisional waiver
application rate from currently eligible
immediate relatives who trigger
unlawful presence bars. In fact, DHS
percent filing rate (0.70), which equals 10,006 Form
I–601A receipts.
38 Population of immigrants newly eligible under
this rule for provisional waivers.
39 Estimated number of provisional waiver
applications from the eligible population of all
other immigrants. These applications do not
necessarily correspond to waiver approvals.
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Federal Register / Vol. 80, No. 140 / Wednesday, July 22, 2015 / Proposed Rules
estimates that USCIS would receive
467,000 provisional waiver applications
from currently eligible immediate
relatives of U.S. citizens across 10 years
of analysis (see Table 5). Table 5
represents the baseline of immediate
relatives of U.S. citizens that would
trigger unlawful presence bars, and
those that would likely apply for a
provisional waiver based on recent
application rates. This proposed rule
would expand eligibility for the
provisional waiver process to include
individuals who fall within all other
immigrant visa classifications, are
statutorily eligible to apply for a waiver
of the 3- or 10-year unlawful presence
bar, are present in the United States,
and otherwise meet the requirements of
the provisional waiver process.40 As
illustrated in Table 6, DHS estimates
that provisional waiver applications
from the population of newly eligible
non-immediate relative immigrants
would measure nearly 112,000 across a
10-year period of analysis. As
previously mentioned, this proposed
rule could also impact some immediate
relatives of U.S. citizens by amending
the definition of qualifying relatives for
purposes of extreme hardship
determinations, but the exact number is
unknown. Accordingly, DHS analyzes
the costs and benefits of this rule to the
population of newly eligible nonimmediate relatives expected to apply
for provisional waivers (see Table 6,
‘‘Total Form I–601A Receipts—All
Other Immigrants’’ column), while
qualitatively discussing the rule’s
potential impact on immediate relatives
of U.S. citizens who would now qualify
for provisional waivers under this
proposed rule.
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Costs
Applicants from the expanded
population of aliens who are newly
eligible to apply for a provisional waiver
under this proposed rule would bear the
costs of this regulation. Certain
immediate relatives of U.S. citizens
already eligible to apply for a
provisional waiver would not incur
costs from this rule.41 Although the
waiver expansion may require USCIS to
expend resources on additional
adjudication personnel, associated
equipment (e.g., computers and
telephones), and related occupancy
demands, USCIS expects these costs to
be offset by the additional fee revenue
collected from the $585 Form I–601A
40 ‘‘All other immigrant visa applicants’’
encompass the following immigrant visa categories:
Family-sponsored, employment-based, diversity,
and certain special immigrants.
41 See 78 FR 536 (Jan. 3, 2013).
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filing fee and the $85 biometric services
fee.42 Accordingly, DHS does not
believe that this rule would impose
additional net costs on the agency.
To receive a provisional waiver under
this rule, eligible aliens must first
complete a Form I–601A and submit it
to USCIS with its $585 filing fee and
$85 biometric services fee. DHS
estimates the time burden of completing
Form I–601A to be 1.5 hours, which
translates to a time, or opportunity, cost
of $15.89 per application.43 DHS
calculates the Form I–601A
application’s opportunity cost to aliens
by first multiplying the current Federal
minimum wage of $7.25 per hour by
1.46 to account for the full cost of
employee benefits (such as paid leave,
insurance, and retirement), which
results in a time value of $10.59 per
hour.44 Then, DHS multiplies the
$10.59 hourly time value by the current
1.5-hour Form I–601A completion time
burden to determine the opportunity
cost for aliens to complete Form I–601A
($15.89). DHS recognizes that the aliens
impacted by the rule are generally
unlawfully present and not eligible to
work; however, consistent with other
DHS rulemakings, DHS uses wage rates
as a mechanism to estimate the
opportunity costs to aliens associated
with completing this rule’s required
application and biometrics collection.
The cost for aliens to initially file a
Form I–601A, including only the $585
filing fee and opportunity cost, equals
$600.89.
After USCIS receives an alien’s
completed Form I–601A and its filing
and biometric services fees, the agency
sends the alien a notice scheduling him
42 Fee information gathered from USCIS, ‘‘I–
601A, Application for Provisional Unlawful
Presence Waiver,’’ available at https://
www.uscis.gov/i-601a (last updated Mar. 3, 2015).
The $585 Form I–601A filing fee and the $85
biometric services fee are subject to change through
the normal fee review cycle and any subsequent
rulemaking issued by USCIS. USCIS will consider
the impact of the provisional waiver and biometrics
process workflows and resource requirements as a
normal part of its biennial fee review. The biennial
fee review determines if fees for immigration
benefits are sufficient in light of resource needs and
filing trends. See INA section 286(m), 8 U.S.C.
1356(m).
43 See 79 FR 36543 (June 27, 2014) for the
estimated Form I–601A completion time burden.
44 Federal minimum wage information gathered
from the U.S. Department of Labor, Wage and Hour
Division, available at https://www.dol.gov/dol/topic/
wages/minimumwage.htm (last accessed Mar. 5,
2015). Employer benefits adjustment information
gathered from the U.S. Department of Labor, Bureau
of Labor Statistics. ‘‘Economic News Release, Table
1. Employer costs per hour worked for employee
compensation and costs as a percent of total
compensation: Civilian workers, by major
occupational and industry group, September 2014.’’
Dec. 10, 2015, available at https://www.bls.gov/
news.release/ecec.htm.
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or her to visit a USCIS Application
Support Center (ASC) for biometrics
collection. Along with an $85 biometric
services fee, the applicant would incur
the following costs to comply with the
provisional waiver’s biometrics
submission requirement: the
opportunity cost of traveling to an ASC,
the opportunity cost of submitting his or
her biometrics, and the mileage cost of
traveling to an ASC. While travel times
and distances vary, DHS estimates that
an applicant’s average roundtrip
distance to an ASC is 50 miles, and that
the average time for that trip is 2.5
hours. DHS estimates that an alien waits
an average of 1.17 hours for service and
to have his or her biometrics collected
at an ASC, adding up to a total
biometrics-related time burden of 3.67
hours.45 By applying the $10.59 hourly
time value for aliens to the total
biometrics-related time burden, DHS
finds that the opportunity cost for a
provisional waiver applicant to travel to
and from an ASC, and to submit
biometrics, would total $38.87.46 In
addition to the opportunity cost of
providing biometrics, provisional
waiver applicants would experience
travel costs related to biometrics
collection. The cost of such travel
would equal $28.75 per trip, based on
the 50-mile roundtrip distance to an
ASC and the General Services
Administration’s (GSA) travel rate of
$0.575 per mile.47 DHS assumes that
each alien would travel independently
to an ASC to submit his or her
biometrics, meaning that this rule
would impose a time cost on each of
these applicants. Adding the fee,
opportunity, and travel costs of
biometrics collection together, DHS
estimates that the provisional waiver’s
requirement to submit biometrics would
cost a total of $152.62 per Form I–601A
filing.
Once all of the aforementioned fee,
time, and travel costs to comply with
the provisional waiver’s requirements
are accounted for, DHS finds that each
Form I–601A filing would cost an alien
$753.51. Table 7 shows that the overall
cost of this rule to the expanded
population of provisional waiver
applicants (namely, non-immediate
relatives of U.S. citizens and LPRs)
would measure $84.5 million
(undiscounted) over the 10-year period
of analysis. DHS calculates this rule’s
total cost to applicants by multiplying
45 See 79 FR 36543 (June 27, 2014) for Form I–
601A biometrics collection time burden.
46 3.67 hours multiplied by $10.59 per hour
equals $38.87.
47 50 miles multiplied by $0.575 per mile equals
$28.75. See 79 FR 78437 (Dec. 30, 2014) for GSA
mileage rate.
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the individual cost of completing the
provisional waiver application
requirements ($753.51) by the number
of newly eligible aliens projected to
apply for provisional waivers each year
following the implementation of this
rule (listed in Table 6). In present value
terms, this rule would cost newly
eligible non-immediate relative waiver
applicants $58.5 million to $71.6
million across a 10-year period,
depending on the discount rate applied
(see Table 7). Because this rule would
not generate any net costs to USCIS,
Table 7 also illustrates the total cost of
this rule.
TABLE 7—TOTAL COST OF THIS RULE
TO NON-IMMEDIATE RELATIVE APPLICANTS
Fiscal year
Year
Year
Year
Year
Year
Year
Year
Year
Year
Year
1 ...................................
2 ...................................
3 ...................................
4 ...................................
5 ...................................
6 ...................................
7 ...................................
8 ...................................
9 ...................................
10 .................................
10-Year Total:
Undiscounted .............
10-Year Total: Present
Value, Discounted at
3 percent ....................
10-Year Total: Present
Value, Discounted at
7 percent ....................
Total waiver
cost to
applicants
$7,539,621
7,727,999
7,921,651
8,119,824
8,322,518
8,530,487
8,743,730
8,962,248
9,186,794
9,415,861
84,470,732
71,622,948
58,520,192
Notes: Estimates may not sum to total due
to rounding. The cost estimates in this table
are contingent upon Form I–601A filing (or receipt) projections as well as the discount rates
applied.
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DHS welcomes any public comments
on the costs of this proposed rule.
Benefits
The benefits of this proposed rule are
largely the result of streamlining the
immigrant visa process for an expanded
population of aliens who are
inadmissible to the United States solely
due to unlawful presence. For those
aliens who are newly eligible for a
provisional waiver and their U.S. citizen
or LPR family members, the primary
benefits of this rule are its reduced
separation time among family members
during the immigrant visa process for
aliens granted waivers and improved
predictability of the immigrant visa
process. Instead of attending multiple
immigrant visa interviews and waiting
abroad while USCIS adjudicates a
waiver application as required under
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the Form I–601 waiver process, the
provisional waiver process allows aliens
to file a provisional waiver application
and remain in the United States while
it is adjudicated by USCIS. This process
generally allows eligible provisional
waiver applicants to stay with their
family members in the United States
while awaiting adjudication and to
receive advance notice of USCIS’s
decision on their waiver application
prior to leaving the United States for
their immigrant visa interview abroad.
Although DHS cannot estimate with
precision the exact amount of separation
time families would save through this
rule, DHS estimates that some newly
eligible provisional waiver applicants
and their U.S. citizen or LPR family
members could experience several
months of reduced separation time
based on the average adjudication time
for Form I–601 waiver applications.48 In
addition to the humanitarian and
emotional benefits derived from
reduced separation of families, DHS
anticipates that the shortened periods of
family separation resulting from this
rule may lessen the financial burden
U.S. citizens and LPRs face to support
their relatives while they remain outside
of the country. Because of data
limitations, however, DHS cannot
predict the exact financial impact of this
change.
Due to the unique nature of the
Diversity Visa program, aliens seeking
an immigrant visa through that program
and wishing to use the provisional
waiver process are likely to enjoy fewer
overall benefits from this rule than other
non-immediate relative immigrant visa
and waiver applicants. Although an
alien may be selected to participate in
the Diversity Visa program, he or she
may not ultimately receive an
immigrant visa due to visa
unavailability. Under this proposed
rule, Diversity Visa selectees and their
derivatives who wish to use the
provisional waiver process may file a
waiver application in advance of
knowing whether their immigrant visa
will ultimately be available to them. For
those provisional waiver applicants
pursuing the Diversity Visa track, the
risk of completing the provisional
waiver process without being issued a
visa is higher compared to applicants of
other immigrant visa categories filing
48 The average adjudication time of Form I–601
waivers is currently five months based on
information gathered from USCIS’s Nebraska
Service Center on March 3, 2015. Updated
processing times for Form I–601 are also posted on
the USCIS Web site at: https://egov.uscis.gov/cris/
processTimesDisplayInit.do.
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Form I–601A.49 If a Diversity Visa
program selectee’s provisional waiver is
approved but he or she is not ultimately
issued an immigrant visa, he or she
would incur the costs but not the
benefits associated with a provisional
waiver.
Although the main benefits of this
rule would center on the expanded
group of aliens newly eligible to apply
for provisional waivers, certain
immediate relatives of U.S. citizens may
also experience benefits from this rule.
Through this rulemaking, DHS proposes
to allow LPR spouses and parents, in
addition to currently eligible U.S.
citizen spouses and parents, to serve as
qualifying relatives for the provisional
waiver’s extreme hardship
determination. This change may allow
some immediate relatives of U.S.
citizens (included in Table 5’s
inadmissible immediate relative
estimates) to now qualify for a
provisional waiver, although the exact
number of individuals who would
benefit from this change is unknown
due to data limitations.
Based on USCIS and DOS efficiencies
realized as a result of the current
provisional waiver process, DHS
believes that this rule could provide
additional Federal Government
efficiencies through its expansion to a
larger population of aliens. As
previously described in the 2013 rule,
the provisional waiver process allows
USCIS to communicate to DOS the
status of an unlawful presence
inadmissibility waiver prior to a waiver
applicant’s immigrant visa interview
abroad. Such early communication
eliminates the current need for USCIS
and DOS to transfer cases repeatedly
between the two agencies when
adjudicating an immigrant visa
application and Form I–601 waiver
application.50 Through the provisional
waiver process, DOS receives advance
notification from USCIS of the
discretionary decision to provisionally
waive the unlawful presence
inadmissibility bar, which allows for
better allocation of valuable agency
49 There is a statutory maximum of only 55,000
diversity visas authorized for allocation each fiscal
year, but this number is reduced by up to 5,000
visas set aside exclusively for use under the
Nicaraguan and Central American Relief Act. See
NACARA section 203(d), as amended. DOS
regularly selects more than 50,000 entrants to
proceed on to the next step for diversity visa
processing to ensure that all of the 50,000 diversity
visas are allotted. Source: U.S. Department of State,
Office of the Spokesman. Special Briefing: Senior
State Department Official on the Diversity Visa
Program. May 13, 2011, available at https://
www.state.gov/r/pa/prs/ps/2011/05/166811.htm.
50 See 78 FR 536 (Jan. 3, 2013).
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resources like time, storage space, and
human capital.
DHS welcomes any public comments
on the benefits of this proposed rule.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980
(RFA), 5 U.S.C. 601–612, as amended by
the Small Business Regulatory
Enforcement Fairness Act of 1996,
Public Law 104–121 (Mar. 29, 1996),
requires Federal agencies to consider
the potential impact of regulations on
small businesses, small governmental
jurisdictions, and small organizations
during the development of their rules.
The term ‘‘small entities’’ comprises
small businesses, not-for-profit
organizations that are independently
owned and operated and are not
dominant in their fields, and
governmental jurisdictions with
populations of less than 50,000. DHS
has reviewed this regulation in
accordance with the Regulatory
Flexibility Act and certifies that this
rule would not have a significant
economic impact on a substantial
number of small entities. The factual
basis for this determination is that this
rule directly regulates individuals, who
are not, for purposes of the Regulatory
Flexibility Act, within the definition of
small entities established by 5 U.S.C.
601(6).
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E. Executive Order 13132
This proposed rule would not have
substantial direct effects on the States,
on the relationship between the
National Government and the States, or
on the distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with section 6 of Executive
Order 13132, it is determined that this
rule does not have sufficient federalism
implications to warrant the preparation
of a federalism summary impact
statement.
F. Executive Order 12988 Civil Justice
Reform
Section 3(c) of Executive Order 12988
requires Executive agencies to review
regulations in light of applicable
standards in section 3(a) and section
3(b) to determine whether they are met
or it is unreasonable to meet one or
more of them. DHS has completed the
required review and determined that, to
the extent permitted by law, this rule
meets the relevant standards of
Executive Order 12988.
G. Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995, Public Law 104–13,
Departments are required to submit to
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the Office of Management and Budget
(OMB), for review and approval, any
reporting requirements inherent in a
rule. This rule proposes a revision to the
Application for a Provisional Unlawful
Presence Waiver, Form I–601A, OMB
Control Number 1615–0123. USCIS
estimates that approximately 10,258
new respondents would file
applications for provisional waivers as a
result of the changes proposed by this
rule.
DHS is requesting comments on the
revisions it is proposing to make to this
information collection until September
21, 2015.
