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Fed Reg Final Rule-Provisional Waivers

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					                                                                                              Vol. 78                           Thursday,
                                                                                              No. 2                             January 3, 2013




                                                                                              Part III


                                                                                              Department of Homeland Security
                                                                                              8 CFR Parts 103 and 212
                                                                                              Provisional Unlawful Presence Waivers of Inadmissibility for Certain
                                                                                              Immediate Relatives; Final Rule
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                                        536                Federal Register / Vol. 78, No. 2 / Thursday, January 3, 2013 / Rules and Regulations

                                        DEPARTMENT OF HOMELAND                                  Department of Homeland Security, 20                    cannot apply for the waiver until after
                                        SECURITY                                                Massachusetts Avenue NW.,                              their immigrant visa interviews abroad.
                                                                                                Washington, DC 20529–2099,                             As a result, these immediate relatives
                                        8 CFR Parts 103 and 212                                 Telephone (202) 272–1470 (this is not a                must remain outside of the United
                                        [CIS No. 2519–2011; DHS Docket No.                      toll free number).                                     States, separated from their U.S. citizen
                                        USCIS–2012–0003]                                                                                               spouses, parents, or children, while
                                                                                                Table of Contents
                                                                                                                                                       USCIS adjudicates their waiver
                                        RIN 1615–AB99                                           I. Executive Summary                                   applications. In some cases, waiver
                                                                                                   A. Purpose of the Regulatory Action                 application processing can take well
                                        Provisional Unlawful Presence Waivers                      B. Summary of the Major Provisions of the           over one year, prolonging the separation
                                        of Inadmissibility for Certain                                Regulatory Action
                                                                                                                                                       of these immediate relatives from their
                                        Immediate Relatives                                        C. Costs and Benefits
                                                                                                II. Legal Authority                                    U.S. citizen spouses, parents, and
                                        AGENCY: U.S. Citizenship and                            III. Background                                        children. In addition, the action
                                        Immigration Services, DHS.                                 A. Notice of Intent                                 required for these immediate relatives to
                                        ACTION: Final rule.                                        B. Proposed Rule                                    obtain LPR status in the United States—
                                                                                                   C. Final Rule                                       departure from the United States to
                                        SUMMARY: On April 2, 2012, U.S.                         IV. Public Comments on Proposed Rule                   apply for an immigrant visa at a DOS
                                        Citizenship and Immigration Services                       A. Summary of Public Comments                       consulate abroad—is the very action
                                                                                                   B. Legal Authority To Implement the
                                        (USCIS) published a proposed rule to                                                                           that triggers the unlawful presence
                                                                                                      Provisional Unlawful Presence Waiver
                                        amend its regulations to allow certain                        Process                                          inadmissibility grounds under section
                                        immediate relatives of U.S. citizens who                   C. Eligibility for the Provisional Unlawful         212(a)(9)(B)(i) of the Immigration and
                                        are physically present in the United                          Presence Waiver                                  Nationality Act (INA), 8 U.S.C.
                                        States to request provisional unlawful                     D. Filing Requirements and Fees                     1182(a)(9)(B)(i). As a result of the often
                                        presence waivers prior to departing                        E. Adjudication                                     lengthy processing times and
                                        from the United States for consular                        F. Denials, Motions To Reopen or                    uncertainty about whether they qualify
                                                                                                      Reconsider, and Appeals                          for a waiver of the unlawful presence
                                        processing of their immigrant visa
                                                                                                   G. Effect of Pending or Approved
                                        applications. This final rule implements                                                                       inadmissibility grounds, many
                                                                                                      Provisional Unlawful Presence Waivers
                                        the provisional unlawful presence                          H. Automatic Revocation                             immediate relatives who may qualify for
                                        waiver process. It also finalizes                          I. Comments on Form I–601A, Application             an immigrant visa are reluctant to
                                        clarifying amendments to other                                for Provisional Unlawful Presence                proceed abroad to seek an immigrant
                                        provisions within our regulations. The                        Waiver                                           visa.
                                        Department of Homeland Security                            J. Miscellaneous Comments
                                                                                                   K. Comments on Executive Orders 12866/              2. Provisional Unlawful Presence
                                        (DHS) anticipates that these changes                                                                           Waiver Process
                                                                                                      13563 Analysis
                                        will significantly reduce the length of                 V. Regulatory Amendments
                                        time U.S. citizens are separated from                                                                             Through this final rule, DHS is
                                                                                                VI. Statutory and Regulatory Requirements              changing its current process for the
                                        their immediate relatives who engage in                    A. Unfunded Mandates Reform Act of 1995
                                        consular processing abroad. DHS also                                                                           filing and adjudication of certain
                                                                                                   B. Small Business Regulatory Enforcement
                                        believes that this new process will                           Fairness Act of 1996
                                                                                                                                                       waivers of inadmissibility for eligible
                                        reduce the degree of interchange                           C. Executive Orders 12866 (Regulatory               immediate relatives of U.S. citizens,
                                        between the U.S. Department of State                          Planning and Review) and 13563                   who are physically present in the
                                                                                                      (Improving Regulation and Regulatory             United States but will proceed abroad to
                                        (DOS) and USCIS and create greater
                                                                                                      Review)                                          obtain their immigrant visas. The new
                                        efficiencies for both the U.S.                             D. Executive Order 13132                            waiver process will allow eligible
                                        Government and most provisional                            E. Executive Order 12988 Civil Justice              immediate relatives to apply for a
                                        unlawful presence waiver applicants.                          Reform                                           provisional unlawful presence waiver
                                           DHS reminds the public that the filing                  F. Paperwork Reduction Act
                                                                                                                                                       while they are still in the United States
                                        or approval of a provisional unlawful                      G. Regulatory Flexibility Act
                                                                                                                                                       and before they leave to attend their
                                        presence waiver application will not:
                                                                                                SUPPLEMENTARY INFORMATION:                             immigrant visa interview abroad. DHS
                                        Confer any legal status, protect against
                                                                                                                                                       anticipates that this new provisional
                                        the accrual of additional periods of                    I. Executive Summary
                                                                                                                                                       unlawful presence waiver process will
                                        unlawful presence, authorize an alien to
                                                                                                A. Purpose of the Regulatory Action                    significantly reduce the time that U.S.
                                        enter the United States without securing
                                                                                                                                                       citizens are separated from their
                                        a visa or other appropriate entry                       1. Need for the Regulatory Action
                                                                                                                                                       immediate relatives. USCIS’s approval
                                        document, convey any interim benefits                      Certain spouses, children, and parents              of an applicant’s provisional unlawful
                                        (e.g., employment authorization, parole,                of U.S. citizens (immediate relatives)                 presence waiver prior to departure also
                                        or advance parole), or protect an alien                 who are in the United States are not                   will allow the DOS consular officer to
                                        from being placed in removal                            eligible to apply for lawful permanent                 issue the immigrant visa without further
                                        proceedings or removed from the United                  resident (LPR) status while in the                     delay, if there are no other grounds of
                                        States in accordance with current DHS                   United States. Instead, these immediate                inadmissibility and if the immediate
                                        policies governing initiation of removal                relatives must travel abroad to obtain an              relative is otherwise eligible to be issued
                                        proceedings and the use of prosecutorial                immigrant visa from the Department of                  an immigrant visa.
                                        discretion.                                             State (DOS) to return to the United
                                        DATES: This final rule is effective                     States to request admission as an LPR,                 3. Legal Authority
                                        March 4, 2013.                                          and, in many cases, also must request                     The Homeland Security Act of 2002,
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                                        FOR FURTHER INFORMATION CONTACT:                        from the Department of Homeland                        Public Law 107–296 (Homeland
                                        Roselyn Brown-Frei, Office of Policy                    Security (DHS) a waiver of                             Security Act of 2002), section 102, 116
                                        and Strategy, Residence and                             inadmissibility as a result of their                   Stat. 2135, 6 U.S.C. 112, and INA
                                        Naturalization Division, U.S.                           unlawful presence in the United States.                section 103, 8 U.S.C. 1103, charge the
                                        Citizenship and Immigration Services,                   Currently, these immediate relatives                   Secretary of Homeland Security


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                                                           Federal Register / Vol. 78, No. 2 / Thursday, January 3, 2013 / Rules and Regulations                                             537

                                        (Secretary) with the administration and                 and (i), 8 U.S.C. 1182(h) and (i). DHS                 unlawful presence waiver process and
                                        enforcement of the immigration and                      agrees and has revised the amendment                   its operational impact, DHS, in
                                        naturalization laws. The Secretary is                   to 8 CFR 212.7(a)(4) to clarify that                   consultation with DOS and other
                                        implementing this provisional unlawful                  automatic revocation of approved                       affected agencies, will consider
                                        presence waiver process under the                       waivers upon termination of conditional                expanding the provisional unlawful
                                        broad authority to administer DHS and                   resident status only applies to approved               presence waiver process to other
                                        the authorities provided under the                      waivers based on INA sections 212(h), 8                categories.
                                        Homeland Security Act of 2002, the                      U.S.C. 1182(h) (waivers for certain
                                                                                                                                                       6. Former Section 212.7(e)(4)(ii)(H)
                                        immigration and nationality laws, and                   criminal offenses), and INA section
                                        other delegated authority. The                          212(i), 8 U.S.C. 1182(i) (waivers for                     DHS initially proposed to reject a
                                        Secretary’s discretionary authority to                  fraud or willful misrepresentation of a                provisional unlawful presence waiver
                                        waive the ground of inadmissibility for                 material fact). See section                            application if an alien has not indicated
                                        unlawful presence can be found in INA                   212.7(a)(4)(iv).                                       on the application that the qualifying
                                        section 212(a)(9)(B)(v), 8 U.S.C.                                                                              relative is a U.S. citizen spouse or
                                                                                                3. Section 212.7(e)(1)                                 parent. See 77 FR at 19922. DHS has
                                        1182(a)(9)(B)(v). The regulation
                                        governing certain inadmissibility                          During discussions about the                        determined that this criterion is more
                                        waivers is 8 CFR 212.7. The fee                         proposed provisional unlawful presence                 appropriate for an adjudicative decision
                                        schedule for provisional unlawful                       waiver process and how it would affect                 and that this assessment should not be
                                        presence waiver applications is found at                aliens in removal proceedings, a                       made through a review during the
                                        8 CFR 103.7(b)(1)(i)(AA).                               question arose regarding the authority of              intake process. Thus, DHS has deleted
                                                                                                Department of Justice (DOJ), Executive                 this rejection criterion in the final rule.
                                        B. Summary of the Major Provisions of                   Office for Immigration Review (EOIR)
                                        the Regulatory Action                                                                                          7. Section 212.7(e)(4)(iv)
                                                                                                immigration judges (IJs) and whether IJs
                                          On April 2, 2012, U.S. Citizenship                    would adjudicate Forms I–601A for                         DHS proposed excluding aliens from
                                        and Immigration Services (USCIS)                        aliens in removal proceedings. DHS                     the provisional unlawful presence
                                        published a Notice of Proposed                          determined that it would be more                       waiver process who were already
                                        Rulemaking (NPRM), which outlined                       efficient and appropriate to have Form                 scheduled for their immigrant visa
                                        the provisional unlawful presence                       I–601A waivers centralized and                         interviews with DOS. See 77 FR at
                                        waiver process. See Provisional                         adjudicated by one agency, USCIS,                      19921. DHS has retained this
                                        Unlawful Presence Waivers of                            especially given the intended                          requirement. DHS now adds language to
                                        Inadmissibility for Certain Immediate                   streamlined nature of the process and                  the final rule to clarify when an alien is
                                        Relatives, 77 FR 19902 (April 2, 2012).                 the need for close coordination with                   ineligible for a provisional unlawful
                                        After careful consideration of the public               DOS once a waiver is decided. DHS                      presence waiver because of a previously
                                        comments, DHS adopts most of the                        therefore added a new paragraph to                     scheduled immigrant visa interview.
                                        proposed regulatory amendments                          clarify that the Application for                          USCIS will first look at whether the
                                        without change, except for the                          Provisional Unlawful Presence Waiver,                  scheduled immigrant visa interview is
                                        provisions noted below:                                 Form I–601A, will be filed only with                   based on the approved immediate
                                                                                                USCIS, even if an alien is in removal                  relative petition (I–130 or I–360) that
                                        1. Section 103.7(c)(3)(i)                                                                                      accompanies the Form I–601A. If it is,
                                                                                                proceedings before EOIR. See section
                                           In the proposed rule, DHS noted in                   212.7(e)(1).                                           USCIS will then look at the Department
                                        the supplementary text that applicants                                                                         of State’s Consular Consolidated
                                        for a provisional unlawful presence                     4. Section 212.7(e)(2)                                 Database (CCD) to determine the date on
                                        waiver cannot seek a fee waiver for the                    DHS restructured this provision and                 which the Department of State initially
                                        Form I–601A filing fees or the required                 added language to make clear that                      acted to schedule the applicant for his
                                        biometric fees. See 77 FR at 19910. DHS                 approval of the provisional unlawful                   or her immigrant visa interview (i.e., the
                                        incorrectly referenced proposed                         presence waiver is discretionary and                   date of scheduling itself and not the
                                        regulatory text at 8 CFR 103.7(b)(1)(i)(C)              does not constitute a grant of any lawful              date and time the applicant must appear
                                        and inadvertently omitted the correct                   immigration status or create a period of               for the interview).
                                        citation to the regulatory provision                    stay authorized by the Secretary for                      If the date that the Department of
                                        being amended and the amendatory                        purposes of INA section 212(a)(9)(B), 8                State initially acted to schedule the
                                        text. DHS has corrected this error and                  U.S.C. 1182(a)(9)(B). See section                      immigrant visa interview is prior to the
                                        has included an amendment to 8 CFR                      212.7(e)(2)(i). DHS also clarified that a              date of publication of this final rule,
                                        103.7(c)(3) in this final rule to clarify               pending or approved provisional                        January 3, 2013, then the alien is
                                        that fee waivers are not available for the              unlawful presence waiver does not                      ineligible to apply for a provisional
                                        biometric or filing fees for the Form I–                authorize any interim benefits such as                 unlawful presence waiver. If the date
                                        601A. See section 103.7(c)(3)(i).                       employment authorization or advance                    that the Department of State initially
                                                                                                parole. See section 212.7(e)(2)(ii).                   acted to schedule the immigrant visa
                                        2. Section 212.7(a)(4)(iv)                                                                                     interview is on or after the publication
                                           DHS proposed an amendment to 8                       5. Section 212.7(e)(3)                                 date of this final rule, the alien is
                                        CFR 212.7(a)(4) to provide that                            Many commenters asked DHS to                        eligible to apply for a provisional
                                        termination of an alien’s conditional                   expand eligibility for the provisional                 unlawful presence waiver. The actual
                                        LPR status also would result in                         unlawful presence waiver process to                    date and time that the alien is scheduled
                                        automatic revocation of an approved                     other categories of aliens seeking to                  to appear for the interview is not
                                        waiver of inadmissibility. See 77 FR at                 immigrate to the United States. DHS                    relevant for the eligibility
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                                        19912 and 19921. Several commenters                     considered the commenters’ suggestions                 determination. This rule applies even if
                                        noted that INA section 216(f), 8 U.S.C.                 but is limiting the provisional unlawful               the alien failed to appear for his or her
                                        1186a(f), only allows for automatic                     presence waiver to immediate relatives                 interview, cancelled the interview, or
                                        revocation of waivers of inadmissibility                of U.S. citizens. After assessing the                  requested that the interview be
                                        approved under INA sections 212(h)                      effectiveness of the new provisional                   rescheduled. Therefore, USCIS may