In accordance with the Paperwork
Reduction Act (PRA) of 1995, the
information collection notice is
published in the Federal Register to
obtain comments regarding the nature of
the information collection, the
categories of respondents, the estimated
burden (i.e., the time, effort, and
resources used by the respondents to
respond), the estimated cost to the
respondent, and the actual information
collection instruments. When
submitting comments on this
information collection, your comments
should address one or more of the
following four points:
(1) Evaluate whether the proposed
collection of information is necessary
for the proper performance of the
functions of the agency, including
whether the information will have
practical utility;
(2) Evaluate the accuracy of the
agency’s estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and
clarity of the information to be
collected; and
(4) Minimize the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology,
e.g., permitting electronic submission of
responses.
Overview of This Information
Collection
(1) Type of Information Collection:
Revision of a Currently Approved
Collection.
(2) Title of the Form/Collection:
Application for Provisional Unlawful
Presence Waiver.
(3) Agency form number, if any, and
the applicable component of the DHS
sponsoring the collection: I–601A;
USCIS.
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(4) Affected public who will be asked
or required to respond, as well as a brief
abstract: Primary: Individuals or
households: Individuals who: (a) Are
immigrant visa applicants, including:
(1) Immediate relatives of U.S. citizens,
(2) aliens seeking to immigrate under a
family-sponsored, employment-based,
or special immigrant visa category, and
(3) Diversity Visa selectees and
derivatives, and (b) are applying from
within the United States for a
provisional waiver under INA section
212(a)(9)(B)(v) before obtaining an
immigrant visa abroad.
(5) An estimate of the total number of
respondents and the amount of time
estimated for an average respondent to
respond: The estimated total number of
respondents for the information
collection I–601A is 52,965 and the
estimated hour burden per response is
1.5 hours; and 52,965 respondents
providing biometrics at 1.17 hours.
(6) An estimate of the total public
burden (in hours) associated with the
collection: The total estimated annual
hour burden associated with this
collection is 141,417 hours.
(7) An estimate of the total public
burden (in cost) associated with the
collection: The estimated total annual
cost burden associated with this
collection of information is $1,497,601.
List of Subjects
8 CFR Part 103
Administrative practice and
procedure, Authority delegations
(Government agencies), Freedom of
information, Privacy, Reporting and
recordkeeping requirements, Surety
bonds.
8 CFR Part 212
Administrative practice and
procedure, Aliens, Immigration,
Passports and visas, Reporting and
recordkeeping requirements.
Accordingly, DHS proposes to amend
chapter I of title 8 of the Code of Federal
Regulations as follows:
PART 103—IMMIGRATION BENEFITS;
BIOMETRIC REQUIREMENTS;
AVAILABILITY OF RECORDS
1. The authority citation for part 103
continues to read as follows:
■
Authority: 5 U.S.C. 301, 552, 552a; 8
U.S.C. 1101, 1103, 1304, 1356; 31 U.S.C.
9701; Pub. L. 107–296, 116 Stat. 2135; 6
U.S.C. 1 et seq.; E.O. 12356, 47 FR 14874,
15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part
2; Pub. L. 112–54.
§ 103.2
■
[Amended]
2. Section 103.2 is amended by:
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a. In paragraphs (a)(2) and (3) and
(b)(6) and (10) by removing ‘‘an benefit
request’’ and adding in its place ‘‘a
benefit request’’, wherever it appears;
and
■ b. In paragraph (b)(12) by removing
‘‘An benefit request’’ and adding in its
place ‘‘A benefit request’’, wherever it
appears.
■
PART 212—DOCUMENTARY
REQUIREMENTS; NONIMMIGRANTS;
WAIVERS; ADMISSION OF CERTAIN
INADMISSIBLE ALIENS; PAROLE
3. The authority citation for part 212
continues to read as follows:
■
Authority: 8 U.S.C. 1101 and note, 1102,
1103, 1182 and note, 1184, 1187, 1223, 1225,
1226, 1227, 1255, 1359; 8 U.S.C. 1185 note
(section 7209 of Pub. L. 108–458); 8 CFR part
2. Section 212.1(q) also issued under section
702, Public Law 110–229, 122 Stat. 754, 854.
4. Amend § 212.7 by:
a. Removing the heading for
paragraph (a);
■ b. Revising paragraphs (e) heading
and introductory text and (e)(3)(i), (ii),
(iii), (iv), (v), and (vi);
■ c. Remove paragraph (e)(3)(vii); and
■ d. Revising paragraphs (e)(4)(iii), (iv),
(v), and (vi), (e)(5)(i), (e)(5)(ii)(E), (F),
and (G), (e)(6)(ii), (e)(7), (8), (9), and
(10), (e)(12)(i)(C), (e)(12)(ii), and
(e)(14)(i), (iii), and (iv).
The revisions read as follows:
■
■
§ 212.7 Waivers of certain grounds of
inadmissibility.
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*
*
*
*
*
(e) Provisional unlawful presence
waivers of inadmissibility. The
provisions of this paragraph (e) apply to
certain aliens who are pursuing
consular immigrant visa processing.
*
*
*
*
*
(3) * * *
(i) Is present in the United States at
the time of filing the application for a
provisional unlawful presence waiver;
(ii) Provides biometrics to USCIS at a
location in the United States designated
by USCIS;
(iii) Upon departure, would be
inadmissible only under section
212(a)(9)(B)(i) of the Act at the time of
the immigrant visa interview;
(iv) Has a case pending with the
Department of State, based on:
(A) An approved immigrant visa
petition, for which the Department of
State immigrant visa processing fee has
been paid; or
(B) Selection by the Department of
State to participate in the Diversity Visa
Program under section 203(c) of the Act
for the fiscal year for which the alien
registered;
(v) Will depart from the United States
to obtain the immigrant visa; and
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(vi) Meets the requirements for a
waiver provided in section
212(a)(9)(B)(v) of the Act.
(4) * * *
(iii) The alien does not have a case
pending with the Department of State,
based on:
(A) An approved immigrant visa
petition, for which the Department of
State immigrant visa processing fee has
been paid; or
(B) Selection by the Department of
State to participate in the Diversity Visa
program under section 203(c) of the Act
for the fiscal year for which the alien
registered;
(iv) The Department of State initially
acted to schedule the immigrant visa
interview:
(A) Before January 3, 2013, for an
immediate relative of a U.S. citizen with
an approved immediate relative petition
on which a provisional unlawful
presence waiver is based, even if the
interview was cancelled or rescheduled
on or after January 3, 2013; or
(B) For all other immigrant visa
applicants, before [EFFECTIVE DATE
OF FINAL RULE], for the approved
immigrant visa petition or the Diversity
Visa program application on which a
provisional unlawful presence waiver is
based, even if the interview was
cancelled or rescheduled on or after
[EFFECTIVE DATE OF FINAL RULE];
(v) The alien is in removal
proceedings, unless the removal
proceedings are administratively closed
and have not been recalendared at the
time of filing the application for a
provisional unlawful presence waiver;
(vi) The alien is subject to a final
order of removal issued under section
217, 235, 238, or 240 of the Act or a
final order of exclusion or deportation
under former section 236 or 242 of the
Act (pre-April 1, 1997), or any other
provision of law (including an in
absentia removal order under section
240(b)(5) of the Act);
*
*
*
*
*
(5) Filing. (i) An application for a
provisional unlawful presence waiver of
the unlawful presence inadmissibility
bars under section 212(a)(9)(B)(i)(I) or
(II) of the Act, including an application
by an alien in removal proceedings that
are administratively closed and have not
been recalendared at the time of filing
the application for a provisional
unlawful presence waiver, must be filed
in accordance with 8 CFR part 103 and
on the form designated by USCIS. The
prescribed fee under 8 CFR 103.7(b)(1)
and supporting documentation must be
submitted in accordance with the form
instructions.
(ii) * * *
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(E) Does not include evidence of:
(1) An approved immigrant visa
petition;
(2) Selection by the Department of
State to participate in the Diversity Visa
Program under section 203(c) of the Act
for the fiscal year for which the alien
registered; or
(3) Eligibility as a derivative
beneficiary of an approved immigrant
visa petition or of an alien selected for
participation in the Diversity Visa
Program as provided in this section and
outlined in section 203(d) of the Act.
(F) Fails to include documentation
evidencing:
(1) That the alien has paid the
immigrant visa processing fee to the
Department of State for the immigrant
visa application upon which the alien’s
approved immigrant visa petition is
based; or
(2) In the case of a Diversity
immigrant, that the Department of State
selected the alien to participate in the
Diversity Visa Program for the fiscal
year for which the alien registered; or
(G) Has indicated on a provisional
unlawful presence waiver application
that the Department of State initially
acted to schedule the immigrant visa
interview:
(1) Before January 3, 2013, for an
immediate relative of a U.S. citizen with
an approved immediate relative petition
on which a provisional unlawful
presence waiver is based, even if the
interview was cancelled or rescheduled
on or after January 3, 2013; or
(2) For all other immigrant visa
applicants, before [EFFECTIVE DATE
OF FINAL RULE], for the approved
immigrant visa petition or the Diversity
Visa Program application upon which a
provisional unlawful presence waiver is
based, even if the interview was
cancelled or rescheduled on or after
[EFFECTIVE DATE OF FINAL RULE].
(6) * * *
(ii) Failure to appear for biometric
services. If an alien fails to appear for a
biometric services appointment or fails
to provide biometrics in the United
States as directed by USCIS, a
provisional unlawful presence waiver
application will be considered
abandoned and denied under 8 CFR
103.2(b)(13). The alien may not appeal
or file a motion to reopen or reconsider
an abandonment denial under 8 CFR
103.5.
(7) Burden and standard of proof. The
alien has the burden to establish, by a
preponderance of the evidence,
eligibility for a provisional unlawful
presence waiver as described in this
paragraph, and under section
212(a)(9)(B)(v) of the Act, including that
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Federal Register / Vol. 80, No. 140 / Wednesday, July 22, 2015 / Proposed Rules
the alien merits a favorable exercise of
discretion.
(8) Adjudication. USCIS will
adjudicate a provisional unlawful
presence waiver application in
accordance with this paragraph and
section 212(a)(9)(B)(v) of the Act. If
USCIS finds that the alien is not eligible
for a provisional unlawful presence
waiver, or if USCIS determines in its
discretion that a waiver is not
warranted, USCIS will deny the waiver
application. Notwithstanding 8 CFR
103.2(b)(16), USCIS may deny an
application for a provisional unlawful
presence waiver without prior issuance
of a request for evidence or notice of
intent to deny.
(9) Notice of decision. USCIS will
notify the alien and the alien’s attorney
of record or accredited representative of
the decision in accordance with 8 CFR
103.2(b)(19). USCIS may notify the
Department of State of the denial of an
application for a provisional unlawful
presence waiver. A denial is without
prejudice to the alien’s filing another
provisional unlawful presence waiver
application under this paragraph (e),
provided the alien meets all of the
requirements in this part, including that
the alien’s case must be pending with
the Department of State. An alien also
may elect to file a waiver application
under paragraph (a)(1) of this section
after departing the United States,
appearing for his or her immigrant visa
interview at the U.S. Embassy or
consulate abroad, and after the
Department of State determines the
alien’s admissibility and eligibility for
an immigrant visa. Accordingly, denial
of an application for a provisional
unlawful presence waiver is not a final
agency action for purposes of section
10(c) of the Administrative Procedure
Act, 5 U.S.C. 704.
(10) Withdrawal of waiver
applications. An alien may withdraw
his or her application for a provisional
unlawful presence waiver at any time
before USCIS makes a final decision.
Once the case is withdrawn, USCIS will
close the case and notify the alien and
his or her attorney or accredited
representative. The alien may file a new
application for a provisional unlawful
presence waiver, in accordance with the
form instructions and required fees,
provided that the alien meets all of the
requirements included in this paragraph
(e).
*
*
*
*
*
(12) * * *
(i) * * *
(C) Is determined to be otherwise
eligible for an immigrant visa by the
Department of State in light of the
VerDate Sep<11>2014
15:08 Jul 21, 2015
Jkt 235001
approved provisional unlawful presence
waiver.
(ii) Waives the alien’s inadmissibility
under section 212(a)(9)(B) of the Act
only for purposes of the application for
an immigrant visa and admission to the
United States as an immigrant based on
the approved immigrant visa petition
upon which a provisional unlawful
presence waiver application is based or
selection by the Department of State to
participate in the Diversity Visa
Program under section 203(c) of the Act
for the fiscal year for which the alien
registered, with such selection being the
basis for the alien’s provisional
unlawful presence waiver application;
*
*
*
*
*
(14) * * *
(i) The Department of State
determines at the time of the immigrant
visa interview that the alien is ineligible
to receive an immigrant visa for any
reason other than under section
212(a)(9)(B)(i)(I) or (II) of the Act;
*
*
*
*
*
(iii) The immigrant visa registration is
terminated in accordance with section
203(g) of the Act, and has not been
reinstated in accordance with section
203(g) of the Act; or
(iv) The alien, at any time before or
after approval of a provisional unlawful
presence waiver or before an immigrant
visa is issued, reenters or attempts to
reenter the United States without being
inspected and admitted or paroled.
Jeh Charles Johnson,
Secretary.
[FR Doc. 2015–17794 Filed 7–21–15; 8:45 am]
BILLING CODE 9111–97–P
DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
18 CFR Part 40
[Docket No. RM15–14–000]
Revised Critical Infrastructure
Protection Reliability Standards
Federal Energy Regulatory
Commission, Energy.
ACTION: Notice of proposed rulemaking.
AGENCY:
The Federal Energy
Regulatory Commission (Commission)
proposes to approve seven critical
infrastructure protection (CIP)
Reliability Standards: CIP–003–6
(Security Management Controls), CIP–
004–6 (Personnel and Training), CIP–
006–6 (Physical Security of BES Cyber
Systems), CIP–007–6 (Systems Security
Management), CIP–009–6 (Recovery
SUMMARY:
PO 00000
Frm 00017
Fmt 4702
Sfmt 4702
Plans for BES Cyber Systems), CIP–010–
2 (Configuration Change Management
and Vulnerability Assessments), and
CIP–011–2 (Information Protection). The
North American Electric Reliability
Corporation (NERC) submitted the
proposed Reliability Standards in
response to the Commission’s Order No.
791. The proposed Reliability Standards
address the cyber security of the bulk
electric system and improve upon the
current Commission-approved CIP
Reliability Standards. In addition, the
Commission proposes to direct NERC to
develop certain modifications to
Reliability Standard CIP–006–6 and to
develop requirements addressing supply
chain management.
DATES: Comments are due September
21, 2015.
ADDRESSES: Comments, identified by
docket number, may be filed in the
following ways:
• Electronic Filing through https://
www.ferc.gov. Documents created
electronically using word processing
software should be filed in native
applications or print-to-PDF format and
not in a scanned format.
• Mail/Hand Delivery: Those unable
to file electronically may mail or handdeliver comments to: Federal Energy
Regulatory Commission, Secretary of the
Commission, 888 First Street NE.,
Washington, DC 20426.
Instructions: For detailed instructions
on submitting comments and additional
information on the rulemaking process,
see the Comment Procedures Section of
this document.
FOR FURTHER INFORMATION CONTACT:
Daniel Phillips (Technical Information),
Office of Electric Reliability, Federal
Energy Regulatory Commission, 888
First Street NE., Washington, DC
20426, (202) 502–6387,
daniel.phillips@ferc.gov.
Kevin Ryan (Legal Information), Office
of the General Counsel, Federal
Energy Regulatory Commission, 888
First Street NE., Washington, DC
20426, (202) 502–6840 kevin.ryan@
ferc.gov.
SUPPLEMENTARY INFORMATION:
1. Pursuant to section 215 of the
Federal Power Act (FPA),1 the
Commission proposes to approve seven
critical infrastructure protection (CIP)
Reliability Standards: CIP–003–6
(Security Management Controls), CIP–
004–6 (Personnel and Training), CIP–
006–6 (Physical Security of BES Cyber
Systems), CIP–007–6 (Systems Security
Management), CIP–009–6 (Recovery
Plans for BES Cyber Systems), CIP–010–
2 (Configuration Change Management
1 16
E:\FR\FM\22JYP1.SGM
U.S.C. 824o.