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                                        538                Federal Register / Vol. 78, No. 2 / Thursday, January 3, 2013 / Rules and Regulations

                                        reject or deny any Form I–601A filed by                 granted before they depart for their                     denied or withdrawn, the individual
                                        an alien who USCIS determines that the                  immigrant visa interviews to avoid                       may file a new Form I–601A, in
                                        Department of State initially acted to                  possible delays in their immigrant visa                  accordance with the form instructions
                                        schedule an initial immigrant visa                      processing or risk becoming ineligible                   and with the required fees. The
                                        interview for the approved immediate                    for the immigrant visa based on another                  applicant’s case must still be pending
                                        relative petition upon which the Form                   ground of inadmissibility. See section                   with DOS. In the case of a withdrawn
                                        I–601A is based, prior to the date of                   212.7(e)(2). Finally, DHS has made                       Form I–601A, USCIS will not refund the
                                        publication of this final rule. See section             conforming changes to the filing                         filing fees because USCIS has already
                                        212.7(e)(4)(iv).                                        requirements in section 212.7(e)(5)(i) to                undertaken steps to adjudicate the case.
                                          An alien who is ineligible to apply for               include aliens who are in removal                           Alternatively, an individual who
                                        a provisional unlawful presence waiver                  proceedings that are administratively                    withdraws his or her Form I–601A filing
                                        because of a previously scheduled                       closed and have not been recalendared                    prior to final adjudication, or whose
                                        immigrant visa interview may still                      at the time of filing the Form I–601A.1                  Form I–601A is denied, can apply for a
                                        qualify for a provisional unlawful                                                                               traditional waiver by filing Form I–601,
                                        presence waiver if he or she has a new                  9. Section 212.7(e)(4)(ix)                               Application for Waiver of Grounds of
                                        DOS immigrant visa case because (1)                        For operational reasons, DHS initially                Inadmissibility, with the USCIS
                                        DOS terminated the immigrant visa                       proposed rejecting applications filed by                 Lockbox, after he or she attends the
                                        registration associated with the                        aliens who previously filed a Form I–                    immigrant visa interview abroad and
                                        previously scheduled interview, and                     601A with USCIS. DHS designed the                        after DOS conclusively determines that
                                        they have a new immediate relative                      provisional unlawful presence waiver                     the individual is inadmissible on a
                                        petition; or (2) the alien has a new                    process to streamline waiver and                         ground(s) that is waivable. DHS,
                                        immediate relative petition filed on his                immigrant visa processing by closely                     therefore, has removed this provision
                                        or her behalf by a different petitioner.                tying adjudication of the Form I–601A                    from the final rule.
                                        8. Section 212.7(e)(4)(v)                               to the National Visa Center (NVC)
                                                                                                                                                         10. Section 212.7(e)(5)(ii)
                                                                                                immigrant visa processing schedule.
                                           DHS initially proposed excluding all                 DHS considered the potential impact of                     DHS corrected a typographical error
                                        aliens who were in removal proceedings                  multiple filings on this schedule, the                   in the prefatory language to this section,
                                        from the provisional unlawful presence                  possible delays to the immigrant visa                    removing the term ‘‘application’’ the
                                        waiver process, except those whose: (1)                 process, and the potential for agency                    second time it appears in the paragraph.
                                        Removal proceedings had been                            backlogs.                                                See section 212.7(e)(5)(ii).
                                        terminated or dismissed; (2) Notices to                    Many commenters, however,
                                        Appear (NTAs) had been cancelled; or                                                                             11. Section 212.7(e)(5)(ii)(A)
                                                                                                expressed concern that limiting the
                                        (3) removal proceedings had been                        program to one-time filings could                          DHS proposed a list of rejection
                                        administratively closed but                             potentially exclude individuals who                      criteria for Forms I–601A filed at the
                                        subsequently were reopened to grant                     otherwise would qualify for the                          Lockbox, including the criterion to
                                        voluntary departure. See 77 FR at                       provisional unlawful presence waiver.                    reject for failure to pay the required or
                                        19922. In this final rule, DHS has not                     Upon consideration of these                           correct fee for the waiver application.
                                        used the initial proposed categories of                 comments, DHS agrees that an alien                       See 77 FR at 19922. DHS inadvertently
                                        aliens above. Rather, DHS has decided                   could have compelling reasons for filing                 referenced the biometric fee as a basis
                                        to allow aliens in removal proceedings                  another provisional unlawful presence                    for rejection in the supplementary
                                        to participate in this new provisional                  application, especially in cases where                   information. See 77 FR at 19911. DHS
                                        unlawful presence waiver process if                     an alien’s circumstances have changed                    has modified the regulatory text to make
                                        their removal proceedings are                           or the alien was a victim of individuals                 clear that a Form I–601A will only be
                                        administratively closed and have not                    or entities not authorized to practice                   rejected for failure to pay the required
                                        been recalendared at the time of filing                 immigration law. DHS agrees that a one-                  or correct application filing fee and not
                                        the Form I–601A. See section                            time filing limitation is too restrictive                the biometric fee. See section
                                        212.7(e)(4)(v). Aliens whose removal                    and is removing the single filing                        212.7(e)(5)(ii)(A).
                                        proceedings are terminated or dismissed                 limitation. If an individual’s provisional
                                        are covered in the general population of                                                                         12. Section 212.7(e)(5)(ii)(G)
                                                                                                unlawful presence waiver request is
                                        aliens who are eligible to apply for a                                                                              DHS proposed rejecting provisional
                                        provisional unlawful presence waiver.                      1 DHS recognizes that this is a departure from the    unlawful presence waiver applications
                                        Aliens who have had their NTAs                          long-standing principle in immigration law and           filed by aliens who were already
                                        cancelled by ICE are also covered in the                policy that aliens must establish eligibility not only   scheduled for their immigrant visa
                                        general population of aliens who are                    at the time of filing but also up until the time USCIS   interviews with DOS. See 77 FR at
                                                                                                adjudicates the case. See, e.g., Matter of Isidro-
                                        eligible to apply for a provisional                     Zamorano, 25 I&N Dec. 829, 830–31 (BIA 2012)             19921. DHS has retained this
                                        unlawful presence waiver, since their                   (explaining the ‘‘well established’’ principle that      requirement. DHS now adds language to
                                        removal proceedings were never                          application for an immigration benefit is                the final rule to clarify when an alien is
                                        initiated through filing of an NTA with                 ‘‘continuing’’ and that eligibility is determined at     ineligible for a provisional unlawful
                                                                                                the time of adjudication, not at the time of
                                        EOIR.                                                   application). However, DHS believes that a               presence waiver because of a previously
                                           Through this final rule, the Form I–                 departure from this general principle is permissible     scheduled immigrant visa interview.
                                        601A and its accompanying                               and warranted in this limited context, especially           USCIS will first look at whether the
                                        instructions, and additional information                since the provisional unlawful presence waiver           scheduled immigrant visa interview is
                                                                                                process is purely discretionary. Furthermore, the
                                        published on the USCIS Web site, DHS                    provisional unlawful presence waiver is not valid
                                                                                                                                                         based on the approved immediate
                                        also will notify such applicants that, if                                                                        relative petition (I–130 or I–360) that
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                                                                                                while the alien remains in the United States. It only
                                        granted the provisional unlawful                        takes effect after the alien departs from the United     accompanies the Form I–601A. If it is,
                                        presence waiver, applicants should seek                 States, appears for his or her immigrant visa            USCIS will then look at the Department
                                                                                                interview, and is determined by DOS to be
                                        termination or dismissal of their                       otherwise eligible for an immigrant visa, in light of
                                                                                                                                                         of State’s Consular Consolidated
                                        removal proceedings. The request for                    the approved I–601A provisional unlawful presence        Database (CCD) to determine the date on
                                        termination or dismissal should be                      waiver.                                                  which the Department of State initially


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                                                           Federal Register / Vol. 78, No. 2 / Thursday, January 3, 2013 / Rules and Regulations                                            539

                                        acted to schedule the applicant for his                 qualifying for a provisional unlawful                  approximately $538.1 million at a seven
                                        or her immigrant visa interview (i.e., the              presence waiver, especially when they                  percent discount rate. Compared to the
                                        date of scheduling itself and not the                   may have experienced changed                           current waiver process, this rule
                                        date and time the applicant must appear                 circumstances that would result in                     requires that provisional unlawful
                                        for the interview).                                     extreme hardship to the U.S. citizen                   presence waiver applicants submit
                                           If the date that the Department of                   spouse or parent. In light of these                    biometric information. Included in the
                                        State initially acted to schedule the                   concerns, DHS has amended this final                   total cost estimate is the cost of
                                        immigrant visa interview is prior to the                rule to allow aliens who are denied a                  collecting biometrics, which DHS
                                        date of publication of this final rule,                 provisional unlawful presence waiver to                estimates will range from approximately
                                        January 3, 2013, then the alien is                      file another Form I–601A, based on the                 $32.9 million to approximately $56.6
                                        ineligible to apply for a provisional                   original approved immigrant visa                       million discounted at seven percent
                                        unlawful presence waiver. If the date                   petition. Denial of an application for a               over ten years. Also included in the
                                        that Department of State initially acted                provisional unlawful presence waiver is                total cost estimate are the costs faced by
                                        to schedule the immigrant visa                          without prejudice to the alien filing                  those who choose to file new
                                        interview is on or after the publication                another Form I–601A under paragraph                    provisional unlawful presence waiver
                                        date of this final rule, the alien is                   (e) provided the alien meets all of the                applications based on the same
                                        eligible to apply for a provisional                     requirements. The alien’s case must be                 approved immediate relative petition if
                                        unlawful presence waiver. The actual                    pending with the Department of State,                  their original Form I–601A is denied or
                                        date and time that the alien is scheduled               and the alien must notify the                          withdrawn, which DHS decided to
                                        to appear for the interview is not                      Department of State that he or she                     allow in response to public comments to
                                        relevant for the eligibility                            intends to file a new Form I–601A.                     the proposed rule. Individuals that file
                                        determination. This rule applies even if                14. Section 212.7(e)(10)                               a new Form I–601A will still face the
                                        the alien failed to appear for his or her                                                                      biometric and Form I–601A filing fees
                                        immigrant visa interview, cancelled the                    DHS has amended this provision to
                                                                                                allow an applicant to withdraw a                       and opportunity costs, which we
                                        interview, or requested that the                                                                               estimate will range from approximately
                                        interview be rescheduled. Therefore,                    previously-filed provisional unlawful
                                                                                                presence waiver application before final               $56.2 million to approximately $96.7
                                        USCIS may reject or deny any Form I–                                                                           million discounted at seven percent
                                        601A filed by an alien if USCIS                         adjudication and file another Form I–
                                                                                                601A, in accordance with the form                      over ten years. In addition, as this rule
                                        determines that the Department of State,                                                                       significantly streamlines the current
                                        prior to the date of publication of this                instructions and with the required filing
                                                                                                and biometric services fees. See section               process, DHS expects that additional
                                        final rule, initially acted to schedule an                                                                     applicants will apply for the provisional
                                                                                                212.7(e)(10).
                                        immigrant visa interview for the                                                                               unlawful presence waiver. To the extent
                                        approved immediate relative petition                    15. Section 212.7(e)(14)(iv)                           that this rule induces new demand for
                                        upon which the Form I–601A is based.                       DHS clarified the language in section               immediate relative immigrant visas,
                                        See section 212.7(e)(4)(iv).                            212.7(e)(14)(v) to specify that a                      additional immigration benefit forms,
                                           An alien who is ineligible to apply for              provisional unlawful presence waiver is                such as the Petition for Alien Relative,
                                        a provisional unlawful presence waiver                  automatically revoked if the alien, at                 Form I–130, will be filed compared to
                                        because of a previously scheduled                       any time before or after the approval of               the pre-rule baseline. These additional
                                        immigrant visa interview may still                      the provisional unlawful presence                      forms will involve fees being paid by
                                        qualify for a provisional unlawful                      waiver, or before the immigrant visa is                applicants to the Federal Government
                                        presence waiver if he or she has a new                  issued, reenters or attempts to reenter                for form processing and additional
                                        DOS immigrant visa case because (1)                     the United States without being                        opportunity costs of time being incurred
                                        DOS terminated the immigrant visa                       admitted or paroled. See section                       by applicants to provide the information
                                        registration associated with the                        212.7(e)(14)(iv).                                      required by the forms. The cost estimate
                                        previously scheduled interview, and
                                                                                                C. Costs and Benefits                                  for this rule also includes the impact of
                                        they have a new immediate relative
                                                                                                                                                       this induced demand, which DHS
                                        petition; or (2) the alien has a new                       This final rule is expected to result in            estimates will range from approximately
                                        immediate relative petition filed on his                a reduction of the time that U.S. citizens
                                                                                                                                                       $106.9 million to approximately $384.8
                                        or her behalf by a different petitioner.                are separated from their immediate
                                                                                                                                                       million discounted at seven percent
                                        See section 212.7(e)(5)(ii)(G).                         relatives, thus reducing the financial
                                                                                                                                                       over ten years.
                                                                                                and emotional hardship for these
                                        13. Section 212.7(e)(9)                                                                                           Estimates for the costs of the rule
                                                                                                families. In addition, the Federal
                                           DHS initially proposed that aliens                   Government should achieve increased                    were developed assuming that current
                                        who were denied a provisional unlawful                  efficiencies in processing immigrant                   demand for requesting waivers of
                                        presence waiver could not file a new                    visas for individuals subject to the                   grounds of inadmissibility based only
                                        Form I–601A. Instead, such aliens                       unlawful presence inadmissibility bars                 on unlawful presence is constrained
                                        would have to leave the United States                   under INA section 212(a)(9)(B), 8 U.S.C.               because of concerns that families may
                                        for their immigrant visa interviews and                 1182(a)(9)(B). We expect costs to the                  endure lengthy separations under the
                                        file a Form I–601, Application for                      Federal government of the provisional                  current system. Due to uncertainties as
                                        Waiver of Grounds of Inadmissibility,                   unlawful presence waiver process to be                 to the degree of the current constraint of
                                        after the Department of State                           offset by the additional fee revenue                   demand, DHS used a range of constraint
                                        determined they were inadmissible.                      collected for form processing.                         levels with corresponding increases in
                                        Some commenters were concerned that                        DHS estimates the discounted total                  demand to estimate the costs. The costs
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                                        limiting aliens to a single filing of an I–             ten-year cost of this rule will range from             for each increase in demand are
                                        601A would potentially bar aliens from                  approximately $196 million to                          summarized below.