22JYP1
]]>Agencies
[Federal Register Volume 80, Number 140 (Wednesday, July 22, 2015)]
[Proposed Rules]
[Pages 43338-43354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-17794]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 80, No. 140 / Wednesday, July 22, 2015 /
Proposed Rules
[[Page 43338]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 103 and 212
[CIS No. 2557-14; DHS Docket No. USCIS-2012-0003]
RIN 1615-AC03
Expansion of Provisional Unlawful Presence Waivers of
Inadmissibility
AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Homeland Security (DHS) proposes to expand
eligibility for provisional waivers of certain grounds of
inadmissibility based on the accrual of unlawful presence to all aliens
who are statutorily eligible for a waiver of such grounds, are seeking
such a waiver in connection with an immigrant visa application, and
meet other conditions. The provisional waiver process currently allows
certain aliens who are present in the United States to request from
U.S. Citizenship and Immigration Services (USCIS) a provisional waiver
of certain unlawful presence grounds of inadmissibility prior to
departing from the United States for consular processing of their
immigrant visas--rather than applying for a waiver abroad after the
immigrant visa interview using the Form I-601, Waiver of Grounds of
Inadmissibility (hereinafter ``Form I-601 waiver process''). DHS
proposes to expand its current provisional waiver process in two
principal ways. First, DHS would eliminate current limitations on the
provisional waiver process that restrict eligibility to certain
immediate relatives of U.S. citizens. Under this proposed rule, the
provisional waiver process would be made available to all aliens who
are statutorily eligible for waivers of inadmissibility based on
unlawful presence and meet certain other conditions. Second, in
relation to the statutory requirement that the waiver applicant
demonstrate that denial of the waiver would result in ``extreme
hardship'' to certain family members, DHS proposes to expand the
provisional waiver process by eliminating the current restriction that
limits extreme hardship determinations only to aliens who can establish
extreme hardship to U.S. citizen spouses or parents. Under this
proposed rule, an applicant for a provisional waiver would be permitted
to establish the eligibility requirement of showing extreme hardship to
any qualifying relative (namely, U.S. citizen or lawful permanent
resident spouses or parents). DHS is proposing to expand the
provisional waiver process in the interests of encouraging eligible
aliens to complete the visa process abroad, promoting family unity, and
improving administrative efficiency.
DATES: Submit written comments on or before September 21, 2015.
Comments on the information collection revisions in this rule, as
described in the Paperwork Reduction Act section, will also be accepted
until September 21, 2015.
ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2012-0003, by one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow this site's instructions for submitting comments.
Email: You may email comments directly to USCIS at
uscisfrcomment@dhs.gov. Include DHS Docket No. USCIS-2012-0003 in the
subject line of the message.
Mail: Laura Dawkins, Chief, Regulatory Coordination
Division, Office of Policy and Strategy, U.S. Citizenship and
Immigration Services, Department of Homeland Security, 20 Massachusetts
Avenue NW., Washington, DC 20529-2020. To ensure proper handling,
please reference DHS Docket No. USCIS-2012-0003 on your correspondence.
This mailing address may be used for paper, disk, or CD-ROM
submissions.
Hand Delivery/Courier: Laura Dawkins, Chief, Regulatory
Coordination Division, Office of Policy and Strategy, U.S. Citizenship
and Immigration Services, Department of Homeland Security, 20
Massachusetts Avenue NW., Washington, DC 20529-2020. Contact Telephone
Number is (202) 272-8377.
FOR FURTHER INFORMATION CONTACT: Roselyn Brown-Frei, Office of Policy
and Strategy, Residence and Naturalization Division, U.S. Citizenship
and Immigration Services, Department of Homeland Security, 20
Massachusetts Avenue NW., Washington, DC 20529-2099, Telephone (202)
272-1470 (this is not a toll free number).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Public Participation
III. Background
A. Legal Authority
B. Immigrant Visa Categories
1. Immediate Relatives, Family-Sponsored Immigrants, Employment-
Based Immigrants, and Certain Special Immigrants
2. Diversity Visa Program
C. Grounds of Inadmissibility
D. Unlawful Presence
E. Form I-601 Waiver Process
1. Form I-601 Waiver Process for Immigrant Visa Applicants
Abroad
2. Difficulties With the Form I-601 Waiver Process
F. Provisional Waiver Process
1. Creation of Provisional Waiver
2. Impact of Provisional Waiver Process
IV. Proposed Changes
A. Immediate Relative, Family-Sponsored, Employment-Based, and
Certain Special Immigrants
B. Diversity Immigrants
C. Qualifying Relatives
D. Aliens With Scheduled Immigrant Visa Interviews
E. Miscellaneous Changes
F. Benefits of the Proposed Changes
V. Public Input
VI. Statutory and Regulatory Requirements
A. Unfunded Mandates Reform Act of 1995
B. Small Business Regulatory Enforcement Fairness Act of 1996
C. Executive Orders 12866 and 13563
1. Summary
2. Background
3. Purpose of Rule
4. Current Provisional Unlawful Presence Waiver Program
5. Population Affected by This Rule
6. Costs and Benefits
D. Regulatory Flexibility Act
E. Executive Order 13132
F. Executive Order 12988 Civil Justice Reform
G. Paperwork Reduction Act
II. Public Participation
DHS invites all interested parties to submit written data, views,
or arguments on all aspects of this proposed rule. DHS also invites
comments about how the proposed rule might affect the economy,
environment,
[[Page 43339]]
or federalism. The most helpful comments will:
(1) Refer to a specific portion of this proposed rule;
(2) Explain the reason for any recommended change; and
(3) Include data, information, or references to authority that
support the recommended change.
Instructions: All submissions must include the agency name and DHS
Docket No. USCIS-2012-0003 assigned to this rulemaking. Regardless of
the method you used to submit comments or material, all submissions
will be posted, without change, to the Federal eRulemaking Portal at
https://www.regulations.gov, and will include any personal information
you provide. Your entire submission will be available for the public to
view. Therefore, you may wish to consider limiting the amount of
personal information that you provide. DHS may withhold information
provided in comments from public viewing that it determines may impact
the privacy of an individual or is deemed to be inappropriate or
offensive. For additional information, please read the Privacy Act
notice that is available on the link in the footer of https://www.regulations.gov.
Docket: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov and enter this
proposed rule's DHS Docket No. USCIS-2012-0003.
III. Background
A. Legal Authority
Section 102 of the Homeland Security Act of 2002 (Public Law 107-
296, 116 Stat. 2135), 6 U.S.C. 112, and section 103 of the Immigration
and Nationality Act (INA), 8 U.S.C. 1103, charge the Secretary of
Homeland Security (Secretary) with the administration and enforcement
of the immigration and naturalization laws of the United States. The
Secretary proposes the changes in this rule under the broad authority
to administer the authorities provided under the Homeland Security Act
of 2002, the immigration and nationality laws, and other delegated
authorities. The Secretary's discretionary authority to waive the
unlawful presence grounds of inadmissibility is provided in INA section
212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v). See also Homeland Security
Act of 2002, sec. 451(b), 6 U.S.C. 271(b) (transferring to the Director
of USCIS the immigration benefits adjudication functions of the
Commissioner of the former Immigration and Naturalization Service).
B. Immigrant Visa Categories
U.S. immigration laws provide avenues for U.S. citizens, LPRs, and
U.S. employers to bring their families or employees permanently to the
United States. Certain other categories of aliens are eligible for
immigrant visas through special processes. See, e.g., INA section
201(b), 8 U.S.C. 1151(b) (describing aliens who are not subject to
numerical limitations on immigration levels); INA section 203(a)-(d); 8
U.S.C. 1153(a)-(d) (providing for the allocation of immigrant visas to
family-sponsored immigrants, employment-based immigrants, certain
special immigrants, and diversity immigrants, as well as the derivative
spouses and children of such immigrants).
1. Immediate Relatives, Family-Sponsored Immigrants, Employment-Based
Immigrants, and Certain Special Immigrants
Generally, if a U.S. citizen or LPR seeks to sponsor a relative for
lawful permanent residence in the United States, the U.S. citizen or
LPR must first file an immigrant visa petition for the relative with
USCIS.\1\ See INA sections 201(b)(2)(A)(i), 203(a), 204; 8 U.S.C.
1151(b)(2)(A)(i), 1153(a), 1154; 8 CFR part 204. The same is generally
true with respect to a U.S. employer that wishes to petition on behalf
of a noncitizen worker. See INA sections 203(b), 204; 8 U.S.C. 1153(b),
1154; 8 CFR part 204. Certain other categories of immigrants, such as
``special immigrants,'' are eligible for permanent residence through
special processes. See INA sections 101(a)(27), 203(b)(4),
204(a)(1)(I); 8 U.S.C. 1101(a)(27), 1153(b)(4), 1154(a)(1)(I); 8 CFR
part 204; 22 CFR 42.32(d).
---------------------------------------------------------------------------
\1\ Certain immediate relatives (e.g., widows or widowers of
U.S. citizens and their children) and special immigrants can self-
petition for classification as an immediate relative of a U.S.
citizen by filing a Form I-360, Petition for Amerasian, Widow(er) or
Special Immigrant. Similarly, certain employment-based categories
(e.g., aliens with extraordinary ability) allow an alien to self-
petition for classification as an employment-based immigrant. See
INA sections 201 and 203(b)(1)(A) & (2)(B); 8 U.S.C. 1151,
1153(b)(1)(A) & (2)(B); 8 CFR 204.5(h) and (k)(4)(ii).
---------------------------------------------------------------------------
The purpose of the immigrant visa petition is to classify the alien
as an intending immigrant who is either an immediate relative of a U.S.
citizen (i.e., the spouse, parent, or unmarried child of a U.S.
citizen) or an alien described under the family-sponsored preference,
employment-based preference, or special immigrant categories. Except
with respect to immediate relatives of U.S. citizens, immigrant visa
petitions may also serve to classify derivatives (i.e., spouses and
unmarried children) of principal beneficiaries as immigrants. See INA
203(d); 8 U.S.C. 1153(d). USCIS determines, among other things, whether
an alien has the necessary familial relationship to the U.S. citizen or
the LPR, has the necessary professional qualifications or skills and
expertise for the position offered by the U.S. employer, or meets the
requirements for the specific special immigrant category, before
approving an immigrant visa petition. Approval of an immigrant visa
petition does not give the beneficiary any lawful immigration status in
the United States. If the beneficiary is without lawful status when the
immigrant visa petition is filed, the beneficiary remains without such
status even after it is approved. Once approved, the relative,
employee, or special immigrant who is the beneficiary of the approved
immigrant visa petition may seek to adjust status to lawful permanent
residence in the United States or obtain an immigrant visa abroad at a
U.S. embassy or consulate, if eligible. See INA section 204, 8 U.S.C.
1154; see also 8 CFR part 204.
Many aliens present in the United States who are the beneficiaries
of approved immigrant visa petitions are eligible to adjust to LPR
status while remaining in the United States. See, e.g., INA section
245, 8 U.S.C. 1255; 8 CFR part 245. Other aliens, however, are
ineligible to adjust status in the United States. For example, aliens
who entered the United States without inspection and admission or
parole, or who are not in a lawful immigration status, are generally
ineligible to adjust status in the United States. See INA section
245(a), (c); 8 U.S.C. 1255(a), (c); see also 8 CFR 245.1(b)-(c)
(describing aliens who are ineligible to apply for adjustment of status
or who are restricted from applying unless they meet certain
conditions). An alien who is unable to adjust status in the United
States must obtain an immigrant visa at a U.S. Embassy or consulate
abroad before he or she can be lawfully admitted to the United States
as an immigrant. An alien who is eligible to apply for adjustment of
status to lawful permanent residence in the United States can also
choose to apply for an immigrant visa and obtain that visa at a U.S.
embassy or consulate abroad through consular processing.
If an alien seeks an immigrant visa abroad through consular
processing, USCIS forwards the approved immigrant visa petition to the
DOS National Visa Center (NVC), which completes initial processing of
petition-based immigrant visa applications. The NVC notifies the alien
when he or she
[[Page 43340]]
can start the immigrant visa process and will request, among other
things, that the alien pay the immigrant visa processing fee and submit
the necessary documents. After receiving the fee and necessary
documents, the NVC schedules the alien for an immigrant visa interview
with a DOS consular officer at a U.S. Embassy or consulate abroad.
During the interview, the DOS consular officer determines whether the
alien is admissible to the United States and eligible for an immigrant
visa.
2. Diversity Visa Program
An alien may also immigrate to the United States through the
Diversity Visa program administered by DOS. See INA section 203(c), 8
U.S.C. 1153(c); 22 CFR 42.33. Under the Diversity Visa program, up to
55,000 immigrant visas and adjustment of status applications can be
approved annually for aliens who are from countries with low
immigration rates to the United States.\2\ See INA section 201(e), 8
U.S.C. 1151(e). An alien seeking to immigrate as a diversity immigrant
submits an entry with the Diversity Visa program during the designated
registration period. After the registration period closes, DOS randomly
selects aliens from the pool of registrants to continue the Diversity
Visa process. Being selected to participate in the Diversity Visa
program does not afford the selectee any lawful immigration status.
---------------------------------------------------------------------------
\2\ INA section 203(c) authorizes up to 55,000 immigrant visas
each fiscal year for aliens from countries with low admissions
during the previous five years. However, this number is reduced by
up to 5,000 for applicants seeking adjustment of status under the
Nicaraguan Adjustment and Central American Relief Act (NACARA), Pub.
L. 105-100, title II, secs. 201-204, 111 Stat. 2160, 2193-201 (Nov.
19, 1997), amended by Pub. L. 105-139, 111 Stat. 2644 (Dec. 2, 1997)
(8 U.S.C. 1255 note).
---------------------------------------------------------------------------
If selected and eligible, an alien may be authorized to seek LPR
status either through adjustment of status in the United States or
through consular processing abroad with DOS. If the alien chooses to
use the consular process, he or she must submit an immigrant visa
application (Form DS-260, Immigrant Visa Electronic Application) to the
DOS Kentucky Consular Center (KCC), which completes initial processing
of the immigrant visa applications from Diversity Visa program
selectees and derivatives. If the immigrant visa application is
complete and an immigrant visa is available, the KCC schedules the
alien for an immigrant visa interview abroad. The DOS consular officer
determines whether the alien is admissible to the United States and
eligible for the immigrant visa. A program selectee or derivative (such
as the spouse or minor child of a program selectee), however, can
obtain an immigrant visa only in the fiscal year for which he or she
was selected, provided the numerical limits have not been reached. See
22 CFR 42.33(c)-(f).
Diversity Visa program processing is different from the petition-
based immigrant visa process, as Diversity Visa program selectees and
their derivatives are not beneficiaries of approved immigrant visa
petitions. DOS completes initial processing of program selectees and
derivatives at the KCC instead of at the NVC. The Diversity Visa
program pre-processing steps aim to ensure that DOS can issue as many
visas to program selectees and derivatives as possible during the
particular fiscal year. For example, Diversity Visa program selectees
and their derivatives submit their immigrant visa applications to the
KCC without the additional documents required for immigrant visa
processing. Program selectees and derivatives submit the additional
required documents to the DOS consular officer as part of the immigrant
visa interview and process. In addition, unlike immediate-relative,
family-sponsored, employment-based, and special-immigrant visa
applicants, Diversity Visa program selectees and their derivatives pay
their immigrant visa processing fees at their immigrant visa interviews
rather than before DOS schedules the interviews.
C. Grounds of Inadmissibility
U.S. immigration laws specify acts, conditions, and conduct that
bar aliens from being admitted to the United States or from obtaining
visas, including immigrant visas. See INA section 212(a), 8 U.S.C.
1182(a) (listing the grounds of inadmissibility). The Secretary has the
discretion to waive certain inadmissibility grounds if an alien applies
for a waiver and meets the relevant statutory and regulatory
requirements. See, e.g., INA section 212(a)(9)(B)(v), 8 U.S.C.
1182(a)(9)(B)(v); 8 CFR 212.7. If the Secretary grants a waiver of
inadmissibility, the waived inadmissibility ground no longer bars the
alien's admission, readmission, or immigrant visa eligibility. See 8
CFR 212.7(a)(4).