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                                        540                   Federal Register / Vol. 78, No. 2 / Thursday, January 3, 2013 / Rules and Regulations

                                                                                  ESTIMATED INCREASE IN COSTS WITH AN INCREASE IN DEMAND OF:
                                                                                                                                        25%                  50%                    75%                   90%

                                                                                                      Cost of Biometrics Collection and Processing

                                        10 year Costs Undiscounted ...........................................................         $46,803,460          $59,088,534            $71,373,907          $78,746,295
                                        Total 10 year Costs Discounted at 7% ...........................................                32,907,683           42,030,423             51,153,460           56,628,050
                                        Total 10 year Costs Discounted at 3% ...........................................                39,926,220           50,653,297             61,380,675           67,818,069

                                                                                 Cost of Biometrics Collection and Processing and Form I–601A for Re-filers

                                        10 year Costs Undiscounted ...........................................................         $79,942,420        $100,924,521            $121,908,872         $134,499,783
                                        Total 10 year Costs Discounted at 7% ...........................................                56,207,656          71,788,866              87,371,675           96,721,450
                                        Total 10 year Costs Discounted at 3% ...........................................                68,195,707          86,516,943             104,840,098          115,834,193

                                                                               Costs of Applications for the Additional (Induced) Demand for Immigrant Visas

                                        10 year Costs Undiscounted ...........................................................        $143,931,692        $287,854,640            $431,775,838         $518,143,249
                                        Total 10 year Costs Discounted at 7% ...........................................               106,881,772         213,757,395             320,631,489          384,766,730
                                        Total 10 year Costs Discounted at 3% ...........................................               125,678,197         251,348,945             377,018,045          452,432,274

                                                                                                                 Total Costs to New Applicants

                                        10 year Costs Undiscounted ...........................................................        $270,677,572        $447,867,695            $625,058,617         $731,389,326
                                        Total 10 year Costs Discounted at 7% ...........................................               195,997,110         327,576,683             459,156,625          538,116,229
                                        Total 10 year Costs Discounted at 3% ...........................................               233,800,123         388,519,186             543,238,818          636,084,535



                                        II. Legal Authority                                            would further develop a proposal,                         were favorable and supported the
                                          The Homeland Security Act of 2002,                           which it would ultimately finalize                        implementation of the new provisional
                                        Public Law 107–296 (Homeland                                   through the rulemaking process.                           unlawful presence waiver process. A
                                        Security Act of 2002), section 102, 116                          On January 10, 2012, USCIS                              few hundred commenters (430) opposed
                                        Stat. 2135, 6 U.S.C. 112, and section 103                      conducted a stakeholder engagement to                     the proposed rule, in many instances
                                        of the INA, 8 U.S.C. 1103, charge the                          discuss the Notice of Intent. More than                   because of a misperception that the
                                        Secretary with administration and                              900 people participated via telephone                     provisional unlawful presence waiver
                                        enforcement of the immigration and                             and in person. USCIS provided an                          process would grant legal status to
                                        naturalization laws. The Secretary is                          overview of how the proposed process                      aliens not lawfully present in the United
                                        implementing this provisional unlawful                         changes may affect filing and                             States and allow them to remain in the
                                        presence waiver process under the                              adjudication. USCIS also addressed                        United States permanently. DHS also
                                        broad authority to administer DHS and                          questions from stakeholders. Topics                       received 310 comments, some of which
                                        the authorities provided under the                             covered included eligibility, procedures,                 did not address any aspect of the
                                        Homeland Security Act of 2002, the                             and consequences of an approval or                        proposed rule or reflect a commenter’s
                                        immigration and nationality laws, and                          denial of a provisional unlawful                          support or opposition to the proposed
                                        other delegated authority. The                                 presence waiver.                                          rule. These 310 commenters also did not
                                        Secretary’s discretionary authority to                                                                                   make any specific suggestions that
                                                                                                       B. Proposed Rule
                                        waive the ground of inadmissibility for                                                                                  related to the proposed rule. Finally,
                                                                                                         On April 2, 2012, DHS published a                       DHS received a comment in the form of
                                        unlawful presence can be found in INA                          proposed rule in the Federal Register,
                                        section 212(a)(9)(B)(v), 8 U.S.C.                                                                                        a petition signed by 118,593 individuals
                                                                                                       proposing to amend the regulations to                     who opposed the proposed rule; the
                                        1182(a)(9)(B)(v). The regulation                               revise the process for applying for
                                        governing certain inadmissibility                                                                                        signed petition, however, reflected the
                                                                                                       waivers of inadmissibility. See 77 FR                     same misperception 2 about the
                                        waivers is 8 CFR 212.7. The fee                                19902. DHS received over 4,000 public
                                        schedule for provisional unlawful                                                                                        provisional unlawful presence waiver
                                                                                                       comments to the proposed rule.                            process as seen in some of the
                                        presence waiver applications is found at                       Comments were submitted by
                                        8 CFR 103.7(b)(1)(i)(AA).                                                                                                comments from others who opposed the
                                                                                                       individuals, immigrant advocacy                           rule.
                                        III. Background                                                groups, attorneys, accredited
                                                                                                                                                                    In preparing this final rule, DHS
                                                                                                       representatives, religious organizations
                                        A. Notice of Intent                                                                                                      considered these public comments and
                                                                                                       and leaders, individuals in academia,
                                                                                                                                                                 other relevant materials contained in the
                                          On January 9, 2012, DHS published a                          Members of Congress, and members of
                                                                                                                                                                 docket. All comments may be reviewed
                                        notice in the Federal Register—                                the media. Some comments also were
                                                                                                                                                                 at the Federal Docket Management
                                        Provisional Waivers of Inadmissibility                         submitted through mass mailing
                                                                                                                                                                 System (FDMS) at http://
                                        for Certain Immediate Relatives of U.S.                        campaigns or petitions, expressing
                                        Citizens, 77 FR 19902 (Jan. 9, 2012)—                          support for, or opposition to, the                          2 The petition incorrectly summarized the
                                        announcing its intent to change the                            provisional unlawful presence waiver                      substance and nature of the proposed rule. The
                                        current process for certain applications                       process. DHS counted each petition or
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                                                                                                                                                                 petition also erroneously concluded that the
                                        for waivers of inadmissibility filed in                        mass mailing as one comment, but                          provisional unlawful presence waiver process
                                        connection with an immediate relative                          acknowledged the number of signatures                     granted aliens not lawfully present in the United
                                                                                                                                                                 States a temporary legal status in the United States
                                        immigrant visa application. The notice                         associated with each comment.                             and put them on the ‘‘fast track’’ to permanent legal
                                        explained the proposed process that                              Opinions on the proposed rule varied.                   status—neither of which can occur under this final
                                        DHS was considering and that DHS                               A large number of comments (3,442)                        rule.



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                                        www.regulations.gov, docket number                      be separated from the U.S. citizen                     Executive Branch, to create immigration
                                        USCIS–2012–0003.                                        petitioner. Many also agreed that it                   laws and policy. DHS disagrees with the
                                                                                                would relieve the financial burdens that               view that this rule exceeds the
                                        C. Final Rule
                                                                                                the current process places on American                 Secretary’s legal authority.
                                           This final rule adopts most of the                   families, encourage individuals to                        Congress has plenary authority over
                                        regulatory amendments set forth in the                  obtain a lawful status, and benefit the                immigration and naturalization and,
                                        proposed rule without change. The                       United States generally. Numerous                      through its legislative power, may enact
                                        rationale for the proposed rule and the                 commenters shared their personal                       legislation establishing immigration law
                                        reasoning provided in its preamble                      stories about the hardships they                       and policy. See, e.g., Arizona v. United
                                        remain valid with respect to these                      experienced after being separated from                 States, 132 S. Ct. 2492, 2498 (2012)
                                        regulatory amendments. DHS also has                     their loved ones, and applauded DHS                    (‘‘The Government of the United States
                                        made several clarifying changes to the                  for taking a step to reduce such                       has broad, undoubted power over the
                                        regulatory text, based on suggestions                   scenarios in the future.                               subject of immigration and the status of
                                        from commenters and on policy                              Several commenters strongly                         aliens. This authority rests, in part, on
                                        decisions made after publication of the                 disagreed with the proposed provisional                the National Government’s
                                        proposed rule. The changes to the                       unlawful presence waiver process,                      constitutional power to ‘establish an
                                        regulatory text are summarized in                       arguing that the Executive Branch did                  uniform Rule of Naturalization,’ U.S.
                                        Section V below. This final rule also                   not have the legal authority to make the               Const., Art. I, § 8, cl. 4, and its inherent
                                        adopts, without change, the regulatory                  proposed changes without approval                      power as sovereign to control and
                                        amendment clarifying 8 CFR 212.7(a)(1)                  from Congress. Other commenters                        conduct relations with foreign
                                        and (3). This final rule does not address               argued that the proposed rule was                      nations.’’) (citations omitted); see also
                                        comments seeking changes in U.S. laws,                  unconstitutional. Many commenters                      Fiallo v. Bell, 430 U.S. 787, 792 (1977).
                                        regulations, or agency policies that are                who opposed the change believed that                   The Executive Branch, which includes
                                        unrelated to the provisional unlawful                   the current immigration laws are not                   DHS, is charged with implementing the
                                        presence waiver process or the                          properly enforced and that DHS favors                  laws passed by Congress. Through
                                        clarifying amendments to 8 CFR                          illegal aliens over legal immigrants.                  section 102 of the Homeland Security
                                        212.7(a). This final rule also does not                 Some commenters also believed that                     Act of 2002, 106 Stat. 2135, 6 U.S.C.
                                        change the procedures or policies of                    DHS was rewarding illegal behavior by                  112, and INA section 103, 8 U.S.C. 1103,
                                        other DHS components or federal                         publishing this rule. These commenters                 Congress has specifically charged the
                                        agencies, or resolve issues outside the                 stated that this rule would only                       Secretary with the administration and
                                        scope of this rulemaking. After assessing               encourage illegal immigration and                      enforcement of the immigration and
                                        the effectiveness of the provisional                    fraud, would be harmful to the                         naturalization laws. The Secretary is
                                        unlawful presence waiver process and                    American economy, and that the                         authorized to promulgate rules and
                                        its operational impact, DHS, in                         Federal Government’s money would be                    ‘‘perform such other acts as he deems
                                        consultation with DOS and other                         better invested in assisting U.S. citizens             necessary for carrying out his authority’’
                                        affected agencies, will consider                        and legal immigrants, rather than illegal              based upon considerations rationally
                                        expanding the provisional unlawful                      aliens and their U.S. citizen families. A              related to the immigration laws. INA
                                        presence waiver process in the future.                  few commenters opposed the proposed                    section 103(a)(3), 8 U.S.C. 1103(a)(3).
                                        IV. Public Comments on the Proposed                     rule because they believed that it is                  The Secretary has broad discretion to
                                        Rule 3                                                  unfair to exclude individuals outside                  determine the most effective way to
                                                                                                the United States from eligibility for the             administer the laws. See, e.g., Narenji v.
                                        A. Summary of Public Comments                           proposed provisional unlawful presence                 Civiletti, 617 F.2d 745, 747 (D.C. Cir.
                                           The 60-day public comment period                     waiver process or because the                          1979) (observing that the INA ‘‘need not
                                        for the proposed rule ended on June 1,                  requirements articulated in the rule (for              specifically authorize each and every
                                        2012. Commenters included                               example, the lack of protection from                   action taken by the Attorney General
                                        individuals, immigrant advocacy                         removal) were too stringent or not                     [(now Secretary of Homeland Security)],
                                        groups, attorneys, and accredited                       helpful.                                               so long as his action is reasonably
                                        representatives, as well as religious                      DHS has reviewed all of the public                  related to the duties imposed upon
                                        organizations and leaders, individuals                  comments received in response to the                   him’’); see also Arizona, 132 S. Ct. at
                                        in academia, Members of Congress, and                   proposed rule and addresses them in                    2499 (noting ‘‘broad discretion
                                        members of the media. Some comments                     this final rule. DHS’s responses are                   exercised by immigration officials’’
                                        also were submitted through mass                        grouped by subject area, with a focus on               under the immigration laws).
                                        mailing campaigns or petitions,                         the most common issues and                                The provisional unlawful presence
                                        expressing support for, or opposition to,               suggestions raised by the commenters.                  waiver process is not a substantive
                                        the provisional unlawful presence                       DHS received few or no comments on                     change to the immigration laws but a
                                        waiver process. The majority of                         the following topics: (1) The rejection                procedural change in the way that a
                                        comments came from supporters of the                    criteria, (2) withdrawals, and (3) the                 specific type of waiver application can
                                        proposed rule who agreed that it would                  validity of an approved provisional                    be filed with USCIS. Generally,
                                        promote family unity and reduce the                     unlawful presence waiver.                              individuals who are required by law to
                                        length of time immediate relatives                                                                             obtain a waiver of inadmissibility must
                                                                                                B. Legal Authority To Implement the                    apply for the waiver through the
                                        (spouses, children, and parents of a U.S.               Provisional Unlawful Presence Waiver
                                        citizen over the age of 21 years) would                                                                        procedures prescribed by the Secretary,
                                                                                                Process                                                as permitted under the Homeland
                                                                                                  Several commenters questioned                        Security Act and the INA. Current
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                                          3 USCIS received some comments prior to the