D. Unlawful Presence
The inadmissibility ground based on the accrual of unlawful
presence in the United States is found at INA section 212(a)(9)(B)(i),
8 U.S.C. 1182(a)(9)(B)(i). Under that provision, an alien who was
unlawfully present in the United States for more than 180 days but less
than one year and who then departs voluntarily from the United States
before removal proceedings begin is inadmissible to the United States
for 3 years from the date of departure. See INA section
212(a)(9)(B)(i)(I), 8 U.S.C. 1182(a)(9)(B)(i)(I). An alien who was
unlawfully present in the United States for one year or more and who
then departs the United States before, during, or after removal
proceedings is inadmissible for 10 years from the date of departure.
See INA section 212(a)(9)(B)(i)(II), 8 U.S.C. 1182(a)(9)(B)(i)(II).
These 3- and 10-year unlawful presence bars do not take effect
unless and until the alien departs from the United States.\3\ See,
e.g., Matter of Rodarte-Roman, 23 I. & N. Dec. 905 (BIA 2006); 22 CFR
40.92(a)-(b). Once the 3- or 10-year unlawful presence bar is
triggered, the alien must apply for and be granted a waiver of
inadmissibility before he or she can be issued an immigrant visa and be
admitted to the United States for permanent residence. The Secretary
has the discretion to waive the 3- and 10-year unlawful presence bars
for an alien seeking admission to the United States as an immigrant, if
he or she demonstrates that the refusal of his or her admission to the
United States would cause extreme hardship to the alien's U.S. citizen
or LPR spouse or parent. See INA section 212(a)(9)(B)(v), 8 U.S.C.
1182(a)(9)(B)(v).
---------------------------------------------------------------------------
\3\ By statute, certain aliens do not accrue unlawful presence
for purposes of INA section 212(a)(9)(B)(i), 8 U.S.C.
1182(a)(9)(B)(i). For example, aliens under the age of 18 do not
accrue unlawful presence. See INA section 212(a)(9)(B)(iii)(I), 8
U.S.C. 1182(a)(9)(B)(iii)(I). Similarly, aliens with pending asylum
claims generally do not accrue unlawful presence while their asylum
applications are pending. See INA section 212(a)(9)(B)(iii)(II), 8
U.S.C. 1182(a)(9)(B)(iii)(II). See INA sections
212(a)(9)(B)(iii)(III), (IV), and (V), 8 U.S.C.
1182(a)(9)(B)(iii)(III), (IV), and (V) for additional exceptions to
the accrual of unlawful presence.
---------------------------------------------------------------------------
Because approval of the waiver is discretionary, the alien also
must establish that he or she merits a favorable exercise of
discretion. See INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v).
Accordingly, USCIS may deny a waiver application as a matter of
discretion, even if the applicant meets all of the other regulatory
requirements.
E. Form I-601 Waiver Process
1. Form I-601 Waiver Process for Immigrant Visa Applicants Abroad
The 3- and 10-year unlawful presence bars to admissibility under
INA section 212(a)(9)(B) do not apply unless and until an alien who
accrued sufficient unlawful presence departs from the United States.
Many aliens who would trigger these bars upon departure from the United
States are ineligible to adjust
[[Page 43341]]
status in the United States and must travel abroad to obtain an
immigrant visa from DOS. DOS cannot issue an immigrant visa to an
inadmissible alien unless he or she applies for, and USCIS approves, a
waiver of inadmissibility, if a waiver is authorized under the INA for
the specific ground of inadmissibility. See 22 CFR 40.6, 40.9,
40.92(c).
Under the Form I-601 waiver process, an immigrant visa applicant
may file an Application for Waiver of Grounds of Inadmissibility, Form
I-601, with USCIS after the DOS consular officer makes the
inadmissibility determination during the immigrant visa interview
abroad.\4\ Once the alien files the Form I-601 waiver application, he
or she must remain abroad while USCIS adjudicates the waiver
application. Currently, USCIS adjudicates these Form I-601 waiver
applications at the Nebraska Service Center (NSC) in the United
States.\5\
---------------------------------------------------------------------------
\4\ To be eligible for the waiver, the alien must meet all
requirements described in INA section 212(a)(9)(B)(v), including the
requirement to demonstrate that refusing the alien's admission to
the United States would result in extreme hardship to the alien's
U.S. citizen or LPR spouse or parent. This same requirement applies
to the Form I-601A provisional waiver process. The fundamental
distinction between the Form I-601 and Form I-601A processes is the
manner in which the applicant applies for the waiver.
\5\ The alien files the waiver application from abroad by
sending it to a USCIS ``lockbox'' facility in the United States. In
limited circumstances, as outlined in the Form I-601 instructions,
an alien may file a waiver application at a USCIS international
office.
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Upon approving the Form I-601 waiver application, USCIS notifies
DOS so that DOS may issue the immigrant visa if the alien is otherwise
eligible. If USCIS denies the Form I-601 waiver application, the alien
remains inadmissible and, therefore, ineligible for an immigrant visa
and is generally unable to lawfully return to the United States. If the
alien is inadmissible based on the 3- or 10-year unlawful presence bar,
he or she must remain outside of the United States for the relevant 3-
or 10-year period before he or she can reapply for an immigrant visa
without having to obtain a waiver. An alien may appeal the denial of a
Form I-601 waiver application with the USCIS Administrative Appeals
Office (AAO). Alternatively, the alien can file another Form I-601
waiver application.
2. Difficulties With the Form I-601 Waiver Process
Immigrant visa applicants typically encounter difficulties when
seeking waivers of the 3- and 10-year unlawful presence bars through
the Form I-601 waiver process abroad. After attending the immigrant
visa interview with DOS, these applicants must gather the necessary
information and supporting documents, file their Form I-601 waiver
applications with USCIS, and typically wait abroad for at least several
months for a decision on their applications based on the average
adjudication time for Form I-601 waiver applications.\6\ During this
period, the applicant must endure separation from U.S. citizen and LPR
family members in the United States. Such separation may cause some
U.S. citizens, LPRs, and their families to experience emotional and
financial hardships while the alien relative waits abroad for a
decision on his or her application. If the waiver is approved, and the
alien is otherwise eligible for the immigrant visa, the alien must then
return to DOS to pick up the immigrant visa. Due to these difficulties
and uncertainties, many alien relatives of U.S. citizens and LPRs are
reluctant to leave the United States to obtain an immigrant visa.
---------------------------------------------------------------------------
\6\ The average adjudication time of Form I-601 waivers is
currently five months based on information gathered from USCIS's
Nebraska Service Center on March 3, 2015. Updated processing times
for Form I-601 are also posted on the USCIS Web site at: https://egov.uscis.gov/cris/processTimesDisplayInit.do.
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Inefficiencies in the Form I-601 waiver process also create costs
for the Federal Government. If a DOS officer at a U.S. Embassy or
consulate determines that the applicant is inadmissible based on a
ground that can be waived, the DOS officer informs the applicant about
the option to file a waiver application with USCIS. After the
interview, DOS puts the immigrant visa process on hold while waiting
for the applicant to submit the Form I-601 waiver application and for
USCIS's decision on the waiver. If a waiver is approved, DOS must
reschedule the applicant for additional visa processing at a U.S.
Embassy or consulate, which uses valuable DOS consular officer
resources that could be used for processing other visa applications.
F. Provisional Waiver Process
1. Creation of the Provisional Waiver Process
In 2013, DHS sought to partially address the difficulties and
inefficiencies of the Form I-601 waiver process through rulemaking. DHS
published a rule establishing a provisional waiver process, which
streamlines certain aspects of the Form I-601 waiver process,
facilitates immigrant visa issuance, and promotes family unity. See 78
FR 536 (Jan. 3, 2013); see also 77 FR 19902 (Apr. 2, 2012) (proposed
rule). The goal of the provisional waiver process is to reduce the
adverse impact of the Form I-601 waiver process on families in the
United States.\7\ In particular, the current provisional waiver process
permits certain immediate relatives of U.S. citizens who are physically
present in the United States to apply for a provisional waiver of the
3- and 10-year unlawful presence bars before departing for their
immigrant visa interviews abroad. The provisional waiver is available
to only those aliens who will be inadmissible on account of the 3-year
or 10-year unlawful presence bar at the time of the immigrant visa
interview. Aliens who, at the time of the immigrant visa interview, may
be inadmissible based on another ground of inadmissibility or multiple
grounds of inadmissibility, are not eligible for provisional waivers.
USCIS's approval of a provisional waiver allows DOS to issue the
immigrant visa without the further delay associated with the Form I-601
waiver process, if the applicant is otherwise eligible. See 8 CFR
212.7(e).
---------------------------------------------------------------------------
\7\ Promoting family unity has always played a significant role
in the development of U.S. immigration laws. See, e.g., Holder v.
Martinez Gutierrez, 132 S. Ct. 2011, 2019 (2012); INS v. Errico, 385
U.S. 214, 219-20 (1966).
---------------------------------------------------------------------------
DHS initially limited eligibility for provisional waivers to
immediate relatives of U.S. citizens (spouses, parents and children
(under the age of 21) of U.S. citizens). The intention was to
prioritize the family reunification of immediate relatives of U.S.
citizens over other categories of aliens. Limiting the program also
allowed DHS to assess the initial effectiveness of a provisional waiver
process. Accordingly, DHS restricted eligibility for provisional
waivers to immediate relatives of U.S. citizens who could demonstrate
that their U.S. citizen spouses or parents would suffer extreme
hardship if the immediate relatives were refused admission to the
United States. See 78 FR at 542. Although other aliens are eligible for
waivers of the 3- and 10-year unlawful presence bars under the Form I-
601 waiver process, the provisional waiver process was not made
available to them. DHS limited eligibility to immediate relatives able
to demonstrate extreme hardship to a U.S. citizen spouse or parent. See
78 FR at 543 (describing rationale for eligibility limitations).
Immediate relatives who can show extreme hardship to only their LPR
spouses or parents, and other categories of immigrant visa applicants,
are ineligible to obtain a provisional waiver under the current
regulation.\8\
---------------------------------------------------------------------------
\8\ In the 2012 proposed rule, DHS explained that the
provisional waiver process would not be extended to non-immediate
relatives of U.S. citizens or immediate relatives who can only show
extreme hardship to their LPR spouses or parents. See 77 FR 19907.
Commenters to the proposed provisional waiver rule from April 2,
2012 objected to both limitations. See 78 FR at 542-543.
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[[Page 43342]]
2. Impact of Provisional Waiver Process
In the 2013 final rule, DHS noted that it would consider expanding
provisional waiver eligibility after DHS and DOS assessed the
effectiveness of the provisional waiver process and the operational
impact it may have on existing agency processes and resources. See 78
FR at 542-543 (citing Beach Commc'ns v. FCC, 508 U.S. 307, 316 (1993)
(observing that policymakers ``must be allowed leeway to approach a
perceived problem incrementally'')). Preliminary review of the
provisional waiver process has shown that it can reduce the time that
relatives are separated from their U.S. citizen families, reduce the
processing costs incurred by DOS and DHS, limit the number of exchanges
between DOS and DHS, and reduce the number of immigrant visa cases DOS
has to either reschedule or place on hold under the Form I-601 waiver
process. DHS initially anticipated receiving as many as 62,348
provisional waiver applications per year and allocated resources
accordingly. USCIS, however, received only about 39,000 applications in
fiscal year 2014. As a result, both DHS and DOS have determined that
there would not be a significant operational impact if DHS expanded
eligibility for provisional waivers to include other statutorily
eligible aliens who are beneficiaries of approved immigrant visa
petitions and can establish extreme hardship to their U.S. citizen or
LPR spouses or parents.
IV. Proposed Changes
DHS proposes to expand the class of aliens who may be eligible for
a provisional waiver beyond immediate relatives of U.S. citizens to
aliens in all statutorily eligible immigrant visa categories. Such
aliens include family-sponsored immigrants, employment-based
immigrants, certain special immigrants, and Diversity Visa program
selectees, together with their derivative spouses and children. See
proposed 8 CFR 212.7(e)(3)(iv). DHS also proposes to expand who may be
considered a qualifying relative for purposes of the extreme hardship
determination to include LPR spouses and parents.
This proposed expansion will permit any alien seeking an immigrant
visa who would be eligible to apply for a Form I-601 waiver of unlawful
presence abroad to now apply for a provisional waiver before leaving
the United States to attend his or her immigrant visa interview abroad.
Aliens who will become eligible for a provisional waiver, including
derivative spouses and children, would still need to meet all other
requirements of proposed 8 CFR 212.7(e) to obtain the waiver.\9\ Under
this proposed rule, any alien who meets the eligibility requirements
for a provisional waiver and who is pursuing consular processing abroad
can apply for the waiver irrespective of his or her current immigration
status in the United States.\10\
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\9\ Although derivative spouses and children apply for an
immigrant visa based on their relationship to a principal
beneficiary, the admissibility determination is made individually
for each immigrant visa applicant. See INA 212, 221(g), 291, 8
U.S.C. 1182, 1201(g), 1361; 22 CFR 40.6, 40.92. If the derivative is
inadmissible, he or she must apply for a provisional waiver and meet
the eligibility requirements independent of the principal.
\10\ As stated in the 2013 rule, an alien's current immigration
status is not relevant for purposes of seeking a provisional waiver
of an unlawful presence ground of inadmissibility. See 78 FR at 547.
No alien, including one who is in Temporary Protected Status, has
received deferred action, or is currently in a lawful nonimmigrant
status, is barred from seeking a provisional waiver as long as the
alien meets the eligibility requirements stated in the rule.
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DHS does not propose to change any eligibility requirements for a
provisional waiver other than those described in this rulemaking.
A. Immediate Relatives, Family-Sponsored Immigrants, Employment-Based
Immigrants, and Certain Special Immigrants
Under the proposed rule, an alien would be eligible for a
provisional waiver if, among other criteria, he or she has an immigrant
visa case pending with DOS based on an approved immigrant visa petition
and has paid the immigrant visa processing fee. Aliens with an approved
immigrant visa petition include: \11\
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\11\ A Refugee/Asylee Relative Petition, Form I-730, is not an
immigrant visa petition and is therefore not a basis for filing a
provisional waiver application.
---------------------------------------------------------------------------
A beneficiary of an approved Petition for Alien Relative,
Form I-130, or Petition for Amerasian, Widow(er), and Special
Immigrant, Form I-360 (classifying the alien as immigrant visa
applicant under INA section 201(b)(2), 8 U.S.C. 1151(b)(2), or INA
section 203(a) or (b), 8 U.S.C. 1153(a) or (b));
A beneficiary of an approved Immigrant Petition for Alien
Worker, Form I-140 (classifying the alien as immigrant visa applicant
under INA section 203(b), 8 U.S.C. 1153(b)); and
A spouse or child, as defined in subparagraph (A), (B),
(C), (D) or (E) of INA section 101(b)(1), 8 U.S.C. 1101(b)(1), if
accompanying or following-to-join an alien spouse or parent seeking to
immigrate under INA section 203(a) or (b), 8 U.S.C. 1153(a) or (b), or
under INA section 203(d), 8 U.S.C. 1153(d).
B. Diversity Immigrants
Under the proposed rule, an alien would also be eligible for a
provisional waiver based on selection by DOS to participate in the
Diversity Visa program under INA section 203(c), 8 U.S.C. 1153(c) for
the fiscal year for which the alien registered. Expanding the
provisional waiver process to Diversity Visa program selectees and
their derivatives requires USCIS to develop procedures that apply only
to these applicants because such applicants do not have approved
immigrant visa petitions. DOS's selection of an alien for the Diversity
Visa program is for these purposes being considered the functional
equivalent of having an approved immigrant visa petition. See proposed
8 CFR 212.7(e)(3)(iv). Additionally, Diversity Visa program processing
must be completed by the end of the fiscal year for the program year
for which the alien registered. See INA section 204(a)(1)(I)(ii)(II), 8
U.S.C. 1154(a)(1)(I)(ii)(II). To meet the time constraints of the
Diversity Visa program, USCIS would consider an immigrant visa case
pending as soon as DOS selects the alien for the program. See proposed
8 CFR 212.7(e)(3)(iv) and 8 CFR 212.7(e)(5)(ii)(F). Because Diversity
Visa program selectees and derivatives do not have to pay the immigrant
visa processing fee until the immigrant visa interview, DHS proposes
that such aliens would not have to provide proof of payment of the
immigrant visa processing fee when they apply for a provisional waiver.
See proposed 8 CFR 212.7(e)(3)(iv) and 8 CFR 212.7(e)(5)(ii)(F).