                                        official comment period, including two letters          DHS’s legal authority to implement the                 waiver filing procedures for an
                                        signed by over 200 immigrant advocate                   provisional unlawful presence waiver                   individual processing an immigrant visa
                                        organizations. Most of the concerns or suggestions
                                        made by the pre-publication commenters were
                                                                                                process. Commenters argued that the                    application abroad at a consular post
                                        captured through other public comments submitted        proposed rule was unconstitutional and                 require the individual to apply for a
                                        during the official period.                             that it was the role of Congress, not the              waiver of grounds of inadmissibility


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                                        while outside the United States and                     the provisional unlawful presence                      visas for this category are always
                                        after his or her immigrant visa                         waiver process to immediate relatives.                 available, but also because it is
                                        interview. Under this final rule, DHS is                The Congressional commenters stated                    consistent with Congress’ policy choice
                                        permitting a category of aliens—certain                 that it was unambiguous that Congress                  to prioritize family reunification of
                                        immediate relatives of U.S. citizens who                intended the unlawful presence waiver                  immediate relatives of U.S. citizens over
                                        will be pursuing an immigrant visa                      under section 212(a)(9)(B)(v), 8 U.S.C.                other categories of aliens. For example,
                                        application at a consular post abroad—                  1182(a)(9)(B)(v), to be available to                   family-sponsored and employment-
                                        to file an application for a provisional                immediate relatives and certain                        based categories have annual numerical
                                        unlawful presence waiver of                             preference aliens, including unmarried                 limits, whereas there are no numerical
                                        inadmissibility due to unlawful                         adult children of U.S. citizens and LPR                limits on the availability of immigrant
                                        presence under INA section                              spouses and children. The                              visas to immediate relatives. Compare
                                        212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i),             Congressional commenters thought that                  INA section 201(b)(2)(A)(i), 8 U.S.C.
                                        while still in the United States. By                    DHS’s distinction could not be justified               1151(b)(2)(A)(i), with INA section
                                        creating these new filing procedures,                   based on DHS’s reading of congressional                203(a), (b), 8 U.S.C. 1153(a), (b).
                                        DHS anticipates that the immigrant visa                 intent. Instead, the Congressional                     Focusing on U.S. citizens as part of this
                                        waiver process will become more                         commenters argued that DHS would be                    discretionary process also is consistent
                                        efficient for the U.S. Government and                   ignoring clear congressional intent and                with permissible distinctions that may
                                        for U.S. citizens and their immediate                   cause the provisional unlawful presence                be drawn between U.S. citizens and
                                        relatives. It will reduce the length of                 waiver process to be underutilized by                  aliens and between classes of aliens in
                                        time American families are separated                    entire categories of persons for whom                  immigration laws and policies. See, e.g.,
                                        while the immigrant visa applicant is                   the waiver is now available. Finally,                  Fiallo, 430 U.S. at 792; Mathews v. Diaz,
                                        going through the immigrant visa                        many commenters believed that                          426 U.S. 67, 81 (1976).
                                        process. The applicant may remain in                    expanding the provisional unlawful                        DHS also believes that focusing the
                                        the United States with his or her family                presence waiver process to preference                  provisional unlawful presence waiver
                                        until the time the applicant must depart                categories would offer more measurable                 process on immediate relatives of U.S.
                                        from the United States to attend his or                 benefits to USCIS and DOS and would                    citizens is consistent with recognized
                                        her immigrant visa interview.                           facilitate legal immigration by                        government interests in encouraging
                                                                                                encouraging a more sizeable population                 eligible long-time LPRs to naturalize so
                                        C. Eligibility for the Provisional                      to seek to adjust their status.
                                        Unlawful Presence Waiver                                                                                       that their spouses, parents, and children
                                                                                                   Suggestions for additional eligibility              under the age of 21 years can become
                                        1. Preference Categories                                criteria or categories of eligible aliens              immediate relatives and also benefit
                                                                                                varied but most commenters asked DHS
                                           A large number of commenters                                                                                from this new process. See, e.g., City of
                                                                                                to consider expanding eligibility to: (1)
                                        focused on who is eligible to participate                                                                      Chicago v. Shalala, 189 F.3d 598, 608
                                                                                                All preference categories generally; (2)
                                        in the provisional unlawful presence                                                                           (7th Cir. 1999).
                                                                                                unmarried sons and daughters of U.S.
                                        waiver process. Some commenters                         citizens who are over the age of 21                       Family-sponsored and employment-
                                        believed the proposed rule was too                      years; (3) married sons and daughters or               based preference categories have annual
                                        restrictive and excluded many                           siblings of U.S. citizens; (4) spouses and             numerical limits. Therefore, preference
                                        individuals who also could benefit from                 minor children of LPRs; (5) parents of                 categories carry an inherent risk that
                                        the new process. Others asked why DHS                   minor U.S. citizen children; (6) children              they may become oversubscribed; if an
                                        was not expanding eligibility to all                    who were brought to the United States                  individual’s immigrant visa is based
                                        families and their close immediate or                   when young, such as those aliens who                   upon a preference category, his or her
                                        distant relatives such as in-laws,                      would qualify under the proposed                       immigrant visa may become unavailable
                                        grandparents, aunts and uncles. The                     Development, Relief and Education for                  at any given time upon oversubscription
                                        commenters also asked why DHS did                       Alien Minors (DREAM) Act 4; (7)                        of the preference category. Retrogression
                                        not include all family-sponsored or                     preference aliens who have lived in the                of visa availability can have a direct,
                                        employment-based immigrants,                            United States for more than 10 years; (8)              adverse impact on agency backlogs and
                                        especially if aliens in a particular                    family members of personnel in the U.S.                processing.
                                        immigrant visa category had current                     Armed Forces, including the National                      DHS appreciates the comments from
                                        visa availability. The commenters                       Guard, reserves, and veterans; and (9)                 the public on these issues and has given
                                        argued that there was no discernible                    any preference category with current                   them serious consideration. DHS will
                                        difference between immediate relatives                  visa availability.                                     consider future expansion of the
                                        and preference aliens who have current                     The focus of the provisional unlawful               program after DHS and DOS have
                                        visa availability. The commenters also                  presence waiver process is to reduce the               assessed the effectiveness of the
                                        indicated that the hardships of lengthy                 impact of the current waiver process on                provisional unlawful presence waiver
                                        family separation are just as compelling                U.S. citizens by reducing the time U.S.                process and the operational impact it
                                        for LPR families as they are for U.S.                   citizens are separated from their                      may have on existing agency processes
                                        citizen families. The commenters also                   immediate relatives. DHS chose to limit                and resources See Beach Commc’ns v.
                                        asked that, if DHS will not expand the                  eligibility to immediate relatives of U.S.             FCC, 508 U.S. 307, 316 (1993)
                                        provisional unlawful presence waiver                    citizens not only because the immigrant                (observing that policymakers ‘‘must be
                                        process to all LPR families, DHS should                                                                        allowed leeway to approach a perceived
                                        at least consider expanding the                           4 The DREAM Act, a bill that aims to permit          problem incrementally’’). For these
                                        provisional unlawful presence waiver                    children of undocumented immigrants, who were          reasons, DHS has not adopted the
                                                                                                brought to the United States at a young age, to
                                        process to LPRs who have U.S. citizen                                                                          commenters’ suggestions. At this time,
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                                                                                                obtain a legal status if they meet certain criteria.
                                        children.                                               Versions of the DREAM Act have been introduced         the provisional unlawful presence
                                           Several Congressional commenters                     and reintroduced on several occasions, including       waiver process will remain available
                                        argued that there was no compelling,                    most recently in May 2011, but none has passed         only to individuals who are immediate
                                                                                                Congress to date. See, e.g., Development, Relief and
                                        legal, operational or other rationale that              Education for Alien Minors Act of 2011, S. 952,        relatives of U.S. citizens (i.e., spouses,
                                        would justify DHS’s decision to limit                   112th Cong.                                            children, and parents (if the U.S. citizen