C. Qualifying Relatives
DHS proposes to expand eligibility for provisional waivers to
include aliens who can establish extreme hardship to an LPR spouse or
parent. This proposed expansion would allow immigrant visa applicants,
including diversity visa applicants, to seek provisional waivers based
on extreme hardship to all categories of qualifying relatives
authorized by statute. See proposed 8 CFR 212.7(e)(3)(vi) and 8 CFR
212.7(e)(8). Although the benefits of this rule largely would accrue to
the expanded group of aliens newly eligible to apply for provisional
waivers under the rule, certain immediate relatives of U.S. citizens
will also experience
[[Page 43343]]
benefits from this rule. For example, an alien who is the beneficiary
of an immediate relative petition filed by his or her U.S. citizen son
or daughter--who is not a qualifying relative for purposes of the
waiver--could seek a provisional waiver based on extreme hardship that
would be suffered by the alien's LPR spouse.
D. Aliens With Scheduled Immigrant Visa Interviews
DHS proposes to limit eligibility for provisional waivers under
this rulemaking to aliens, other than immediate relatives of U.S.
citizens, who have not had their immigrant visa interviews scheduled
before the effective date of a final rule. DHS also proposes that
immediate relatives of U.S. citizens will be eligible to file for
provisional waivers if they have not had their immigrant visa
interviews scheduled before January 3, 2013, even if they may not have
been previously eligible to apply for provisional waivers under the
current rule.\12\ For these purposes, DHS will use the date that DOS
initially acted to schedule the immigrant visa interview, not the date
that the alien is scheduled to appear for the immigrant visa interview.
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\12\ Aliens who are immediate relatives of U.S. citizens but who
can only demonstrate that the denial of admission would cause
extreme hardship to an LPR spouse or parent (rather than a U.S.
citizen spouse or parent) are currently ineligible for provisional
waivers.
---------------------------------------------------------------------------
As reflected in the 2013 rulemaking, these restrictions are
necessary to make the process operationally manageable without creating
delays in the processing of other petitions or applications filed with
USCIS or in the DOS immigrant visa process. If the proposed rule
included aliens who were scheduled for an interview prior to the
effective date of a final rule, the projected volume of cases could
increase and create backlogs not only in the provisional waiver
process, but also in adjudication of other USCIS benefits. The
increased volume could also adversely impact DOS and its immigrant visa
process.\13\
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\13\ Focusing on U.S. citizens and their immediate relative
family members in the expansion of this discretionary procedure also
is consistent with permissible distinctions that may be drawn
between U.S. citizens and aliens and between classes of aliens in
immigration laws and policies. See, e.g., Fiallo v. Bell, 430 U.S.
787, 792 (1977); Mathews v. Diaz, 426 U.S. 67, 81 (1976).
---------------------------------------------------------------------------
E. Miscellaneous Changes
This rule also proposes to remove from the affected regulations all
unnecessary procedural instructions regarding office names and
locations, position titles and responsibilities, and form numbers.
Prescribing an office name, such as ``Application Support Center,'' is
unnecessary and restricts USCIS' ability to vary work locations as
necessary to address its workload needs, better utilize its resources,
and serve its customers. See, e.g., proposed 8 CFR 212.7(e)(3)(ii)
(replacing the term ``USCIS ASC'' with ``location in the United States
designated by USCIS''). Likewise, requiring a specific form to be filed
for a certain benefit in the Code of Federal Regulations (CFR) is
generally unnecessary, and enumerating specific form numbers reduces
the agency's ability to modify or modernize its business processes to
address changing needs. See, e.g., proposed 8 CFR 212.7(e)(5)(i)
(replacing ``Form I-601A'' with ``application for a provisional
unlawful presence waiver''). Finally, listing specific officer titles
for consideration of provisional waiver applications restricts USCIS'
flexibility in the adjudication of immigration benefits. See, e.g.,
proposed 8 CFR 212.7(e)(12)(i)(C) (removing ``consular officer'').
Authorities and functions of DHS to administer and enforce the
immigration laws are appropriately delegated to DHS employees and
others in accordance with section 102(b)(1) of the Homeland Security
Act of 2002, 6 U.S.C. 112(b)(1); section 103(a) of the INA, 8 U.S.C.
1103(a); and 8 CFR 2.1.
In addition, USCIS is proposing to revise 8 CFR 212.7(e)(8) by
removing the superfluous sentence that states USCIS may require the
alien and the U.S. citizen petitioner to appear for an interview
pursuant to 8 CFR 103.2(b)(9). USCIS already has the authority to
require an applicant or petitioner to appear for an interview under 8
CFR 103.2(b)(9). USCIS thus retains the authority to require an
interview regardless of the inclusion of such authority in Sec.
212.7(e)(8). The cross reference at 8 CFR 212.7(e)(8) was unnecessarily
redundant.
Finally, DHS is correcting two errors. First, in 8 CFR 103.2(b),
DHS is replacing the article ``an'' with the article ``a,'' wherever
the article appears before the term ``benefit request'' in paragraphs
(b)(6), (b)(9), (b)(10), and (b)(12). Second, in 8 CFR 212.7(a), DHS is
removing the title to effectuate the change that was intended to be
made in the 2013 rule.
F. Benefits of the Proposed Changes
By making the provisional waiver process available to all aliens
who are statutorily eligible for the waiver of unlawful presence under
section 212(a)(9)(B)(v) and meet certain other conditions, DHS would be
expanding the population of aliens who could benefit from a streamlined
immigrant visa process. DHS believes that expanding availability of the
provisional waiver process would likely reduce the overall immigrant
visa processing time for eligible immigrant visa applicants, thereby
saving DHS, DOS, and applicants both the time and resources currently
devoted to the Form I-601 waiver process. DHS also believes that the
proposed expansion would reduce the hardship that U.S. citizen and LPR
families experience as a result of separation from their alien
relatives. Some immediate relatives of U.S. citizens may also benefit
from the proposal to broaden the group of individuals who can serve as
qualifying relatives for the provisional waiver's extreme hardship
determination.
V. Public Input
DHS invites comments from all interested parties, including
advocacy groups, nongovernmental organizations, community-based
organizations, and legal representatives who specialize in immigration
law, on any and all aspects of this proposed rule. DHS is specifically
seeking comments on:
a. The proposal to expand eligibility for provisional waivers to
include the following aliens not covered by the current rule:
Immediate relatives of U.S. citizens under INA section
201(b)(2), 8 U.S.C. 1151(b)(2), who can establish extreme hardship to
an LPR spouse or parent as provided under INA section 212(a)(9)(B)(v);
Family-sponsored immigrant visa applicants under INA
section 203(a), 8 U.S.C. 1153(a);
Employment-based immigrant visa applicants and certain
special immigrants under INA section 203(b), 8 U.S.C. 1153(b);
Diversity immigrants under INA section 203(c), 8 U.S.C.
1153(c); and
Derivative family members of the above mentioned immigrant
visa applicants, in accordance with INA section 203(d), 8 U.S.C.
1153(d).
b. The proposal to limit eligibility for provisional waivers to
aliens as follows: (1) for immediate relatives of U.S. citizens, to
those for whom DOS initially acted to schedule their immigrant visa
interviews on or after January 3, 2013; and (2) for all other immigrant
visa applicants, on or after the effective date of the final rule.
c. Any alternatives to this proposed rule that may be more
effective than the current provisional waiver process or the amended
process described in the proposed rule.
[[Page 43344]]
VI. Statutory and Regulatory Requirements
A. Unfunded Mandates Reform Act of 1995
This proposed rule will not result in the expenditure by State,
local and tribal governments, in the aggregate, or by the private
sector, of $100 million or more in any one year, and it will not
significantly or uniquely affect small governments. Therefore, no
actions were deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
B. Small Business Regulatory Enforcement Fairness Act of 1996
This proposed rule is not a major rule as defined by section 804 of
the Small Business Regulatory Enforcement Act of 1996. This rule will
not result in an annual effect on the economy of $100 million or more;
a major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
C. 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. This rule is a ``significant regulatory action,'' although
not an economically significant regulatory action, under section 3(f)
of Executive Order 12866. Accordingly, the Office of Management and
Budget has reviewed this regulation. This effort is consistent with
Executive Order 13563's call for agencies to ``consider how best to
promote retrospective analysis of rules that may be outmoded,
ineffective, insufficient, or excessively burdensome, and to modify,
streamline, expand, or repeal them in accordance with what has been
learned.''
1. Summary
The proposed expansion of the provisional waiver process would
create costs and benefits to provisional waiver (Form I-601A)
applicants, their U.S. citizen or lawful permanent resident (LPR)
family members, and the Federal Government (namely, U.S. Citizenship
and Immigration Services (USCIS) and the Department of State (DOS)), as
summarized in Table 1. This rule would impose fee, time, and travel
costs on aliens who choose to complete and submit provisional waiver
applications and biometrics (namely, fingerprints, photograph, and
signature) to USCIS for consideration. These costs would be $58.5
million at a 7 percent discount rate and $71.6 million at a 3 percent
discount rate in present value across the 10-year period of analysis.
On an annualized basis, the costs are $8.3 million and $8.4 million at
7 percent and 3 percent, respectively (see Table 1).
Newly eligible provisional waiver applicants and their U.S. citizen
or LPR family members would benefit from this rule. Beneficiaries of
provisional waivers may experience shortened periods of separation from
their family members living in the United States while they pursue an
immigrant visa abroad, thus reducing any related financial and
emotional strain on the family. If finalized, some immediate relatives
of U.S. citizens may also benefit from the rule's broadened group of
individuals who can be qualifying relatives for the provisional
waiver's extreme hardship determination. Additionally, USCIS and DOS
would continue to benefit from the operational efficiencies gained from
the provisional waiver's role in streamlining immigrant visa
application processing, though on a larger scale than currently in
place.
In the absence of this rule, DHS assumes that the majority of
aliens newly eligible for provisional waivers under this rule would
pursue an immigrant visa through consular processing abroad and apply
for waivers of unlawful presence through the Form I-601 process. Aliens
who would otherwise apply for unlawful presence waivers through the
Form I-601 process would incur fee, time, and travel costs similar to
aliens applying for waivers through the provisional waiver process. But
in the absence of this rule, Form I-601 applicants would face longer
separation times from their family in the United States and less
certainty regarding their application for the waiver.
Table 1--Total Costs and Benefits of This Rule, Year 1-Year 10
--------------------------------------------------------------------------------------------------------------------------------------------------------
10-Year present values Annualized values
---------------------------------------------------------------------------------------------------
3% Discount rate 7% Discount rate 3% Discount rate 7% Discount rate
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Costs:
Quantitative.................................... $71,622,948 $58,520,192 $8,396,394 $8,331,959
Total Benefits:
---------------------------------------------------------------------------------------------------
Qualitative..................................... Decreased amount of time that U.S. citizens or
LPRs are separated from their alien family
members, leading to reduced financial and
emotional hardship for these families.
Decreased amount of time that U.S. citizens or
LPRs are separated from their alien family
members, leading to reduced financial and
emotional hardship for these families.
Federal Government would achieve increased
efficiencies by streamlining immigrant visa
processing for aliens seeking inadmissibility
waivers of unlawful presence.
Federal Government would achieve increased
efficiencies by streamlining immigrant visa
processing for aliens seeking inadmissibility
waivers of unlawful presence.
Aliens, and their family members, would receive
advance notice of USCIS's decision on their
waiver application prior to leaving the United
States for their immigrant visa interview
abroad, offering many the certainty of knowing
they have been provisionally approved for a
waiver.
Aliens, and their family members, would receive
advance notice of USCIS's decision on their
waiver application prior to leaving the United
States for their immigrant visa interview
abroad, offering many the certainty of knowing
they have been provisionally approved for a
waiver.
[[Page 43345]]
Certain previously ineligible immediate
relatives may now qualify for provisional
waivers due to the broadened group of
individuals who can be qualifying relatives for
the waiver's extreme hardship determination.
Certain previously ineligible immediate
relatives may now qualify for provisional
waivers due to the broadened group of
individuals who can be qualifying relatives for
the waiver's extreme hardship determination.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: The cost estimates in this table are contingent upon Form I-601A filing (or receipt) projections as well as the discount rates applied for
monetized values.
2. Background
Aliens who are in the United States and seeking LPR status must
either obtain an immigrant visa abroad through consular processing with
DOS or apply to adjust status in the United States, if eligible. Aliens
present in the United States without having been inspected and admitted
or paroled are typically ineligible to adjust their status in the
United States. To obtain LPR status, such aliens must leave the United
States for immigrant visa processing at a U.S. Embassy or consulate
abroad. Because these aliens are present in the United States without
having been inspected and admitted or paroled, many have already
accrued enough unlawful presence (more than 180 days) to trigger the 3-
or 10-year unlawful presence grounds of inadmissibility upon departure
from the United States. Indeed, in most cases, the action these aliens
must take to obtain their immigrant visa--departing the United States
to attend a consular interview--is the very action that triggers the 3-
or 10-year bar to admissibility due to the accrual of unlawful
presence. See INA section 212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i).
While there may be limited exceptions, the population affected by this
rule would consist almost exclusively of aliens who are eligible for
immigrant visas but are unlawfully present in the United States without
having been inspected and admitted or paroled.
Historically, aliens seeking an immigrant visa through consular
processing were only able to apply for a waiver of a ground of
inadmissibility, like a waiver of inadmissibility for unlawful
presence, after attending their immigrant visa interview abroad. If a
consular officer identified a ground or grounds of inadmissibility
during an immigrant visa interview, the immigrant visa applicant was
tentatively denied an immigrant visa and allowed to complete a waiver
of the applicable ground(s) of inadmissibility, if a waiver was
available. The immigrant visa applicant could apply for such a waiver
by filing an Application for Waiver of Grounds of Inadmissibility, Form
I-601, with USCIS. Applicants who applied for such waivers were
required to remain abroad while USCIS adjudicated their Form I-601,
which currently takes an average of five months to complete.\14\ If
USCIS granted a waiver of the inadmissibility ground(s), DOS
subsequently scheduled a follow-up consular interview. Provided there
were no other concerns raised by the consular officer, DOS generally
issued the immigrant visa during the follow-up consular interview. For
some aliens, the Form I-601 waiver process has led to lengthy
separations of immigrant visa applicants and their U.S. citizen or LPR
spouses, parents, and children, causing both financial and emotional
harm. The Form I-601 waiver process has also created processing
inefficiencies for both USCIS and DOS through repeated interagency
communication and through multiple consular appointments or interviews.
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\14\ This figure is based on Form I-601 average adjudication
times gathered from USCIS's Nebraska Service Center on March 3,
2015.
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With the goals of streamlining the inadmissibility waiver process,
facilitating efficient immigrant visa issuance, and promoting family
unity, DHS promulgated a rule that established an alternative
inadmissibility waiver process on January 3, 2013 (``2013 rule'').\15\
The 2013 rule created a provisional waiver process for certain
immediate relatives of U.S. citizens (namely, spouses, children, and
parents of U.S. citizens) who are in the United States, are seeking
immigrant visas, can demonstrate extreme hardship to a U.S. citizen
spouse or parent, and would be inadmissible upon departure from the
United States due to only the accrual of unlawful presence. That
process allowed such aliens to apply for a provisional waiver prior to
departing for DOS consular processing of their immigrant visa
applications. Instead of requiring them to wait abroad while USCIS
adjudicates their application for a waiver of inadmissibility through
the Form I-601 waiver process, the provisional waiver process
established in 2013 allowed those applicants to remain in the United
States with their U.S. citizen relative(s) while awaiting notification
of USCIS's decision on their provisional waiver application. Following
approval of a provisional waiver, applicants are scheduled for their
immigrant visa interviews abroad.
---------------------------------------------------------------------------
\15\ See 78 FR 536 (Jan. 3, 2013).
---------------------------------------------------------------------------
Since the provisional waiver process's inception, USCIS has
approved more than 44,000 provisional waiver applications (through Form
I-601A filings) for certain immediate relatives of U.S. citizens,\16\
allowing these individuals to enjoy the benefits incident to such
waivers. Illustrating the demand for provisional waivers, Table 2
displays the historical numbers of Form I-601A receipts, approvals, and
denials recorded for March of fiscal year (FY) 2013 through January of
FY 2015.