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                                        is at least 21 years of age)), as defined               return to the United States. Centralizing              purpose for creating the provisional
                                        in INA section 201(b), 8 U.S.C. 1151(b).                Form I–601 filings in this manner also                 unlawful presence waiver process is to
                                                                                                will significantly reduce the current                  reduce the amount of time U.S. citizens
                                        2. Aliens Outside the United States
                                                                                                backlog that exists at USCIS                           are separated from their immediate
                                           Numerous commenters asked DHS to                     international offices. In addition, as of              relatives. Focusing on hardship to U.S.
                                        extend eligibility to individuals who are               June 4, 2012, when USCIS began to                      citizens is consistent with permissible
                                        currently outside the United States.                    implement centralized filing of Forms I–               distinctions that may be drawn between
                                        Commenters argued that immediate                        601 for individuals outside of the                     U.S. citizens and aliens. It also is
                                        relatives who had already departed from                 United States, USCIS had approximately                 consistent with the Secretary’s authority
                                        the United States to consular process or                10,200 cases pending. USCIS has                        to administer the immigration laws and
                                        who voluntarily left the United States to               dedicated additional resources on a                    determine the most efficient means for
                                        avoid the consequences of removal                       temporary basis to expeditiously                       effectuating the provisional unlawful
                                        should not be punished for their                        process the cases filed prior to                       presence waiver process. See 77 FR at
                                        actions. Some commenters also felt that                 centralization, as well as those that                  19908. Finally, DHS cannot include
                                        it was unfair to speed up the process for               individuals continue to file at the USCIS              children as qualifying relatives for
                                        individuals residing illegally in the                   Field Office in Ciudad Juarez, Mexico                  purposes of the extreme hardship
                                        United States, while not doing anything                 through December 4, 2012.6 USCIS                       determination because the statute only
                                        for those individuals who departed the                  anticipates that it will complete                      permits a showing of extreme hardship
                                        United States voluntarily to comply                     processing of all cases pending in                     to a spouse or parent as a basis for
                                        with the rules. Many commenters                         USCIS offices abroad within                            granting the waiver. See INA section
                                        shared their personal stories about the                 approximately six months of the                        212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v).
                                        difficulties of long-term separation from               effective date of this rule.                           Only Congress has the power to amend
                                        their spouses and the impact it had on                     For these reasons, DHS did not adopt                the immigration laws to add other
                                        them and their children. Most                           the commenters’ suggestions, and                       individuals who can be qualifying
                                        commenters wanted their family                          individuals who are already outside of                 relatives for purposes of the extreme
                                        members abroad to have the opportunity                  the United States must pursue a waiver                 hardship determination.
                                        to participate in a faster, more effective              of inadmissibility through the current                    DHS is open to considering expanding
                                        process or for DHS to at least provide                  Form I–601 process. The provisional                    the provisional unlawful presence
                                        some other form of relief to overcome                   unlawful presence waiver process will                  waiver process to include lawful
                                        the effects of the 3-year and 10-year bars              remain available only to those                         permanent residents as qualifying
                                        for these individuals.                                  individuals who are currently in the                   relatives after DHS has a better
                                           DHS recognizes that there are many                   United States and will be departing for                understanding of the impact of the
                                        difficulties faced by U.S. citizens when                consular processing abroad.                            provisional unlawful presence waiver
                                        their immediate relatives must obtain                                                                          process on agency resources and
                                        waivers while outside the United States.                3. Aliens Who Cannot Establish Extreme                 operations.
                                        DHS, however, believes that creating a                  Hardship to a U.S. Citizen Spouse or
                                        provisional unlawful presence waiver                    Parent                                                 4. Aliens in Removal Proceedings
                                        process abroad would be duplicative of                     Several commenters objected to the                     Numerous commenters asked DHS to
                                        DOS’s current immigrant visa processes                  exclusion from the provisional unlawful                expand eligibility for the provisional
                                        and USCIS’s current Form I–601,                         presence waiver process of immediate                   unlawful presence waiver to include
                                        Application for Waiver of Grounds of                    relatives of U.S. citizens who could                   aliens in removal proceedings. Some
                                        Inadmissibility waiver process, which                   establish extreme hardship only to an                  commenters suggested that DHS include
                                        would not be an efficient use of agency                 LPR spouse or parent. Commenters                       anyone who is in removal proceedings,
                                        resources.                                              argued that this restriction limited the               without further qualifications. Others
                                           To alleviate some of the delays in                   number of individuals who could                        suggested that DHS include aliens in
                                        overseas waiver processing, USCIS                       benefit from the provisional unlawful                  removal proceedings if they: (1) Were
                                        recently centralized Form I–601 filings                 presence waiver process and that there                 granted prosecutorial discretion; (2)
                                        such that individuals located outside                   was no rational basis for the limitation.              were the primary caretakers for U.S.
                                        the United States now file the Form I–                  Some also believed that applicants will                citizens; (3) were previously granted
                                        601 in the United States where USCIS                    submit ‘‘weak’’ extreme hardship claims                voluntary departure; or (4) had their
                                        has sufficient resources at its service                 relating to a qualifying U.S. citizen                  cases administratively closed.
                                        centers to accommodate filing surges.5                  relative when the real hardship would                  Commenters also believed that the
                                        Applicants who need waivers are no                      be to an LPR spouse or parent.                         provisional unlawful presence waiver
                                        longer required to schedule a ‘‘waiver                  Commenters also asked that DHS allow                   process undermines DHS’s ongoing
                                        filing’’ appointment with the U.S.                      individuals to make a showing of                       prosecutorial discretion initiative. A few
                                        Embassy or consulate, which in some                     extreme hardship to their U.S. citizen                 commenters also said DHS should
                                        cases required applicants to wait up to                 children.                                              eliminate the requirement that aliens
                                        two months just for these waiver filing                    DHS has carefully considered these                  with administratively closed cases
                                        appointments. Centralization of Form I–                 comments and the recommended                           pursue voluntary departure because it
                                        601 filings from abroad should                          changes. However, DHS will not adopt                   was too complicated and could result in
                                        significantly reduce the time                           the suggested changes at this time. As                 separation from a U.S. citizen spouse,
                                        individuals must spend abroad, waiting                  stated in the proposed rule, a primary                 parent, or child if the alien fails to
                                        to receive immigrant visas so they can                                                                         comply with the terms and conditions
                                                                                                                                                       of voluntary departure. Several
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                                                                                                   6 USCIS provided a transition period during
                                          5 As  of June 4, 2012, most individuals abroad,       which individuals who are processing their             commenters criticized the use of
                                        who have applied for certain visas and have been        immigrant visa applications through the U.S.           voluntary departure, arguing that the
                                        found inadmissible by a DOS consular officer, must      consulate in Ciudad Juarez, Mexico, could file their
                                        mail Forms I–601 directly to a USCIS Lockbox            I–601 applications either with the Lockbox facility
                                                                                                                                                       time frames for voluntary departure in
                                        facility. For more information, please visit the        or at the USCIS Ciudad Juarez Field Office. This       many instances would be too short (60
                                        USCIS Web site at www.uscis.gov.                        transition period ended on December 4, 2012.           or 120 days) to cover the time needed


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                                        for the adjudication of the Form I–601A                 result in the alien being barred under 8               removal proceedings are terminated or
                                        and the time the applicant needs to                     CFR 212.7(e)(3)(v), because the removal                dismissed may experience delays in
                                        prepare for departure after approval of                 proceedings would still be pending and                 their immigrant visa processing or risk
                                        the provisional unlawful presence                       not ‘‘terminated or dismissed.’’ The                   becoming ineligible for the immigrant
                                        waiver request. Other commenters                        commenter also recommended that the                    visa based on another ground of
                                        suggested that DHS include any alien                    final rule make clear that USCIS can                   inadmissibility, such as INA section
                                        who has been issued a Notice to Appear                  only accept a provisional unlawful                     212(a)(6)(B), 8 U.S.C. 1182(a)(6)(B)
                                        (NTA). They reasoned that, if the                       presence waiver once DHS, through                      (failure to attend a removal proceeding
                                        purpose of the provisional unlawful                     ICE’s Office of Chief Counsel,                         without reasonable cause), or INA
                                        presence waiver is to avoid hardship to                 affirmatively consents to it in the                    section 212(a)(9)(A), 8 U.S.C.
                                        U.S. citizens, it should make no                        removal proceedings.                                   1182(a)(9)(A) (aliens who have been
                                        difference whether or not an NTA has                       After careful consideration of all                  ordered removed or who depart from
                                        been issued. One commenter also                         comments on this issue, DHS has                        the United States while an order of
                                        requested that DHS allow individuals                    decided to limit eligibility for the                   removal is outstanding). See Matter of
                                        who have a fear of returning to their                   provisional unlawful presence waiver                   Sanchez-Herbert, 26 I&N Dec. 43 (BIA
                                        home countries to participate in the                    process to individuals whose removal                   2012) (holding that an IJ is required to
                                        provisional unlawful presence waiver                    proceedings are administratively closed                issue an in absentia removal order
                                        process.                                                and have not been recalendared at the                  (rather than terminating proceedings)
                                           Several immigrant advocacy groups                    time of filing the Form I–601A. Under                  even though the alien previously had
                                        asked DHS to allow individuals to file                  its prosecutorial discretion (PD)                      departed from the United States, if the
                                        the provisional unlawful presence                       policies, ICE has been reviewing cases                 alien had proper notice of the hearing
                                        waiver application before termination of                pending before EOIR and all incoming                   and DHS establishes the alien’s
                                        removal proceedings or a grant of                       cases to ensure that they are aligned                  removability). ICE intends to work with
                                        voluntary departure. The commenters                     with the agency’s civil enforcement                    individuals to facilitate the timely
                                        argued that allowing individuals to                     priorities and that ICE is effectively                 termination or dismissal of an
                                        apply for the provisional unlawful                      using its finite resources. For cases that             individual’s removal proceedings once
                                        presence waiver while still in                          ICE determines are not enforcement                     he or she obtains a provisional unlawful
                                        proceedings would ensure that USCIS,                    priorities, it exercises its discretion                presence waiver.
                                        and not U.S. Immigration and Customs                    where appropriate, typically by moving                    Focusing on this subset of aliens in
                                        Enforcement (ICE) or U.S. Customs and                   for administrative closure. See                        removal proceedings is consistent with
                                        Border Protection (CBP), is the first                   Memorandum by ICE Director John T.                     the Department’s established
                                        agency to determine if an applicant                     Morton in his June 17, 2011                            enforcement priorities. Individuals who
                                        qualifies for the waiver. If the                        memorandum and the subsequent                          received administrative closure are
                                        applicant’s provisional unlawful                        November 17, 2011 directive from Peter                 likely individuals whom ICE or EOIR
                                        presence waiver is approved, then the                   S. Vincent, Principal Legal Advisor to                 has determined, on a case-by-case basis
                                        applicant could seek termination or                     all attorneys at the ICE Office of Chief               or as a matter of policy, to be non-
                                        dismissal of his or her case. The                       Counsel. DHS, however, is not limiting                 enforcement priorities. This includes
                                        advocacy groups stated that many                        eligibility solely to cases                            individuals whose cases are deferred
                                        individuals subject to removal, whether                 administratively closed under the ICE                  through the DACA process. Given that
                                        detained or non-detained, were                          case-by-case review initiative, but also               these individuals have been determined
                                        unrepresented and could be confused by                  is allowing any alien whose case is                    to not be enforcement priorities because
                                        the various barriers to filing the                      administratively closed and has not                    of their compelling equities (e.g., their
                                        provisional unlawful presence waiver                    been recalendered at the time of filing                long-term presence in the United States
                                        application. They also argued that                      the Form I–601A to participate in the                  or their connection to U.S. citizen
                                        allowing an individual to file the                      provisional unlawful presence waiver                   relatives), DHS determined that they
                                        provisional unlawful presence waiver                    process. In addition, individuals in                   should be able to participate in the
                                        application while proceedings are                       removal proceedings whose cases are                    provisional unlawful presence waiver
                                        pending would ensure that                               deferred pursuant to the Deferred                      process. DHS may consider expanding
                                        unrepresented aliens are not left with                  Action for Childhood Arrivals (DACA) 7                 eligibility for the provisional unlawful
                                        having to choose between seeking                        process may also request that ICE seek                 presence waiver process to other subsets
                                        avenues of relief in removal proceedings                administrative closure once USCIS                      of aliens in removal proceedings in the
                                        and pursuing an immigrant visa abroad.                  defers action in their cases.                          future and after implementation of this
                                           Finally, one commenter asked DHS to                     If the Form I–601A is approved for an               final rule.
                                        clarify the three options noted in the                  alien whose proceedings have been                         Aliens whose cases are deferred,
                                        proposed rule at 8 CFR 212.7(e)(3)(v)                   administratively closed, the alien                     whether authorized by ICE or by USCIS
                                        through 212.7(e)(3)(vii) (i.e.,                         should seek termination or dismissal of                through approval of a Form I–821D,
                                        termination/dismissal, cancellation of                  the proceedings, without prejudice, by                 Consideration of Deferred Action for
                                        NTA, administrative closure with                        EOIR. The request for termination or                   Childhood Arrivals, must meet all
                                        voluntary departure) for aliens in                      dismissal should be granted before the                 requirements under 8 CFR 212.7(e) to
                                        removal proceedings. The commenter                      alien departs for his or her immigrant                 receive a provisional unlawful presence
                                        noted that two of the provisions, 8 CFR                 visa interview abroad. Applicants who                  waiver. Deferred action does not
                                        212.7(e)(3)(v) (termination/dismissal)                  leave the United States before their                   override or modify the eligibility
                                        and 212.7(e)(3)(vii) (administrative                                                                           requirements specified in this final rule.
                                        closure with voluntary departure) in the                                                                       Thus, aliens whose cases have been
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                                                                                                  7 On June 15, 2012, the Secretary of Homeland

                                        proposed rule, conflicted because aliens                Security issued a memorandum to USCIS, CBP, and        deferred but have final orders of
                                        who chose to pursue voluntary                           ICE, regarding the exercise of prosecutorial           removal or other grounds of
                                                                                                discretion with respect to certain individuals who
                                        departure would need to have their                      came to the United States as children. See the
                                                                                                                                                       inadmissibility beyond unlawful
                                        cases recalendared before an IJ.                        USCIS Web site—www.uscis.gov—for more                  presence will remain ineligible for a
                                        Recalendaring of the alien’s case would                 information about the DACA process.                    provisional unlawful presence waiver.