---------------------------------------------------------------------------
\16\ This figure is based on Form I-601A approvals data through
January 2015. Please note that USCIS began accepting provisional
waiver applications on March 4, 2013. Source: Data gathered from
USCIS's Office of Performance and Quality on February 20, 2015.
Table 2--Historical Numbers of Form I-601A Receipts, Approvals, and Denials
----------------------------------------------------------------------------------------------------------------
Fiscal Year Month Receipts Approvals Denials
----------------------------------------------------------------------------------------------------------------
2013.................................. Mar..................... 1,306 746 421
Apr..................... 2,737 5 2
May..................... 3,267 52 19
[[Page 43346]]
Jun..................... 3,119 226 345
Jul..................... 3,425 1006 763
Aug..................... 3,075 1435 937
Sep..................... 2,798 1,749 458
-----------------------------------------------
FY 2013 Total..................... ........................ 19,727 4,473 2,524
2014.................................. Oct..................... 2,886 1,465 612
Nov..................... 2,697 1,456 577
Dec..................... 2,641 1,708 541
Jan..................... 2,256 1,616 793
Feb..................... 2,483 1,282 574
Mar..................... 2,989 1,216 987
Apr..................... 3,265 1,363 675
May..................... 3,650 2,052 640
Jun..................... 4,184 3,152 1,057
Jul..................... 3,778 4,211 1,451
Aug..................... 3,907 3,914 1,808
Sep..................... 4,237 4,076 1,493
-----------------------------------------------
FY 2014 Total..................... ........................ 38,973 27,511 11,208
2015.................................. Oct..................... 4,540 4,196 1,465
Nov..................... 3,726 2,168 948
Dec..................... 4,103 2,838 1,185
Jan..................... 3,370 3,012 1,443
-----------------------------------------------
FY 2015 Total..................... ........................ 15,739 12,214 5,041
Cumulative FY 2013-FY 2015 ........................ 74,439 44,198 18,773
Total.
----------------------------------------------------------------------------------------------------------------
Note: Approvals and denials reflect actual cases adjudicated, which do not directly correspond to filing
receipts for the month.
Source: Data gathered from USCIS's Office of Performance and Quality on March 5, 2015.
3. Purpose of Rule
Despite the provisional waiver process's benefits to certain
immediate relatives of U.S. citizens, thousands of non-immediate
relatives of U.S. citizens and LPRs \17\ seeking immigrant visas who
are inadmissible to the United States due to only unlawful presence
still face the financial and emotional burdens of pursuing a Form I-601
waiver while outside of the country and away from their family in the
United States. In addition to promoting the goal of family unity
between eligible non-immediate relatives and their U.S. citizen or LPR
family members, this rule would increase USCIS and DOS efficiencies by
streamlining the waiver process for unlawful presence for this expanded
group of aliens.
---------------------------------------------------------------------------
\17\ Examples of family relationships that fall into the ``non-
immediate'' category include, but are not limited to, adult sons and
daughters of U.S. citizens; brothers and sisters of U.S. citizens;
and spouses and children of LPRs.
---------------------------------------------------------------------------
To assess the initial effectiveness of the provisional waiver
process, DHS decided to offer this process to a limited group of aliens
in the 2013 rule.\18\ Based on the Form I-601 waiver process's
financial and emotional burdens to families and the efficiencies
realized for both USCIS and DOS through the provisional waiver process,
the Secretary directed USCIS to expand eligibility for the provisional
waiver process beyond certain immediate relatives of U.S. citizens to
all statutorily eligible relatives of U.S. citizens and LPRs.\19\
Consistent with that directive, USCIS (through DHS authority) now
proposes to extend the provisional waiver process to include all other
aliens seeking an immigrant visa (hereafter, ``all other immigrant visa
applicants'') who are statutorily eligible to apply for a waiver of the
3- or 10-year unlawful presence bar, are present in the United States,
and otherwise meet the requirements of the provisional waiver
process.\20\ USCIS also proposes to allow LPR spouses and parents, in
addition to currently eligible U.S. citizen spouses and parents, to
serve as qualifying relatives for the provisional waiver's extreme
hardship determination. Under this proposal, provisional waiver
applicants could show that their denial of admission would cause
extreme hardship to their U.S. citizen or LPR spouses or parents.
---------------------------------------------------------------------------
\18\ See 78 FR at 542 (Jan. 3, 2013).
\19\ See Memorandum from Jeh Charles Johnson, Secretary, for
Le[oacute]n Rodr[iacute]guez, Director, U.S. Citizenship and
Immigration Services, Expansion of the Provisional Waiver Program,
Nov. 20, 2014, available at https://www.dhs.gov/sites/default/files/publications/14_1120_memo_i601a_waiver.pdf.
\20\ The phrase ``all other immigrant visa applicants''
encompasses the following immigrant visa categories: Family-
sponsored immigrants, employment-based immigrants, diversity
immigrants, and certain special immigrants.
---------------------------------------------------------------------------
This rule's proposed changes would provide more aliens and their
U.S. citizen or LPR family members with the provisional waiver's main
benefit of shortened family separation periods, while increasing USCIS
and DOS efficiencies by streamlining the immigrant visa process for
such aliens. Additionally, the proposed changes may allow more
immediate relatives of U.S. citizens to qualify for provisional waivers
by broadening the group of individuals who could serve as qualifying
relatives for the waiver's extreme hardship determination. Other than
the changes proposed in this rulemaking, DHS would maintain all other
eligibility requirements for the provisional waiver as currently
outlined in 8 CFR 212.7(e), including the requirements to submit
biometrics, pay a $585 application fee and $85 biometric services fee,
and be currently present in the United States at the time of the
provisional waiver application filing and biometrics appointment.
4. Current Provisional Waiver Process
In this analysis, DHS draws on relevant DOS inadmissibility
statistics and historical provisional waiver application data to
estimate the demand for provisional waivers occurring in the absence of
this rule (for certain immediate relatives of U.S. citizens), as well
as directly resulting from this rule
[[Page 43347]]
(for the expanded population of eligible immigrant visa beneficiaries).
Table 3 shows DOS's historical immigrant visa inadmissibility findings
due to only unlawful presence. Between FYs 2010 and 2014, DOS recorded
inadmissibility due to only unlawful presence for almost 241,000
immediate relative visas and for nearly 60,000 all other immigrant
visas.\21\
---------------------------------------------------------------------------
\21\ Of the inadmissibility figures recorded for all other
immigrant visa categories, nearly 98 percent corresponded to family-
sponsored (other than immediate relatives of U.S. citizens)
immigrant visa applications, 1 percent corresponded to employment-
based immigrant visa applications, 1 percent corresponded to
Diversity Visa immigrant applications, and a fraction of 1 percent
corresponded to certain special immigrant visa applications.
Table 3--Number of Immigrant Visa Inadmissibility Findings Due to Only Unlawful Presence
----------------------------------------------------------------------------------------------------------------
Visa category type
--------------------------------
Fiscal year All other Total
Immediate immigrants
relatives \22\ \23\
----------------------------------------------------------------------------------------------------------------
2010............................................................ 44,497 4,955 49,452
2011............................................................ 45,961 13,162 59,123
2012............................................................ 46,520 13,568 60,088
2013............................................................ 45,602 14,354 59,956
2014............................................................ 58,058 13,946 72,004
-----------------------------------------------
Total....................................................... 240,638 59,985 300,623
----------------------------------------------------------------------------------------------------------------
Source: Data gathered from the U.S. Department of State's Bureau of Consular Affairs on March 25, 2015.
With the implementation of the 2013 rule, immediate relatives of
U.S. citizens seeking immigrant visas who were present in the United
States, demonstrated extreme hardship to their U.S. citizen spouse or
parent, and were inadmissible only for unlawful presence became
eligible to apply for provisional waivers. See 8 CFR 212.7(e). Table 4
compares the number of DOS immediate relative visa inadmissibility
findings due to only unlawful presence and provisional waiver
applications filed with USCIS for FYs 2013 and 2014. Because the
provisional waiver process went into effect in March 2013, immediate
relatives could file provisional waiver applications only during the
last seven months of FY 2013.\24\ Thus, for comparison purposes, USCIS
adjusted DOS's FY 2013 immediate relative visa inadmissibility counts
to reflect only a partial year (specifically, 7/12 of a year). During
FYs 2013 and 2014, USCIS received a total of 58,700 provisional waiver
applications, which represented approximately 70 percent \25\ of the
population of certain immediate relatives found inadmissible for
unlawful presence during that same time period.\26\
---------------------------------------------------------------------------
\22\ Population addressed in the 2013 rule (immediate relatives
of U.S. citizens).
\23\ Population impacted by this rule.
\24\ FY 2013 is October 1, 2012 to September 30, 2013.
\25\ Calculated as 58,700 2-year total Form I-601A receipts
divided by 84,659 total immediate relative inadmissibility count for
March 2013 through FY 2014, which equals 0.693, or 0.70 when rounded
to the first decimal place.
\26\ Data gathered from USCIS's Office of Performance and
Quality Reporting on March 5, 2015.
Table 4--Number of Immediate Relative Immigrant Visa Inadmissibility Findings Due to Only Unlawful Presence
Compared to Historical Form I-601A Receipts
----------------------------------------------------------------------------------------------------------------
Immediate relative immigrant visa Immediate relative Form I-601A
inadmissibility receipts
---------------------------------------------------------------------------
Ratio of Form I-
Fiscal year Inadmissibility 601A receipts to
Inadmissibility findings adjusted Actual Form I- inadmissibility
findings for partial year 601A receipts findings (%)
----------------------------------------------------------------------------------------------------------------
Year 1 (2013)....................... 45,602 26,601 19,727 74
Year 2 (2014)....................... 58,058 58,058 38,973 67
---------------------------------------------------------------------------
2-Year Total/Avg................ 103,660 84,659 58,700 70
----------------------------------------------------------------------------------------------------------------
Notes: The provisional waiver process's implementation date was March 4, 2013. DHS adjusted the full year of
immediate relative immigrant visa inadmissibility counts due to only unlawful presence in 2013 to account for
only the portion of the year in which the provisional waiver process existed. The data listed in this table
was rounded.
The actual Form I-601A filing demands, illustrated in Table 2 and
Table 4, differ from the estimates in the 2013 rule's economic impact
analysis. When DHS conducted the 2013 rule's economic impact analysis,
DHS did not have statistics on unlawful presence inadmissibility
findings for immediate relatives that would allow for a precise
calculation of the rule's impact. Due to such limitations, DHS instead
estimated the rule's impact based on various demand scenarios. In this
rule's analysis, DHS retrospectively examined DOS data on unlawful
presence inadmissibility findings for immediate relatives and compared
this information against USCIS receipts for provisional waiver
applications (through Form I-601A filings) to determine the future
demand for provisional waivers.
When determining a figure upon which to base future inadmissibility
estimates and subsequent Form I-601A demand, DHS chose to use the
actual FY 2014 inadmissibility count for unlawful presence rather than
a multi-year
[[Page 43348]]
average of historical values as the averages did not seem to fully
capture the general rise in inadmissibility findings occurring between
FYs 2010 and 2014 (see Table 3).\27\ Consistent with the ratio of
provisional waiver application filings to immediate relative visa
inadmissibility counts based solely on unlawful presence during FYs
2013 and 2014 listed in Table 4, DHS assumes that 70 percent of the
population of immediate relatives found inadmissible only for unlawful
presence would file a Form I-601A provisional waiver application. In
the absence of this rule, DHS projects that the number of immediate
relative visa inadmissibility findings due to only unlawful presence
would continue to increase from the FY 2014 count shown in Table 4
(58,058) by 2.5 percent per year based on the compound annual growth
rate of the unauthorized immigrant population living in the United
States between 2000 and 2012.\28\ To calculate future Form I-601A
filing (or receipt) volumes, DHS multiplies the 70 percent provisional
waiver filing rate by the annual numbers of immediate relative
immigrant visa inadmissibility findings due to only unlawful presence.
Note that when applying this filing rate to yearly inadmissibility
figures, the numbers may not match those listed in Table 5 due to
rounding.\29\ DHS originally calculated the estimates in Table 5 using
unrounded figures. Thereafter, all estimates were simultaneously
rounded for tabular presentation. In the absence of this rule, USCIS
would receive a projected 467,000 provisional waiver applications
across 10 years of analysis, as Table 5 illustrates. These provisional
waiver applications may ultimately result in waiver approvals or
denials.
---------------------------------------------------------------------------
\27\ Both the three-year FY 2012-FY 2014 average (50,060) and
five-year FY 2010-FY 2014 average (48,128) of immediate relative
inadmissibility finding counts differed significantly from the FY
2014 total immediate relative inadmissibility finding count of
58,058 (see Table 3).
\28\ Calculated by comparing the estimated unauthorized
immigrant population living in the United States in 2000 (8,500,000)
and the estimated unauthorized immigrant population living in the
United States in 2012 (11,400,000). In recent years, the estimated
unauthorized immigrant population has decreased. DHS uses the
historical growth rate in the unauthorized immigrant population from
2000 to 2012 because it most likely reflects the population impacted
by this rule. This population includes those who have likely been
unlawfully present in the United States for an extended period and
who have already started the immigrant visa process by having an
approved petition. Source: U.S. Department of Homeland Security's
Office of Immigration Statistics, Estimates of the Unauthorized
Immigrant Population Residing in the United States: January 2012,
Figure 1, Unauthorized Immigrant Population: 2000-2012, Mar. 2013,
available at https://www.dhs.gov/sites/default/files/publications/ois_ill_pe_2012_2.pdf.
\29\ For example, using the figures in Table 5, the Year 1
immediate relative immigrant visa inadmissibility findings count due
to only unlawful presence equals 59,509. Calculation: 59,909
multiplied by 0.70 (the Form I-601A filing rate) equals 41,656.3.
The calculated result differs slightly from the 41,657 Year 1 Form
I-601A receipts figure in the table.
Table 5--Projected Numbers of Immediate Relative Immigrant Visa
Inadmissibility Findings Due to Only Unlawful Presence and Form I-601A
Applications in the Absence of This Rule
[Population addressed in 2013 rule]
------------------------------------------------------------------------
Inadmissibility
findings due to Form I-601A
Fiscal year only unlawful receipts--immediate
presence--immediate relatives \31\
relatives \30\
------------------------------------------------------------------------
Year 1........................ 59,509 41,657
Year 2........................ 60,997 42,698
Year 3........................ 62,522 43,765
Year 4........................ 64,085 44,860
Year 5........................ 65,687 45,981
Year 6........................ 67,329 47,131
Year 7........................ 69,013 48,309
Year 8........................ 70,738 49,517
Year 9........................ 72,506 50,755
Year 10....................... 74,319 52,023
-----------------------------------------
Total..................... 666,705 466,696
------------------------------------------------------------------------
Notes: The estimates in this table were originally calculated using
unrounded figures. Thereafter, all estimates were simultaneously
rounded for tabular presentation. Estimates may not sum to total due
to rounding.
5. The Population Affected by This Rule
---------------------------------------------------------------------------
\30\ Population of immediate relatives potentially eligible for
provisional waivers.
\31\ Estimated number of provisional waiver applications from
the eligible population of immediate relatives. These applications
do not necessarily correspond to waiver approvals.
---------------------------------------------------------------------------
With this rule's implementation, the number of provisional waiver
applications would increase from the figures listed in Table 5 as the
waiver eligibility criteria expands from only certain immediate
relatives of U.S. citizens to include all other immigrant visa
applicants who are present in the United States and who otherwise meet
the requirements of the provisional waiver process.\32\ DHS does not
believe that this proposed rule would induce any new demand above the
status quo for petitions or immigrant visa applications for this
expanded group of aliens. DHS bases this assumption on the fact that
the immigrant visa categories to which this rule would now apply
(namely, family-sponsored, employment-based, diversity, and certain
special immigrant visa categories) are generally subject to statutory
visa issuance limits and lengthy visa availability waits due to
oversubscription,\33\ unlike the immediate relative category currently
[[Page 43349]]
eligible for provisional waivers. Furthermore, there is no evidence
that the Secretary's November 2014 memorandum \34\ on the expansion of
the provisional waiver process spurred a significant increase in
filings of the Petition for Alien Relative, Form I-130, or the
Immigrant Petition for Alien Worker, Form I-140.\35\ Thus, DHS does not
believe that this rule would increase the demand for the immigrant visa
categories to which it applies.