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                                        5. Aliens With Final Orders of Removal                  admitted is inadmissible under INA                     application packet to the approved
                                        and Previously Removed                                  section 212(a)(9)(C), 8 U.S.C.                         provisional unlawful presence waiver.
                                           Numerous commenters requested that                   1182(a)(9)(C), and may have his or her                 One commenter suggested that aliens
                                        DHS allow aliens with final orders of                   final order of removal reinstated under                should be allowed to resubmit the
                                        removal to participate in the provisional               INA section 241(a)(5), 8 U.S.C.                        immigrant visa application package to
                                        unlawful presence waiver process. The                   1231(a)(5). The provisional unlawful                   the NVC so that they could file the
                                        commenters offered a variety of                         presence waiver is only available to an                provisional unlawful presence waiver
                                        suggestions, many of which came out of                  alien who, upon departure from the                     application. Some commenters also
                                        their own personal circumstances. For                   United States, would be inadmissible                   asked DHS to give individuals still in
                                        example, some commenters suggested                      only due to accrual of unlawful                        the United States the option to either
                                        that DHS include aliens with final                      presence under INA section                             postpone their immigrant visa
                                        removal orders who: (1) Are currently                   212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i).            interviews so they could file the
                                        detained pending removal; (2) had their                 Thus, a large percentage of aliens in                  provisional unlawful presence waiver or
                                        removal orders temporarily suspended;                   removal proceedings will not be eligible               proceed with consular processing.
                                                                                                for a provisional unlawful presence                       Several commenters were concerned
                                        (3) are still in the United States and had
                                                                                                waiver. As a result, DHS has concluded                 that the time periods for filing and
                                        final orders of removal issued within
                                                                                                that, because the success of this new                  adjudication of a provisional unlawful
                                        the last five to 10 years or, alternatively,
                                                                                                provisional unlawful presence waiver                   presence waiver application, filing of
                                        issued more than 10 years ago; (4) were
                                                                                                process relies on its efficient,                       the immigrant visa application, and
                                        determined by DHS to warrant a
                                                                                                streamlined approach and close                         DOS scheduling of the immigrant visa
                                        favorable exercise of prosecutorial                                                                            interview were too short. The
                                                                                                coordination with the NVC, the
                                        discretion; (5) were previously granted                                                                        commenters believed that it created
                                                                                                provisional unlawful presence waiver
                                        voluntary departure; (6) were granted                                                                          timing issues for immigration law
                                                                                                process will not be expanded to include
                                        voluntary departure but overstayed by                                                                          practitioners in terms of advising their
                                                                                                aliens with final removal orders.
                                        10 years; (7) are subject to in absentia                                                                       clients on filing the Form I–601A and
                                        final orders of removal due to                          6. Aliens With Scheduled Immigrant                     paying the immigrant visa fee. The
                                        ineffective assistance of counsel; (8)                  Visa Interviews                                        commenters stated that once the
                                        have been removed for a noncriminal                        Several commenters asked DHS to                     immigrant visa fee was paid, DOS
                                        ground of inadmissibility; (9) have                     include aliens in the provisional                      would schedule the immigrant visa
                                        obtained advanced consent to reapply                    unlawful presence waiver process                       interview potentially before USCIS
                                        for admission to the United States; or                  regardless of whether they had an                      adjudicated the Form I–601A and, as a
                                        (10) were previously removed,                           immigrant visa interview scheduled in                  result, the applicant would be ineligible
                                        regardless of whether the alien is abroad               the past. Several commenters objected                  for the provisional unlawful presence
                                        or still inside the United States. A few                to this ground of ineligibility, arguing               waiver. Finally, one commenter
                                        commenters indicated that those with                    that it was irrational and served no                   requested that DHS implement a grace
                                        final orders of removal should be                       purpose or was arbitrary, capricious and               period of at least one year after
                                        included if they are married to U.S.                    cruel. Several commenters stated that                  publication of the final rule during
                                        citizens and have children. Most                        many individuals already had cancelled                 which applicants who had scheduled
                                        commenters stated that U.S. citizen                     their immigrant visa interviews after                  immigrant visa interviews could
                                        family members of aliens with final                     publication of the Notice of Intent on                 participate in the provisional unlawful
                                        orders of removal face the same                         January 9, 2012 (77 FR 19902). An                      presence waiver process.
                                        hardships as those with relatives subject               immigrant advocacy group asked DHS                        DHS disagrees that limiting eligibility
                                        to inadmissibility based on unlawful                    to include applicants with previously                  to aliens who have not had their
                                        presence in the United States.                          scheduled interviews. The group                        immigrant visa interviews scheduled
                                           DHS considered these suggestions and                 acknowledged that allowing such                        has no rational basis. DHS considered a
                                        has concluded that it will not expand                   applicants to reschedule immigrant visa                number of criteria and restrictions to
                                        the provisional unlawful presence                       interviews would create an additional                  make the process operationally
                                        waiver process to include aliens with                   administrative burden on DOS, but                      manageable without creating delays in
                                        final removal orders. Generally, aliens                 believed that it would ensure equity                   processing of other petitions or
                                        who have outstanding final orders of                    among those immediate relatives                        applications filed with USCIS or in the
                                        removal may be inadmissible on a                        seeking to legalize their status while                 DOS immigrant visa process. By
                                        variety of grounds other than unlawful                  minimizing the length of time they are                 including aliens who were scheduled
                                        presence, such as criminal offenses (INA                separated from their families. The                     for an interview prior to the date of
                                        section 212(a)(2), 8 U.S.C. 1182(a)(2))                 advocacy group also believed that                      publication of this final rule, the
                                        and fraud and misrepresentation (INA                    failure to include this group would only               projected volume of cases could
                                        section 212(a)(6)(C), 8 U.S.C.                          create confusion and ultimately                        significantly increase and would create
                                        1182(a)(6)(C)). In addition, any alien                  ineligibility for the very individuals                 backlogs not only in the provisional
                                        who is subject to a final order of                      who the rule is supposed to help.                      unlawful presence waiver process, but
                                        removal, decides to leave the United                       Several commenters suggested that                   also in adjudication of other USCIS
                                        States, and subsequently seeks                          DOS return the immigrant visa                          benefits. The increased volume would
                                        admission, is inadmissible as an alien                  application packet to the NVC once an                  also adversely impact DOS and their
                                        with a prior removal under INA section                  alien files a provisional unlawful                     immigrant visa process.
                                        212(a)(9)(A), 8 U.S.C. 1182(a)(9)(A).                   presence waiver. Another commenter                        For these reasons, DHS will not
                                        Similarly, any alien who has been                       suggested that the petitioner should be                expand the provisional unlawful
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                                        ordered removed or who has been                         allowed to fly to the consulate abroad,                presence waiver to include individuals
                                        unlawfully present in the United States                 retrieve the immigrant visa application                whose immigrant visa interviews were
                                        for an aggregate period of a year or more               packet, and return it to the NVC so DHS                scheduled before the date of publication
                                        and subsequently attempts to enter or                   could adjudicate the waiver and the                    of this final rule January 3, 2013. DHS
                                        reenter the United States without being                 NVC could match the immigrant visa                     now adds language to the final rule to


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                                        clarify when an alien is ineligible for a               I–601A will be rejected and returned to                application if USCIS has a ‘‘reason to
                                        provisional unlawful presence waiver                    the applicant with the associated filing               believe’’ that the alien will be
                                        because of a previously scheduled                       and biometric fees or denied. The Form                 inadmissible on grounds other than
                                        immigrant visa interview.                               I–601A will be rejected even if the                    unlawful presence. The commenters
                                           USCIS will first look at whether the                 applicant’s interview is rescheduled                   argued that DHS should not deny a
                                        scheduled immigrant visa interview is                   after the date of publication of this final            provisional unlawful presence waiver
                                        based on the approved immediate                         rule. USCIS will verify with DOS                       simply because DHS has reason to
                                        relative petition (I–130 or I–360) that                 whether the applicant’s immigrant visa                 believe that the applicant was convicted
                                        accompanies the Form I–601A. If it is,                  interview was scheduled before the date                of a crime, especially since some crimes
                                        USCIS will then look at the Department                  of publication of this final rule.                     are not automatic bars to admission to
                                        of State’s Consular Consolidated                                                                               the United States in a lawful
                                        Database (CCD) to determine the date on                 7. Aliens With Other Grounds of
                                                                                                                                                       immigration status and, upon further
                                        which the Department of State initially                 Inadmissibility
                                                                                                                                                       review, would not be considered
                                        acted to schedule the applicant for his                    Several commenters asked DHS to                     convictions or criminal offenses for
                                        or her immigrant visa interview (i.e., the              consider expanding the provisional                     immigration purposes.
                                        date of scheduling itself and not the                   unlawful presence waiver process to                       DHS has considered these comments
                                        date and time the applicant must appear                 include additional grounds of                          but will not adopt the suggested
                                        for the interview).                                     inadmissibility and the waivers                        changes. The goal of the provisional
                                           If the date that the Department of                   associated with such grounds. These                    unlawful presence waiver process is to
                                        State initially acted to schedule the                   commenters specifically referenced                     facilitate immigrant visa issuance for
                                        immigrant visa interview is prior to the                waivers such as the waiver for certain                 immediate relatives of U.S. citizens who
                                        date of publication of this final rule,                 criminal grounds of inadmissibility                    are otherwise admissible 8 to the United
                                        January 3, 2013, then the alien is                      under INA section 212(h), 8 U.S.C.                     States except for the 3-year and 10-year
                                        ineligible to apply for a provisional                   1182(h), for fraud and misrepresentation               unlawful presence bars, which are
                                        unlawful presence waiver. If the date                   under INA section 212(i), 8 U.S.C.                     triggered upon departure from the
                                        that Department of State initially acted                1182(i), and for alien smuggling under                 United States. DOS, not USCIS,
                                        to schedule the immigrant visa                          INA section 212(d)(11), 8 U.S.C.                       determines if an immigrant visa
                                        interview is on or after the publication                1182(d)(11). Some commenters                           applicant is eligible for an immigrant
                                        date of this final rule, the alien is                   suggested that DHS include any waiver                  visa and whether there are any grounds
                                        eligible to apply for a provisional                     that has the same extreme hardship                     of inadmissibility that may bar issuance
                                        unlawful presence waiver. The actual                    standard into the provisional unlawful                 of the immigrant visa. If USCIS were to
                                        date and time that the alien is scheduled               presence waiver process. Other                         consider other grounds of
                                        to appear for the interview is not                      commenters believed that it would be                   inadmissibility beyond unlawful
                                        relevant for the eligibility                            more efficient to resolve all grounds of               presence, it would create backlogs in the
                                        determination. This rule applies even if                inadmissibility at the same time. They                 adjudication of the provisional unlawful
                                        the alien failed to appear for his or her               suggested that DHS include all grounds                 presence waivers and, in turn, adversely
                                        interview, cancelled the interview, or                  of inadmissibility that can be waived                  impact DOS’s immigrant visa process. In
                                        requested that the interview be                         and currently appear on the Form I–601.                particular, to assess an application for a
                                        rescheduled. Therefore, USCIS may                       The commenters believed this change                    waiver of inadmissibility based on
                                        reject or deny any Form I–601A filed by                 would alleviate the need for aliens to                 fraud, misrepresentation, or criminal
                                        an alien who USCIS determines that the                  file multiple waiver requests at the time              history, an individual generally must
                                        Department of State, prior to the date of               of their immigrant visa interviews.                    undergo vetting through an in-person
                                        publication of this final rule, initially                  Several commenters stated that an                   interview at a USCIS Field Office. Since
                                        acted to schedule the alien’s immigrant                 individual should not be precluded                     DOS already conducts an in-depth in-
                                        visa interview for the approved                         from filing a provisional unlawful                     person interview as part of the
                                        immediate relative petition upon which                  presence waiver application if the                     immigrant visa process, DHS believes
                                        the Form I–601A is based. See section                   individual: (1) Was previously arrested,               that such a full review by USCIS would
                                        212.7(e)(4)(iv).                                        especially if there was no conviction or               be duplicative of DOS’s efforts.
                                           An alien who is ineligible to apply for              the conviction was for a crime involving                  DHS, however, intends to uphold its
                                        a provisional unlawful presence waiver                  moral turpitude (CIMT) that meets the                  responsibility to protect the integrity
                                        because of a previously scheduled                       petty offense exception under INA                      and security of the immigration process
                                        immigrant visa interview may still                      section 212(a)(2)(A)(ii), 8 U.S.C.                     by conducting full background and
                                        qualify for a provisional unlawful                      1182(a)(2)(A)(ii); (2) violated his or her             security checks to assess whether an
                                        presence waiver if he or she has a new                  status; (3) worked without                             individual may be a threat to national
                                        DOS immigrant visa case because (1)                     authorization; or (4) made a false claim               security or public safety. To maintain a
                                        DOS terminated the immigrant visa                       to U.S. citizenship under INA section                  streamlined process, USCIS will,
                                        registration associated with the                        212(a)(6)(C)(ii), 8 U.S.C.                             however, only conduct a limited review
                                        previously scheduled interview, and                     1182(a)(6)(C)(ii). A few commenters also               of the waiver application to determine
                                        they have a new immediate relative                      requested that USCIS make an                           if: (1) The individual has self-reported a
                                        petition; or (2) the alien has a new                    affirmative finding that a specific                    ground of inadmissibility that would
                                        immediate relative petition filed on his                ground of inadmissibility does not                     render him or her ineligible for the
                                        or her behalf by a different petitioner.                apply to an applicant. The commenters                  provisional unlawful presence waiver;
                                           DHS has clarified the regulatory text                requested that such a finding be either
                                        at 8 CFR 212.7(e)(4) and (5)(ii) so that                persuasive or binding on DOS consular
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                                                                                                                                                         8 An alien will not be inadmissible for being

                                        aliens clearly understand that if the                   officers.                                              present in the United States without admission or
                                        Department of State scheduled the alien                    Finally, some commenters were                       parole under INA section 212(a)(6)(A)(i), 8 U.S.C.
                                                                                                                                                       1182(a)(6)(A)(i), or for lacking proper immigrant
                                        for his or her initial immigrant visa                   confused about the effect of the                       entry documents under INA section 212(a)(7)(A), 8
                                        interview prior to the date of                          provision that allows USCIS to deny a                  U.S.C. 1182(a)(7)(A), once he or she leaves the
                                        publication of this final rule, the Form                provisional unlawful presence waiver                   United States to attend a consular interview.