---------------------------------------------------------------------------
\32\ As previously mentioned, the phrase ``all other immigrant
visa applicants'' encompasses the following immigrant visa
categories: Family-sponsored immigrants, employment-based
immigrants, Diversity Visa immigrants, and certain special
immigrants.
\33\ Family-sponsored immigrant visa applicants, who represent
nearly 98 percent of the ``all other immigrant visa applicant''
population found inadmissible due to only unlawful presence,
currently face visa oversubscription. This means that any new
family-sponsored visa applicants must wait in line for available
visas. Depending upon the applicant's country of chargeability and
preference category, this wait could be many years. Source: U.S.
Department of State, Visa Bulletin for April 2015, IX (79), Mar.
2015, available at https://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-april-2015.html.
\34\ See Memorandum from Jeh Charles Johnson, Secretary, for
Le[oacute]n Rodr[iacute]guez, Director, U.S. Citizenship and
Immigration Services, Expansion of the Provisional Waiver Program,
Nov. 20, 2014, available at https://www.dhs.gov/sites/default/files/publications/14_1120_memo_i601a_waiver.pdf.
\35\ Based on a DHS comparison of Form I-130 and Form I-140
filings during the fiscal years before and after the Secretary's
2014 memorandum on the expansion of the provisional waiver program.
---------------------------------------------------------------------------
To determine the impact of this rule, DHS employs the same
projection method used to estimate future volumes of unlawful presence
inadmissibility findings and provisional waiver applications occurring
in the absence of this rule. By applying the previously discussed
historical 2.5 percent compound annual growth rate of unauthorized
immigrants from 2000 to 2012, to the FY 2014 count of all other
immigrant visa inadmissibility findings due to only unlawful presence
(13,946, as listed in Table 3), DHS projects that non-immediate
relative immigrant visa inadmissibility findings due to only unlawful
presence would measure approximately 14,295 during this rule's first
year of implementation (see Table 6).\36\ Based on the current demand
for provisional waivers, DHS assumes that 70 percent of the ``all other
immigrant visa applicant'' population found inadmissible due to only
unlawful presence each year would apply for a provisional waiver
annually (see Table 6). Note that when applying this 70 percent filing
rate to the inadmissible population estimates in Table 6, the numbers
may not match those in the table due to rounding. The estimates in
Table 6 were originally calculated using unrounded figures. Thereafter,
all estimates were simultaneously rounded for tabular presentation.
---------------------------------------------------------------------------
\36\ FY 2014 ``all other immigrant visa applicants'' count found
inadmissible due to only unlawful presence of 13,946 multiplied by
2.5 percent growth rate (that is, 1.025), which equals 14,295 non-
immediate relative immigrant visa applicants found inadmissible due
to only unlawful presence (rounded).
---------------------------------------------------------------------------
Table 6 outlines the population of all other immigrant visa
applicants impacted by this rule. During this rule's first year of
implementation, DHS projects that USCIS could receive approximately
10,006 provisional waiver applications from newly eligible non-
immediate relatives.\37\ Across a 10-year period of analysis, DHS
estimates that inadmissibility findings based solely on unlawful
presence for non-immediate relatives would total about 160,000, while
provisional waiver applications from this population of inadmissible
non-immediate relative immigrants would measure nearly 112,000. These
provisional waiver applications may ultimately result in waiver
approvals or denials. Note that Table 6 presents only the additional
Form I-601A filings that would occur as a result of this rule; it does
not account for the provisional waiver applications that DHS
anticipates would be filed in the absence of this rule by certain
immediate relatives of U.S. citizens (listed in Table 5).
---------------------------------------------------------------------------
\37\ Year 1's 14,295 non-immediate relative immigrant visa
applicant count found inadmissible due to only unlawful presence
multiplied by a 70 percent filing rate (0.70), which equals 10,006
Form I-601A receipts.
\38\ Population of immigrants newly eligible under this rule for
provisional waivers.
\39\ Estimated number of provisional waiver applications from
the eligible population of all other immigrants. These applications
do not necessarily correspond to waiver approvals.
Table 6--Projected Numbers of All Other Immigrant Visa Inadmissibility
Findings Due to Only Unlawful Presence and Form I-601A Applications
Resulting From This Rule
------------------------------------------------------------------------
Inadmissibility
findings due to Total Form I-601A
only unlawful receipts--All
Fiscal year presence-- All other immigrants
other immigrants \39\
\38\
------------------------------------------------------------------------
Year 1............................ 14,295 10,006
Year 2............................ 14,652 10,256
Year 3............................ 15,018 10,513
Year 4............................ 15,394 10,776
Year 5............................ 15,779 11,045
Year 6............................ 16,173 11,321
Year 7............................ 16,577 11,604
Year 8............................ 16,992 11,894
Year 9............................ 17,417 12,192
Year 10........................... 17,852 12,496
-------------------------------------
Total......................... 160,149 112,103
------------------------------------------------------------------------
Notes: The estimates in this table were originally calculated using
unrounded figures. Thereafter, all estimates were simultaneously
rounded for tabular presentation. Estimates may not sum to total due
to rounding.
In addition to the non-immediate relative population affected by
this rule illustrated in Table 6, this rule's broadened group of
qualifying relatives for the provisional waiver's extreme hardship
determination may impact some immediate relatives of U.S. citizens.
Yet, the exact number of such immediate relatives is unknown. DHS
welcomes any public comments on the population projections used in this
analysis.
6. Costs and Benefits
To summarize, aliens who are immediate relatives of U.S. citizens
and who are currently eligible for provisional waivers would continue
to apply for such waivers in the absence of this rule. At the time of
the 2013 rule, DHS was unable to predict the likely application volumes
of Form I-601A with precision. With additional information from DOS and
the experience since the provisional waiver's inception, DHS can
reasonably project the provisional waiver application rate from
currently eligible immediate relatives who trigger unlawful presence
bars. In fact, DHS
[[Page 43350]]
estimates that USCIS would receive 467,000 provisional waiver
applications from currently eligible immediate relatives of U.S.
citizens across 10 years of analysis (see Table 5). Table 5 represents
the baseline of immediate relatives of U.S. citizens that would trigger
unlawful presence bars, and those that would likely apply for a
provisional waiver based on recent application rates. This proposed
rule would expand eligibility for the provisional waiver process to
include individuals who fall within all other immigrant visa
classifications, are statutorily eligible to apply for a waiver of the
3- or 10-year unlawful presence bar, are present in the United States,
and otherwise meet the requirements of the provisional waiver
process.\40\ As illustrated in Table 6, DHS estimates that provisional
waiver applications from the population of newly eligible non-immediate
relative immigrants would measure nearly 112,000 across a 10-year
period of analysis. As previously mentioned, this proposed rule could
also impact some immediate relatives of U.S. citizens by amending the
definition of qualifying relatives for purposes of extreme hardship
determinations, but the exact number is unknown. Accordingly, DHS
analyzes the costs and benefits of this rule to the population of newly
eligible non-immediate relatives expected to apply for provisional
waivers (see Table 6, ``Total Form I-601A Receipts--All Other
Immigrants'' column), while qualitatively discussing the rule's
potential impact on immediate relatives of U.S. citizens who would now
qualify for provisional waivers under this proposed rule.
---------------------------------------------------------------------------
\40\ ``All other immigrant visa applicants'' encompass the
following immigrant visa categories: Family-sponsored, employment-
based, diversity, and certain special immigrants.
---------------------------------------------------------------------------
Costs
Applicants from the expanded population of aliens who are newly
eligible to apply for a provisional waiver under this proposed rule
would bear the costs of this regulation. Certain immediate relatives of
U.S. citizens already eligible to apply for a provisional waiver would
not incur costs from this rule.\41\ Although the waiver expansion may
require USCIS to expend resources on additional adjudication personnel,
associated equipment (e.g., computers and telephones), and related
occupancy demands, USCIS expects these costs to be offset by the
additional fee revenue collected from the $585 Form I-601A filing fee
and the $85 biometric services fee.\42\ Accordingly, DHS does not
believe that this rule would impose additional net costs on the agency.
---------------------------------------------------------------------------
\41\ See 78 FR 536 (Jan. 3, 2013).
\42\ Fee information gathered from USCIS, ``I-601A, Application
for Provisional Unlawful Presence Waiver,'' available at https://www.uscis.gov/i-601a (last updated Mar. 3, 2015). The $585 Form I-
601A filing fee and the $85 biometric services fee are subject to
change through the normal fee review cycle and any subsequent
rulemaking issued by USCIS. USCIS will consider the impact of the
provisional waiver and biometrics process workflows and resource
requirements as a normal part of its biennial fee review. The
biennial fee review determines if fees for immigration benefits are
sufficient in light of resource needs and filing trends. See INA
section 286(m), 8 U.S.C. 1356(m).
---------------------------------------------------------------------------
To receive a provisional waiver under this rule, eligible aliens
must first complete a Form I-601A and submit it to USCIS with its $585
filing fee and $85 biometric services fee. DHS estimates the time
burden of completing Form I-601A to be 1.5 hours, which translates to a
time, or opportunity, cost of $15.89 per application.\43\ DHS
calculates the Form I-601A application's opportunity cost to aliens by
first multiplying the current Federal minimum wage of $7.25 per hour by
1.46 to account for the full cost of employee benefits (such as paid
leave, insurance, and retirement), which results in a time value of
$10.59 per hour.\44\ Then, DHS multiplies the $10.59 hourly time value
by the current 1.5-hour Form I-601A completion time burden to determine
the opportunity cost for aliens to complete Form I-601A ($15.89). DHS
recognizes that the aliens impacted by the rule are generally
unlawfully present and not eligible to work; however, consistent with
other DHS rulemakings, DHS uses wage rates as a mechanism to estimate
the opportunity costs to aliens associated with completing this rule's
required application and biometrics collection. The cost for aliens to
initially file a Form I-601A, including only the $585 filing fee and
opportunity cost, equals $600.89.
---------------------------------------------------------------------------
\43\ See 79 FR 36543 (June 27, 2014) for the estimated Form I-
601A completion time burden.
\44\ Federal minimum wage information gathered from the U.S.
Department of Labor, Wage and Hour Division, available at https://www.dol.gov/dol/topic/wages/minimumwage.htm (last accessed Mar. 5,
2015). Employer benefits adjustment information gathered from the
U.S. Department of Labor, Bureau of Labor Statistics. ``Economic
News Release, Table 1. Employer costs per hour worked for employee
compensation and costs as a percent of total compensation: Civilian
workers, by major occupational and industry group, September 2014.''
Dec. 10, 2015, available at https://www.bls.gov/news.release/ecec.htm.
---------------------------------------------------------------------------
After USCIS receives an alien's completed Form I-601A and its
filing and biometric services fees, the agency sends the alien a notice
scheduling him or her to visit a USCIS Application Support Center (ASC)
for biometrics collection. Along with an $85 biometric services fee,
the applicant would incur the following costs to comply with the
provisional waiver's biometrics submission requirement: the opportunity
cost of traveling to an ASC, the opportunity cost of submitting his or
her biometrics, and the mileage cost of traveling to an ASC. While
travel times and distances vary, DHS estimates that an applicant's
average roundtrip distance to an ASC is 50 miles, and that the average
time for that trip is 2.5 hours. DHS estimates that an alien waits an
average of 1.17 hours for service and to have his or her biometrics
collected at an ASC, adding up to a total biometrics-related time
burden of 3.67 hours.\45\ By applying the $10.59 hourly time value for
aliens to the total biometrics-related time burden, DHS finds that the
opportunity cost for a provisional waiver applicant to travel to and
from an ASC, and to submit biometrics, would total $38.87.\46\ In
addition to the opportunity cost of providing biometrics, provisional
waiver applicants would experience travel costs related to biometrics
collection. The cost of such travel would equal $28.75 per trip, based
on the 50-mile roundtrip distance to an ASC and the General Services
Administration's (GSA) travel rate of $0.575 per mile.\47\ DHS assumes
that each alien would travel independently to an ASC to submit his or
her biometrics, meaning that this rule would impose a time cost on each
of these applicants. Adding the fee, opportunity, and travel costs of
biometrics collection together, DHS estimates that the provisional
waiver's requirement to submit biometrics would cost a total of $152.62
per Form I-601A filing.
---------------------------------------------------------------------------
\45\ See 79 FR 36543 (June 27, 2014) for Form I-601A biometrics
collection time burden.
\46\ 3.67 hours multiplied by $10.59 per hour equals $38.87.
\47\ 50 miles multiplied by $0.575 per mile equals $28.75. See
79 FR 78437 (Dec. 30, 2014) for GSA mileage rate.
---------------------------------------------------------------------------
Once all of the aforementioned fee, time, and travel costs to
comply with the provisional waiver's requirements are accounted for,
DHS finds that each Form I-601A filing would cost an alien $753.51.
Table 7 shows that the overall cost of this rule to the expanded
population of provisional waiver applicants (namely, non-immediate
relatives of U.S. citizens and LPRs) would measure $84.5 million
(undiscounted) over the 10-year period of analysis. DHS calculates this
rule's total cost to applicants by multiplying
[[Page 43351]]
the individual cost of completing the provisional waiver application
requirements ($753.51) by the number of newly eligible aliens projected
to apply for provisional waivers each year following the implementation
of this rule (listed in Table 6). In present value terms, this rule
would cost newly eligible non-immediate relative waiver applicants
$58.5 million to $71.6 million across a 10-year period, depending on
the discount rate applied (see Table 7). Because this rule would not
generate any net costs to USCIS, Table 7 also illustrates the total
cost of this rule.
Table 7--Total Cost of This Rule to Non-Immediate Relative Applicants
------------------------------------------------------------------------
Total waiver
Fiscal year cost to
applicants
------------------------------------------------------------------------
Year 1.................................................. $7,539,621
Year 2.................................................. 7,727,999
Year 3.................................................. 7,921,651
Year 4.................................................. 8,119,824
Year 5.................................................. 8,322,518
Year 6.................................................. 8,530,487
Year 7.................................................. 8,743,730
Year 8.................................................. 8,962,248
Year 9.................................................. 9,186,794
Year 10................................................. 9,415,861
---------------
10-Year Total: Undiscounted......................... 84,470,732
10-Year Total: Present Value, Discounted at 3 71,622,948
percent............................................
10-Year Total: Present Value, Discounted at 7 58,520,192
percent............................................
------------------------------------------------------------------------
Notes: Estimates may not sum to total due to rounding. The cost
estimates in this table are contingent upon Form I-601A filing (or
receipt) projections as well as the discount rates applied.
DHS welcomes any public comments on the costs of this proposed
rule.
Benefits
The benefits of this proposed rule are largely the result of
streamlining the immigrant visa process for an expanded population of
aliens who are inadmissible to the United States solely due to unlawful
presence. For those aliens who are newly eligible for a provisional
waiver and their U.S. citizen or LPR family members, the primary
benefits of this rule are its reduced separation time among family
members during the immigrant visa process for aliens granted waivers
and improved predictability of the immigrant visa process. Instead of
attending multiple immigrant visa interviews and waiting abroad while
USCIS adjudicates a waiver application as required under the Form I-601
waiver process, the provisional waiver process allows aliens to file a
provisional waiver application and remain in the United States while it
is adjudicated by USCIS. This process generally allows eligible
provisional waiver applicants to stay with their family members in the
United States while awaiting adjudication and to receive advance notice
of USCIS's decision on their waiver application prior to leaving the
United States for their immigrant visa interview abroad. Although DHS
cannot estimate with precision the exact amount of separation time
families would save through this rule, DHS estimates that some newly
eligible provisional waiver applicants and their U.S. citizen or LPR
family members could experience several months of reduced separation
time based on the average adjudication time for Form I-601 waiver
applications.\48\ In addition to the humanitarian and emotional
benefits derived from reduced separation of families, DHS anticipates
that the shortened periods of family separation resulting from this
rule may lessen the financial burden U.S. citizens and LPRs face to
support their relatives while they remain outside of the country.
Because of data limitations, however, DHS cannot predict the exact
financial impact of this change.