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                                        (2) the results of the background checks                currently registered for TPS under INA                 children through school; (5) paying
                                        reveal conduct or actions that                          section 244, 8 U.S.C. 1254a, is                        taxes; (6) being married to a U.S. citizen
                                        potentially would make an individual                    considered to be maintaining lawful                    or having U.S. citizen children; or (7)
                                        ineligible for an immigrant visa; or (3)                nonimmigrant status10 for purposes of                  owning a home.
                                        the individual has engaged in activities                adjustment of status or change of status.                DHS considered a number of criteria
                                        that could impact the discretionary                     See INA section 244(f)(4), 8 U.S.C.                    and restrictions to make the process
                                        determination regarding whether he or                   1254a(f)(4). A grant of TPS, however,                  operationally manageable without
                                        she warrants a favorable exercise of                    does not cure an unlawful entry prior to               creating delays in processing of other
                                        discretion. If USCIS determines that                    the alien’s grant of TPS or any unlawful               petitions or applications filed with
                                        there is reason to believe that the alien               presence the alien may have accrued                    USCIS or in the DOS/NVC immigrant
                                        may be inadmissible to the United                       prior to being granted TPS. See Serrano                visa process. DHS, however, did not
                                        States at the time of his or her                        v. U.S. Att’y Gen., 655 F.3d 1260 (11th                adopt these limitations or restrictions.
                                        immigrant visa interview based on                       Cir. 2011). If the TPS beneficiary needs               The commenters’ suggestions are
                                        another ground of inadmissibility other                 a waiver of inadmissibility for unlawful               already part of the overall analysis of
                                        than unlawful presence, USCIS will                      presence, that alien is in the same                    whether an individual warrants the
                                        deny the request for the provisional                    position as any other alien who needs                  grant of the provisional unlawful
                                        unlawful presence waiver. USCIS’s                       a waiver of inadmissibility under INA                  presence waiver as a matter of
                                        determination on the provisional                        section 212(a)(9)(B)(v), 8 U.S.C.                      discretion. The factors that play into the
                                        unlawful presence waiver is not a                       1182(a)(9)(B)(v), at the time of the                   discretionary analysis are not limited to
                                        conclusive finding of inadmissibility. It               immigrant visa processing abroad. As a                 one particular set of factors, see, e.g.,
                                        also is not an assessment of whether a                  result, TPS applicants who are                         Matter of Cervantes-Gonzalez, 22 I. & N.
                                        particular crime or pattern of conduct                  immediate relatives of U.S. citizens can               Dec. 560, 566 (BIA 1999); as part of the
                                        would ultimately bar an individual from                 participate in the provisional unlawful                application for provisional unlawful
                                        obtaining a legal status under the                      presence waiver process if they are                    presence waiver, an applicant should
                                        immigration laws.                                       pursuing consular processing of an                     set forth any favorable discretionary
                                           Aliens who may have other grounds                    immigrant visa abroad.                                 factor he or she considers relevant to the
                                        of inadmissibility are not precluded                    9. Additional Eligibility Criteria                     adjudication. By setting restrictions on
                                        from obtaining a waiver of such grounds                                                                        the number of years of unlawful
                                        (if permitted by law) and ultimately an                    A few commenters suggested that                     presence or the date when an individual
                                        immigrant visa. The individual can file                 DHS consider limiting or adding                        married the U.S. citizen, DHS would
                                        a Form I–601, Application for Waiver of                 eligibility criteria to better prioritize              exclude a subset of immediate relatives
                                        Grounds of Inadmissibility with the                     aliens who may be eligible for the                     of U.S. citizens who are or would be
                                        USCIS Lockbox, after he or she attends                  provisional unlawful presence waiver                   otherwise eligible. DHS, therefore, has
                                        the immigrant visa interview and after                  process. Two commenters suggested                      not adopted these suggestions and
                                        DOS conclusively determines that the                    that DHS require an individual to have                 retains the eligibility criteria listed in 8
                                        individual is inadmissible. If the                      a minimum amount of time in the                        CFR 212.7(e)(3).
                                        ground(s) of inadmissibility identified                 United States unlawfully (e.g., two,
                                                                                                three, or five years) before he or she                 D. Filing Requirements and Fees
                                        by the DOS consular officer can be
                                                                                                could file a provisional unlawful                      1. Concurrent Filing
                                        waived, the individual can file a Form
                                                                                                presence waiver. Another commenter
                                        I–601 along with any supporting                                                                                   Many commenters asked DHS to
                                                                                                suggested that DHS limit eligibility to
                                        documentation or evidence needed to                                                                            allow concurrent filing of the Form I–
                                                                                                aliens who were married to a U.S.
                                        demonstrate eligibility for the waiver                                                                         130 or Form I–360, Form I–601A, and,
                                                                                                citizen prior to the effective date of this
                                        and ultimately the immigrant visa.                                                                             if needed, the Form I–212, Application
                                                                                                final rule. One commenter suggested
                                        8. Aliens in Temporary Protected Status                 limiting the eligibility criteria solely to            for Permission to Reapply for
                                                                                                aliens physically present in the United                Admission Into the United States After
                                           Several commenters asked DHS to
                                                                                                States, who are immediate relatives with               Deportation or Removal. Several
                                        clarify how the provisional unlawful
                                                                                                an approved Form I–130, and who are                    commenters noted that USCIS does
                                        presence waiver process affects aliens in
                                                                                                at least 17 years of age. Several                      adjudicate some Form I–212s in the
                                        Temporary Protected Status (TPS) and
                                                                                                commenters suggested that DHS give                     United States pursuant to the
                                        to ensure that such aliens are included
                                                                                                priority to aliens who are minors and                  regulations at 8 CFR 212.2(j) and in
                                        in the provisional unlawful presence
                                                                                                aliens who show good moral character,                  certain cases may grant the Form I–212
                                        waiver process. DHS does not believe
                                                                                                have no criminal record, and                           conditionally in anticipation of the
                                        these additions to the eligibility criteria
                                                                                                demonstrate that they have been                        individual’s departure. Other
                                        are necessary.
                                                                                                productive and responsible as                          commenters argued that applicants
                                           Any alien who meets the
                                                                                                evidenced by paying taxes, mortgages,                  should be allowed to file the provisional
                                        requirements of the provisional
                                                                                                and self-sufficiency. Finally, several                 unlawful presence waiver at any stage of
                                        unlawful presence waiver process and
                                                                                                commenters requested that DHS base                     immigrant petition or visa process.
                                        who is consular processing abroad can
                                                                                                approval of the provisional unlawful                   Several commenters said that DHS
                                        obtain a provisional unlawful presence
                                                                                                presence waiver on factors such as: (1)                could avoid duplicating efforts by
                                        waiver regardless of the alien’s current
                                                                                                Having good moral character; (2) having                processing multiple applications at the
                                        status in the United States.9 An alien
                                                                                                no criminal record; (3) not having                     same time. The commenters believed it
                                          9 USCIS also received two comments asking             abused government benefits; (4) putting                was inefficient for DHS not to allow
                                                                                                                                                       concurrent filing and an injustice to
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                                        whether alien crewman could apply for a
                                        provisional unlawful presence waiver. As stated           10 INA section 244(f)(4), 8 U.S.C. 1254a(f)(4),      waiver applicants to maintain separate
                                        above, any alien in the United States who qualifies     provides that, during the period that an alien is      processes for the Form I–601A and
                                        as an immediate relative and has an approved Form       granted temporary protected status, the alien is
                                        I–130 or Form I–360 may apply for the provisional       considered as being in or maintaining lawful status
                                                                                                                                                       Form I–212, especially when the
                                        unlawful presence waiver, irrespective of his or her    as a nonimmigrant for purposes of adjustment or        separate processes have the effect of
                                        current immigration status, if otherwise eligible.      change of status.                                      increasing the time applicants must


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                                        548                Federal Register / Vol. 78, No. 2 / Thursday, January 3, 2013 / Rules and Regulations

                                        spend outside the United States and                     concurrent filing of Forms I–601A and                  through an immigrant visa if eligible for
                                        away from their families. The                           I–212 is permitted, USCIS in each case                 the provisional unlawful presence
                                        commenters asked DHS to at least                        would have to request and review the                   waiver; some of these commenters
                                        examine the feasibility of concurrently                 applicant’s A-file—a process that can                  believed that this fine or fee would help
                                        processing these applications before the                cause significant delay. This extra                    reduce the national debt.
                                        alien has to leave for his or her                       procedural step in turn would create                      Many opponents of the provisional
                                        immigrant visa interview. Finally, one                  significant delays in USCIS processing                 unlawful presence waiver process
                                        commenter suggested that USCIS should                   of provisional unlawful presence waiver                indicated that the costs of
                                        allow applicants to submit the Form I–                  applications.                                          implementation are too expensive and
                                        601A and Form I–212 prior to the filing                    Second, individuals currently may                   that the U.S. Government should not
                                        of the Form I–130.                                      file an administrative appeal with the                 spend money on illegal aliens. The
                                           DHS has considered these comments                    Administrative Appeals Office (AAO) of                 commenters believed that DHS was
                                        but believes that concurrent filing, or                 a decision denying their Form I–212.                   using tax money to support the new
                                        allowing filing of the Form I–601A                      Consequently, if concurrent filing of                  process. Additionally, two commenters
                                        before the immediate relative petition,                 Forms I–601A and I–212 is permitted,                   recommended that DHS establish a
                                        would undercut the efficiencies USCIS                   and the Form I–212 is denied and an                    premium processing fee to expedite
                                        and DOS will gain through the                           appeal taken, USCIS would have to hold                 processing of the provisional unlawful
                                        streamlined provisional unlawful                        the applicant’s Form I–601A until the I–               presence waiver. The commenters also
                                        presence waiver process. Currently,                     212 appeal is decided and, if the                      suggested that DHS give special
                                        Form I–130 denials are appealable to the                applicant seeks review in federal court,               consideration to federal employees and
                                        DOJ, EOIR Board of Immigration                          until the litigation is resolved. The                  those currently serving in active duty,
                                        Appeals (BIA), and if the alien                         streamlined Form I–601A process is                     reserve personnel, and veterans of the
                                        challenges the denial, USCIS would                      designed to avoid these extra procedural               U.S. Armed Forces. Some commenters
                                        either have to hold the provisional                     steps, which would create backlogs in                  believed that individuals who did not
                                        unlawful presence waivers until the                     USCIS adjudication of the provisional                  commit any felonies should not have to
                                        Form I–130 was decided on appeal or                     unlawful presence waiver.                              pay a fee. Several commenters stated
                                        deny the Form I–601A but reopen it if                      Form I–212 also is used to seek                     that the filing fee was either too high or
                                        the appeal is decided favorably for the                 consent to reapply to overcome                         too low. Some commenters stated that
                                        alien. Both scenarios are inefficient and               inadmissibility for unlawful reentry                   DHS should permit fee waivers because
                                        could cause USCIS to incur additional                   after a prior immigration violation                    the fees were too high; others said that
                                        costs for storing the provisional                       under INA section 212(a)(9)(C), 8 U.S.C.               DHS should double the fee to offset the
                                        unlawful presence waiver applications                   1182(a)(9)(C).11 Aliens who are subject                costs for implementing the new process
                                        and transferring any A-files or receipt                 to this ground of inadmissibility cannot               because the Form I–601A fee was too
                                        files between offices until the                         seek consent to reapply until they have                low. Some commenters also indicated
                                        administrative appeal process is                        been outside of the United States                      that fee waivers would be appropriate
                                        complete. DHS developed this                            continuously for 10 years. Therefore,                  for aliens seeking the provisional
                                        provisional unlawful presence waiver                    allowing the Form I–212 to be filed                    unlawful presence waiver because most
                                        process in close coordination with DOS                  concurrently with the Form I–601A                      of them have low incomes, and that this
                                        to ensure that both agencies could                      might mistakenly imply that those                      is especially true for aliens who work in
                                        efficiently complete the waiver and                     inadmissible under INA section                         the agricultural and similar service
                                        immigrant visa process concurrently                     212(a)(9)(C) can file in the United States             sectors and cannot afford to cover the
                                        within a short timeframe. Allowing the                  and at an earlier time.                                filing costs required by USCIS. Another
                                        filing of the Form I–601A after the Form                2. Filing Fees                                         commenter argued that the elimination
                                        I–130 or Form I–360 is approved is more                                                                        of a fee waiver violated the Due Process
                                        efficient for USCIS and often is more                      One commenter stated that applying                  Clause of the U.S. Constitution’s Fifth
                                        efficient for the applicant as well.                    the current Form I–601 filing fee to the               Amendment because it was not
                                        Therefore, DHS will not accept                          Form I–601A was fiscally irresponsible.                legislated by Congress as was done in
                                        concurrently filed Forms I–130 and I–                   The commenter argued that DHS does                     the context of INA section 245(i), 8
                                        601A, or allow for the filing of the Form               not know how many provisional                          U.S.C. 1255(i). Finally, two commenters
                                        I–601A before approval of the                           unlawful presence waivers it will                      said that the provisional unlawful
                                        immediate relative petition.                            receive or adjudicate and, therefore,                  presence waiver process was too
                                           Moreover, DHS will not permit                        cannot accurately determine the case                   expensive and as a result would be at
                                        concurrent filing of Forms I–601A and                   workload or what resources it will need                risk for underuse.
                                        I–212. While an individual can obtain                   to cover the actual costs for adjudicating                With regard to the immigrant visa fee
                                        advance, conditional consent to reapply                 the Form I–601A. The commenter                         that must be paid to DOS, several
                                        for inadmissibility under INA section                   suggested that DHS increase the filing                 commenters mentioned that the DOS
                                        212(a)(9)(A), 8 U.S.C. 1182(a)(9)(A)                    fee to $650 plus $85 for the biometric                 immigrant visa (IV) fee is only valid for
                                        (prior removal or departure under order                 fee to avoid a fiscal shortfall. Several               one year. They were concerned that the
                                        of removal), while still in the United                  commenters stated that DHS should                      period for adjudication of the
                                        States, DHS will not incorporate the                    require provisional unlawful presence                  provisional unlawful presence waiver
                                        Form I–212 in the provisional unlawful                  waiver applicants to pay a fine or fee                 might last longer than USCIS expects.
                                        presence waiver presence process at this                ($5,000 to $20,000) to remain in the                   The commenters asked DHS to state in
                                        time for the following reasons.                         United States and obtain LPR status                    the regulation that pending provisional
                                           First, most applicants seeking a                                                                            unlawful presence waiver applications
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                                        provisional unlawful presence waiver                       11 The regulations governing the processing of      maintain the validity of the IV fees, so
                                        will not have A-files. However, every I–                advance, conditional consent to reapply in the         that applicants would not forfeit the IV
                                                                                                United States at 8 CFR 212.2(j) do not apply to
                                        212 applicant with a prior removal                      aliens who are subject to this ground of
                                                                                                                                                       fees and have to repay them in the
                                        order has an A-file because he or she                   inadmissibility. See Matter of Torres-Garcia, 23 I&N   future. Some commenters also indicated
                                        was in removal proceedings. If                          Dec. 866 (BIA 2006).                                   that the requirement to pay the