---------------------------------------------------------------------------
\48\ The average adjudication time of Form I-601 waivers is
currently five months based on information gathered from USCIS's
Nebraska Service Center on March 3, 2015. Updated processing times
for Form I-601 are also posted on the USCIS Web site at: https://egov.uscis.gov/cris/processTimesDisplayInit.do.
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Due to the unique nature of the Diversity Visa program, aliens
seeking an immigrant visa through that program and wishing to use the
provisional waiver process are likely to enjoy fewer overall benefits
from this rule than other non-immediate relative immigrant visa and
waiver applicants. Although an alien may be selected to participate in
the Diversity Visa program, he or she may not ultimately receive an
immigrant visa due to visa unavailability. Under this proposed rule,
Diversity Visa selectees and their derivatives who wish to use the
provisional waiver process may file a waiver application in advance of
knowing whether their immigrant visa will ultimately be available to
them. For those provisional waiver applicants pursuing the Diversity
Visa track, the risk of completing the provisional waiver process
without being issued a visa is higher compared to applicants of other
immigrant visa categories filing Form I-601A.\49\ If a Diversity Visa
program selectee's provisional waiver is approved but he or she is not
ultimately issued an immigrant visa, he or she would incur the costs
but not the benefits associated with a provisional waiver.
---------------------------------------------------------------------------
\49\ There is a statutory maximum of only 55,000 diversity visas
authorized for allocation each fiscal year, but this number is
reduced by up to 5,000 visas set aside exclusively for use under the
Nicaraguan and Central American Relief Act. See NACARA section
203(d), as amended. DOS regularly selects more than 50,000 entrants
to proceed on to the next step for diversity visa processing to
ensure that all of the 50,000 diversity visas are allotted. Source:
U.S. Department of State, Office of the Spokesman. Special Briefing:
Senior State Department Official on the Diversity Visa Program. May
13, 2011, available at https://www.state.gov/r/pa/prs/ps/2011/05/166811.htm.
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Although the main benefits of this rule would center on the
expanded group of aliens newly eligible to apply for provisional
waivers, certain immediate relatives of U.S. citizens may also
experience benefits from this rule. Through this rulemaking, DHS
proposes to allow LPR spouses and parents, in addition to currently
eligible U.S. citizen spouses and parents, to serve as qualifying
relatives for the provisional waiver's extreme hardship determination.
This change may allow some immediate relatives of U.S. citizens
(included in Table 5's inadmissible immediate relative estimates) to
now qualify for a provisional waiver, although the exact number of
individuals who would benefit from this change is unknown due to data
limitations.
Based on USCIS and DOS efficiencies realized as a result of the
current provisional waiver process, DHS believes that this rule could
provide additional Federal Government efficiencies through its
expansion to a larger population of aliens. As previously described in
the 2013 rule, the provisional waiver process allows USCIS to
communicate to DOS the status of an unlawful presence inadmissibility
waiver prior to a waiver applicant's immigrant visa interview abroad.
Such early communication eliminates the current need for USCIS and DOS
to transfer cases repeatedly between the two agencies when adjudicating
an immigrant visa application and Form I-601 waiver application.\50\
Through the provisional waiver process, DOS receives advance
notification from USCIS of the discretionary decision to provisionally
waive the unlawful presence inadmissibility bar, which allows for
better allocation of valuable agency
[[Page 43352]]
resources like time, storage space, and human capital.
---------------------------------------------------------------------------
\50\ See 78 FR 536 (Jan. 3, 2013).
---------------------------------------------------------------------------
DHS welcomes any public comments on the benefits of this proposed
rule.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996, Public Law 104-121 (Mar. 29, 1996), requires Federal agencies to
consider the potential impact of regulations on small businesses, small
governmental jurisdictions, and small organizations during the
development of their rules. The term ``small entities'' comprises small
businesses, not-for-profit organizations that are independently owned
and operated and are not dominant in their fields, and governmental
jurisdictions with populations of less than 50,000. DHS has reviewed
this regulation in accordance with the Regulatory Flexibility Act and
certifies that this rule would not have a significant economic impact
on a substantial number of small entities. The factual basis for this
determination is that this rule directly regulates individuals, who are
not, for purposes of the Regulatory Flexibility Act, within the
definition of small entities established by 5 U.S.C. 601(6).
E. Executive Order 13132
This proposed rule would not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
F. Executive Order 12988 Civil Justice Reform
Section 3(c) of Executive Order 12988 requires Executive agencies
to review regulations in light of applicable standards in section 3(a)
and section 3(b) to determine whether they are met or it is
unreasonable to meet one or more of them. DHS has completed the
required review and determined that, to the extent permitted by law,
this rule meets the relevant standards of Executive Order 12988.
G. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Public Law 104-13,
Departments are required to submit to the Office of Management and
Budget (OMB), for review and approval, any reporting requirements
inherent in a rule. This rule proposes a revision to the Application
for a Provisional Unlawful Presence Waiver, Form I-601A, OMB Control
Number 1615-0123. USCIS estimates that approximately 10,258 new
respondents would file applications for provisional waivers as a result
of the changes proposed by this rule.
DHS is requesting comments on the revisions it is proposing to make
to this information collection until September 21, 2015.
In accordance with the Paperwork Reduction Act (PRA) of 1995, the
information collection notice is published in the Federal Register to
obtain comments regarding the nature of the information collection, the
categories of respondents, the estimated burden (i.e., the time,
effort, and resources used by the respondents to respond), the
estimated cost to the respondent, and the actual information collection
instruments. When submitting comments on this information collection,
your comments should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
Overview of This Information Collection
(1) Type of Information Collection: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: Application for Provisional
Unlawful Presence Waiver.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: I-601A; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households:
Individuals who: (a) Are immigrant visa applicants, including: (1)
Immediate relatives of U.S. citizens, (2) aliens seeking to immigrate
under a family-sponsored, employment-based, or special immigrant visa
category, and (3) Diversity Visa selectees and derivatives, and (b) are
applying from within the United States for a provisional waiver under
INA section 212(a)(9)(B)(v) before obtaining an immigrant visa abroad.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection I-601A is
52,965 and the estimated hour burden per response is 1.5 hours; and
52,965 respondents providing biometrics at 1.17 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 141,417 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $1,497,601.
List of Subjects
8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies), Freedom of information, Privacy, Reporting and
recordkeeping requirements, Surety bonds.
8 CFR Part 212
Administrative practice and procedure, Aliens, Immigration,
Passports and visas, Reporting and recordkeeping requirements.
Accordingly, DHS proposes to amend chapter I of title 8 of the Code
of Federal Regulations as follows:
PART 103--IMMIGRATION BENEFITS; BIOMETRIC REQUIREMENTS;
AVAILABILITY OF RECORDS
0
1. The authority citation for part 103 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304,
1356; 31 U.S.C. 9701; Pub. L. 107-296, 116 Stat. 2135; 6 U.S.C. 1 et
seq.; E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166; 8
CFR part 2; Pub. L. 112-54.
Sec. 103.2 [Amended]
0
2. Section 103.2 is amended by:
[[Page 43353]]
0
a. In paragraphs (a)(2) and (3) and (b)(6) and (10) by removing ``an
benefit request'' and adding in its place ``a benefit request'',
wherever it appears; and
0
b. In paragraph (b)(12) by removing ``An benefit request'' and adding
in its place ``A benefit request'', wherever it appears.
PART 212--DOCUMENTARY REQUIREMENTS; NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
0
3. The authority citation for part 212 continues to read as follows:
Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note,
1184, 1187, 1223, 1225, 1226, 1227, 1255, 1359; 8 U.S.C. 1185 note
(section 7209 of Pub. L. 108-458); 8 CFR part 2. Section 212.1(q)
also issued under section 702, Public Law 110-229, 122 Stat. 754,
854.
0
4. Amend Sec. 212.7 by:
0
a. Removing the heading for paragraph (a);
0
b. Revising paragraphs (e) heading and introductory text and (e)(3)(i),
(ii), (iii), (iv), (v), and (vi);
0
c. Remove paragraph (e)(3)(vii); and
0
d. Revising paragraphs (e)(4)(iii), (iv), (v), and (vi), (e)(5)(i),
(e)(5)(ii)(E), (F), and (G), (e)(6)(ii), (e)(7), (8), (9), and (10),
(e)(12)(i)(C), (e)(12)(ii), and (e)(14)(i), (iii), and (iv).
The revisions read as follows:
Sec. 212.7 Waivers of certain grounds of inadmissibility.
* * * * *
(e) Provisional unlawful presence waivers of inadmissibility. The
provisions of this paragraph (e) apply to certain aliens who are
pursuing consular immigrant visa processing.
* * * * *
(3) * * *
(i) Is present in the United States at the time of filing the
application for a provisional unlawful presence waiver;
(ii) Provides biometrics to USCIS at a location in the United
States designated by USCIS;
(iii) Upon departure, would be inadmissible only under section
212(a)(9)(B)(i) of the Act at the time of the immigrant visa interview;
(iv) Has a case pending with the Department of State, based on:
(A) An approved immigrant visa petition, for which the Department
of State immigrant visa processing fee has been paid; or
(B) Selection by the Department of State to participate in the
Diversity Visa Program under section 203(c) of the Act for the fiscal
year for which the alien registered;
(v) Will depart from the United States to obtain the immigrant
visa; and
(vi) Meets the requirements for a waiver provided in section
212(a)(9)(B)(v) of the Act.
(4) * * *
(iii) The alien does not have a case pending with the Department of
State, based on:
(A) An approved immigrant visa petition, for which the Department
of State immigrant visa processing fee has been paid; or
(B) Selection by the Department of State to participate in the
Diversity Visa program under section 203(c) of the Act for the fiscal
year for which the alien registered;
(iv) The Department of State initially acted to schedule the
immigrant visa interview:
(A) Before January 3, 2013, for an immediate relative of a U.S.
citizen with an approved immediate relative petition on which a
provisional unlawful presence waiver is based, even if the interview
was cancelled or rescheduled on or after January 3, 2013; or
(B) For all other immigrant visa applicants, before [EFFECTIVE DATE
OF FINAL RULE], for the approved immigrant visa petition or the
Diversity Visa program application on which a provisional unlawful
presence waiver is based, even if the interview was cancelled or
rescheduled on or after [EFFECTIVE DATE OF FINAL RULE];
(v) The alien is in removal proceedings, unless the removal
proceedings are administratively closed and have not been recalendared
at the time of filing the application for a provisional unlawful
presence waiver;
(vi) The alien is subject to a final order of removal issued under
section 217, 235, 238, or 240 of the Act or a final order of exclusion
or deportation under former section 236 or 242 of the Act (pre-April 1,
1997), or any other provision of law (including an in absentia removal
order under section 240(b)(5) of the Act);
* * * * *
(5) Filing. (i) An application for a provisional unlawful presence
waiver of the unlawful presence inadmissibility bars under section
212(a)(9)(B)(i)(I) or (II) of the Act, including an application by an
alien in removal proceedings that are administratively closed and have
not been recalendared at the time of filing the application for a
provisional unlawful presence waiver, must be filed in accordance with
8 CFR part 103 and on the form designated by USCIS. The prescribed fee
under 8 CFR 103.7(b)(1) and supporting documentation must be submitted
in accordance with the form instructions.
(ii) * * *
(E) Does not include evidence of:
(1) An approved immigrant visa petition;
(2) Selection by the Department of State to participate in the
Diversity Visa Program under section 203(c) of the Act for the fiscal
year for which the alien registered; or
(3) Eligibility as a derivative beneficiary of an approved
immigrant visa petition or of an alien selected for participation in
the Diversity Visa Program as provided in this section and outlined in
section 203(d) of the Act.
(F) Fails to include documentation evidencing:
(1) That the alien has paid the immigrant visa processing fee to
the Department of State for the immigrant visa application upon which
the alien's approved immigrant visa petition is based; or
(2) In the case of a Diversity immigrant, that the Department of
State selected the alien to participate in the Diversity Visa Program
for the fiscal year for which the alien registered; or
(G) Has indicated on a provisional unlawful presence waiver
application that the Department of State initially acted to schedule
the immigrant visa interview:
(1) Before January 3, 2013, for an immediate relative of a U.S.
citizen with an approved immediate relative petition on which a
provisional unlawful presence waiver is based, even if the interview
was cancelled or rescheduled on or after January 3, 2013; or
(2) For all other immigrant visa applicants, before [EFFECTIVE DATE
OF FINAL RULE], for the approved immigrant visa petition or the
Diversity Visa Program application upon which a provisional unlawful
presence waiver is based, even if the interview was cancelled or
rescheduled on or after [EFFECTIVE DATE OF FINAL RULE].
(6) * * *
(ii) Failure to appear for biometric services. If an alien fails to
appear for a biometric services appointment or fails to provide
biometrics in the United States as directed by USCIS, a provisional
unlawful presence waiver application will be considered abandoned and
denied under 8 CFR 103.2(b)(13). The alien may not appeal or file a
motion to reopen or reconsider an abandonment denial under 8 CFR 103.5.
(7) Burden and standard of proof. The alien has the burden to
establish, by a preponderance of the evidence, eligibility for a
provisional unlawful presence waiver as described in this paragraph,
and under section 212(a)(9)(B)(v) of the Act, including that
[[Page 43354]]
the alien merits a favorable exercise of discretion.
(8) Adjudication. USCIS will adjudicate a provisional unlawful
presence waiver application in accordance with this paragraph and
section 212(a)(9)(B)(v) of the Act. If USCIS finds that the alien is
not eligible for a provisional unlawful presence waiver, or if USCIS
determines in its discretion that a waiver is not warranted, USCIS will
deny the waiver application. Notwithstanding 8 CFR 103.2(b)(16), USCIS
may deny an application for a provisional unlawful presence waiver
without prior issuance of a request for evidence or notice of intent to
deny.
(9) Notice of decision. USCIS will notify the alien and the alien's
attorney of record or accredited representative of the decision in
accordance with 8 CFR 103.2(b)(19). USCIS may notify the Department of
State of the denial of an application for a provisional unlawful
presence waiver. A denial is without prejudice to the alien's filing
another provisional unlawful presence waiver application under this
paragraph (e), provided the alien meets all of the requirements in this
part, including that the alien's case must be pending with the
Department of State. An alien also may elect to file a waiver
application under paragraph (a)(1) of this section after departing the
United States, appearing for his or her immigrant visa interview at the
U.S. Embassy or consulate abroad, and after the Department of State
determines the alien's admissibility and eligibility for an immigrant
visa. Accordingly, denial of an application for a provisional unlawful
presence waiver is not a final agency action for purposes of section
10(c) of the Administrative Procedure Act, 5 U.S.C. 704.
(10) Withdrawal of waiver applications. An alien may withdraw his
or her application for a provisional unlawful presence waiver at any
time before USCIS makes a final decision. Once the case is withdrawn,
USCIS will close the case and notify the alien and his or her attorney
or accredited representative. The alien may file a new application for
a provisional unlawful presence waiver, in accordance with the form
instructions and required fees, provided that the alien meets all of
the requirements included in this paragraph (e).
* * * * *
(12) * * *
(i) * * *
(C) Is determined to be otherwise eligible for an immigrant visa by
the Department of State in light of the approved provisional unlawful
presence waiver.
(ii) Waives the alien's inadmissibility under section 212(a)(9)(B)
of the Act only for purposes of the application for an immigrant visa
and admission to the United States as an immigrant based on the
approved immigrant visa petition upon which a provisional unlawful
presence waiver application is based or selection by the Department of
State to participate in the Diversity Visa Program under section 203(c)
of the Act for the fiscal year for which the alien registered, with
such selection being the basis for the alien's provisional unlawful
presence waiver application;
* * * * *
(14) * * *
(i) The Department of State determines at the time of the immigrant
visa interview that the alien is ineligible to receive an immigrant
visa for any reason other than under section 212(a)(9)(B)(i)(I) or (II)
of the Act;
* * * * *
(iii) The immigrant visa registration is terminated in accordance
with section 203(g) of the Act, and has not been reinstated in
accordance with section 203(g) of the Act; or
(iv) The alien, at any time before or after approval of a
provisional unlawful presence waiver or before an immigrant visa is
issued, reenters or attempts to reenter the United States without being
inspected and admitted or paroled.
Jeh Charles Johnson,
Secretary.
[FR Doc. 2015-17794 Filed 7-21-15; 8:45 am]
BILLING CODE 9111-97-P