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                                                           Federal Register / Vol. 78, No. 2 / Thursday, January 3, 2013 / Rules and Regulations                                            549

                                        immigrant visa fee before filing the                    however, will not, as a matter of                      waiver of inadmissibility pursuant to
                                        provisional unlawful presence waiver                    discretion, grant fee waivers for the                  INA section 212(a)(9)(B)(v), 8 U.S.C.
                                        was confusing. DHS’s responses to these                 provisional unlawful presence waiver or                1182(a)(9)(B)(v).
                                        views are divided into the four                         associated biometric fee.                                 Costs to the Federal Government
                                        categories below.                                                                                              include the possible costs of additional
                                                                                                (ii) Premium Processing of the
                                        (i) Authority To Charge Immigration                     Provisional Unlawful Presence Waiver                   adjudication personnel associated with
                                        Fees                                                                                                           increased volume and the associated
                                                                                                   The Secretary has established a                     equipment (computers, telephones) and
                                           Congress has given the Secretary                     premium processing fee for certain                     occupancy costs (if additional space is
                                        broad authority to administer and                       employment-based immigration benefit                   required). However, we expect these
                                        enforce the immigration and                             requests under INA section 286(u), 8                   costs to be offset by the additional fee
                                        naturalization laws of the United States.               U.S.C. 1356(u). USCIS provides                         revenue collected for form processing.
                                        As part of this broad authority, the                    premium processing for certain benefit                 DHS will consider the impact of the
                                        Secretary has discretion to set filing fees             types if an authorized applicant or                    provisional unlawful presence waiver
                                        for immigration benefits at a level that                petitioner pays a surcharge of $1,225 for              process workflow and resource
                                        will ensure recovery of the full costs of               the service. The surcharge is paid in                  requirements as a normal part of its
                                        providing adjudication and                              addition to the filing fees for the                    biennial fee review. The biennial fee
                                        naturalization services, including                      immigration benefit requested. USCIS’s                 review determines if fees for
                                        services provided without charge to                     Premium Processing Service (PPS)                       immigration benefits are sufficient in
                                        asylum applicants and certain other                     generally provides faster processing                   light of resource needs and filing trends.
                                        immigrant applicants. INA section                       times and adjudication. USCIS
                                        286(m), 8 U.S.C. 1356(m). The Secretary                 guarantees 15-calendar-day processing                  (iv) DOS Immigrant Visa Fee
                                        also has authority to set fees needed to                to those who choose to use the PPS. In
                                        recover administrative costs. The fee                                                                             DOS is the agency in charge of NVC
                                                                                                general, if USCIS cannot make a final                  procedures. The NVC procedures are
                                        revenue collected under INA section                     decision on the applicant’s benefit
                                        286(m), 8 U.S.C. 1356(m), remains                                                                              outlined in the information materials
                                                                                                request within this period, USCIS will                 that applicants receive from the NVC.
                                        available to DHS to provide immigration                 refund the PPS fee. See 8 CFR
                                        and naturalization benefits and ensures                                                                        As long as the applicant follows NVC
                                                                                                103.7(e)(2). Even if the PPS fee is                    procedures, and has informed the NVC
                                        the collection, safeguarding, and                       refunded, USCIS will endeavor to
                                        accounting of fees by DHS. INA section                                                                         of the filing of the provisional unlawful
                                                                                                continue expedited processing of the                   presence waiver, as outlined in the NVC
                                        286(n), 8 U.S.C. 1356(n).                               underlying benefit request.
                                           The Secretary has discretion to waive                                                                       procedures, the fact that a Form I–601A
                                                                                                   DHS, however, cannot extend
                                        filing fees or exempt certain types of                                                                         is pending will not result in the
                                                                                                premium processing to family-based
                                        benefit requests from the fee                                                                                  invalidation of the NVC processes. A
                                                                                                applications or to waivers of
                                        requirements. The Secretary also has                                                                           pending I–601A also will not affect the
                                                                                                inadmissibility that accompany such
                                        broad discretion to waive any fee when                                                                         validity of DOS immigrant visa fee and
                                                                                                applications because INA section
                                        an individual’s circumstances warrant                                                                          applicants will not be required to
                                                                                                286(u), 8 U.S.C. 1356(u), only allows
                                        such a waiver. Aliens who request a fee                                                                        resubmit the DOS immigrant visa fee
                                                                                                premium processing for employment-
                                        waiver are not entitled to the waiver as                                                                       solely due to the Form I–601A
                                                                                                based petitions and applications.
                                        a matter of law,12 nor do they have a                                                                          processing, provided the applicant
                                                                                                Therefore, DHS is not adopting this
                                        cognizable due process interest in a                                                                           complies with all DOS processing
                                                                                                suggestion. DHS, however, reminds
                                        discretionary fee waiver. The denial of                                                                        requirements.
                                                                                                applicants that they can request
                                        a fee waiver request is a matter of                     expedited adjudication of a provisional                3. Limitations on Filing of Provisional
                                        discretion. The agency also has not                     unlawful presence waiver in accordance                 Unlawful Presence Waivers
                                        provided for administrative appeals of                  with current USCIS expedite
                                        such discretionary decisions.                                                                                     Many commenters questioned why
                                                                                                guidance.13
                                           None of the money used for USCIS                                                                            DHS would limit the number of
                                        adjudication of the provisional unlawful                (iii) Fee Level for the Provisional                    provisional unlawful presence waiver
                                        presence waiver comes from                              Unlawful Presence Waiver                               applications that could be filed by an
                                        appropriated funds. As a fee-based                         DHS has adopted the current cost for                individual applicant. Some commenters
                                        agency, USCIS is primarily funded by                    adjudicating an Application for Waiver                 stated that many applicants will be
                                        applicants seeking immigration benefits.                of Ground of Inadmissibility, Form I–                  unrepresented, and, as a result of their
                                        Applicants are required to pay their                    601($585), as the initial filing fee that              lack of knowledge or understanding of
                                        own fees. USCIS uses these fees to                      will be required for the Form I–601A.                  the immigration process, could be
                                        process applicants benefit requests and                 DHS decided to set the fee for the                     denied solely for technical reasons, such
                                        to cover its administrative costs. USCIS,               provisional unlawful presence waiver                   as failure to present the proper
                                                                                                process to be the same as the current                  documents. Commenters also stated that
                                          12 One commenter referred to INA section 245(i)
                                                                                                Form I–601 waiver application fee                      some pro se aliens may obtain
                                        as an example in which Congress authorized fee                                                                 inadequate, erroneous, or unscrupulous
                                        waivers and asserted that USCIS cannot exclude fee      because the population that will be
                                        waivers in the provisional unlawful presence            eligible for the provisional unlawful                  legal assistance, which could result in
                                        waiver process. Congress has legislated when            presence waiver is a subset of those                   their cases being denied. The
                                        certain categories of aliens are exempt from paying                                                            commenters argued that precluding
                                        certain immigration fees. The authority, however, to
                                                                                                individuals who would otherwise have
                                        waive the provisional unlawful presence waiver          to file under the current Form I–601                   these individuals from filing another
                                                                                                                                                       Form I–601A would be unduly harsh
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                                        application fee lies with the Secretary through her     process. Also, the adjudication of the
                                        authorities under INA sections 103 and 286(m), 8        Form I–601A will be comparable to the                  and that DHS’s duty of fairness to
                                        U.S.C. 1103 and 1356(m), among others. The fact                                                                applicants should trump the agency’s
                                        that Congress has provided for fee waivers in           adjudication of a Form I–601 requesting
                                        different situations does not preclude the Secretary
                                                                                                                                                       interest in administrative efficiency and
                                        from exercising her discretionary authority not to        13 For guidance on USCIS expedite procedures,        finality. Several commenters also
                                        provide for fee waivers in the context of this rule.    please visit www.uscis.gov.                            disagreed with the limitation on filing,


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                                        especially when an applicant withdraws                  with additional evidence or correcting                 and DOS already collects an applicant’s
                                        his or her initial filing.                              the request before USCIS makes a final                 biometrics at the U.S. Embassy or
                                           One commenter requested that USCIS                   decision in the case. USCIS will take                  consulate abroad as part of the
                                        return the fee if the waiver application                into consideration any evidence                        immigrant visa application process.
                                        is withdrawn. Some commenters also                      received when making the decision.
                                        found it a cumbersome and costly                                                                               5. The Minimum Age (17 Years)
                                        approach to require individuals whose                   4. Biometrics                                          Requirement
                                        waivers are denied or withdrawn to file                    Several commenters were concerned                      Several commenters objected to the
                                        another waiver through the regular                      about the biometrics requirement and                   requirement that applicants must be 17
                                        process after the consular interview. A                 the potential harm to applicants,                      years of age or older to file a provisional
                                        few commenters requested that USCIS                     especially if they were denied a                       unlawful presence waiver. The
                                        assign another officer to adjudicate a                  provisional unlawful presence waiver.                  commenters argued that the requirement
                                        new Form I–601A, if the prior                           One commenter believed that the                        is confusing and suggested eliminating
                                        provisional unlawful presence waiver                    biometrics requirement should be                       it altogether. One commenter suggested
                                        request was denied or withdrawn.                        eliminated because it would make                       changing the minimum age from 17 to
                                        Finally, some commenters believed that                  applicants hesitant to apply for the                   18 years old. The commenters asked
                                        it was unjust to exclude applicants from                provisional unlawful presence waiver                   DHS to provide clear instructions to the
                                        the provisional unlawful presence                       because of a perceived inherent danger                 public that individuals do not begin to
                                        waiver process if they had pending                      for undocumented persons to work so                    accrue unlawful presence until they are
                                        adjustment of status applications.                      closely with the U.S. Government. One                  18 years old and stated that it would be
                                           DHS appreciates the valid concerns of                commenter stated that, when DHS                        best if applicants judged on their own
                                        these commenters and recognizes that if                 collects biometrics from applicants, it                whether and when they should file the
                                        it implemented the regulatory text as                   demands a great amount of personal                     provisional unlawful presence waiver
                                        published in the NPRM, aliens with                      information that could put applicants at               application.
                                        compelling circumstances could be                       risk. The commenter believed that the                     It is important for DHS to maintain
                                        precluded from obtaining a provisional                  information collected from biometrics                  the flexibility to reject applications filed
                                        unlawful presence waiver. For these                     could be incriminating and used to                     by applicants under the age of 17 so
                                        reasons, DHS is removing the single-                    initiate investigations. The commenter                 these applicants are not precluded from
                                        filing limitation. If an individual’s                   also noted that the proposed rule failed               filing another waiver application in the
                                        provisional unlawful presence waiver                    to offer applicants any protection from                future. This approach would allow an
                                        request is denied or withdrawn, the                     being placed in removal proceedings.                   applicant to save the cost for filing an
                                        individual may file a new Form I–601A,                  One commenter claimed that the                         unnecessary waiver application until
                                        in accordance with the form                             collection of biometrics was another                   the waiver is actually needed. This
                                        instructions and with the required fees.                way for DHS to ‘‘find fault’’ with the                 approach of allowing individuals who
                                        The applicant’s case must still be                      applicant and bar waiver approval.                     are 17 years or older request a
                                        pending with DOS, and the applicant                     Finally, several commenters believed                   provisional unlawful presence waiver
                                        must notify DOS that he or she intends                  that DHS should allow all individuals to               also enables more efficient processing of
                                        to file a new Form I–601A. In the case                  provide biometrics at a U.S. Embassy or                the immigrant visa application for
                                        of a withdrawn Form I–601A, USCIS                       consulate and, therefore, should include               immediate relative children who are
                                        will not refund the filing fees because                 aliens outside the United States.                      under the age of 18 years and therefore
                                        USCIS has already undertaken steps to                      After consideration of these                        have not yet accrued unlawful presence,
                                        adjudicate the case.                                    comments, DHS is not modifying the                     but who very possibly will turn 18 years
                                           Alternatively, an individual who                     biometrics requirement. Requiring                      old before the DOS consular interview,
                                        withdraws his or her Form I–601A filing                 collection of biometrics helps USCIS                   accrue unlawful presence subsequent to
                                        or whose Form I–601A is denied can                      determine if an alien is potentially                   such time, and potentially trigger the
                                        apply for a Form I–601, Application for                 subject to another ground of                           bars under INA section 212(a)(9)(B)(i), 8
                                        Waiver of Grounds of Inadmissibility                    inadmissibility or if there are negative               U.S.C. 1182(a)(9)(B)(i), upon a
                                        with the USCIS Lockbox, after he or she                 factors or conduct that may affect                     departure. If these children must wait
                                        attends the immigrant visa interview                    whether the individual warrants a                      until they have turned 18 years old and
                                        and after DOS conclusively determines                   favorable exercise of discretion. DHS                  thereafter accrued at least 180 days of
                                        that the individual is inadmissible. If                 only collects the biographic information               unlawful presence to file a Form I–
                                        the ground(s) of inadmissibility                        needed to run such checks and to                       601A, it may be the case that by that
                                        identified by the DOS consular officer                  adjudicate any requested immigration                   time DOS will have already scheduled
                                        can be waived, the individual can file a                benefit. Requiring biometrics also is                  a consular interview, thereby precluding
                                        Form I–601 along with any supporting                    consistent with the agency’s                           the alien from eligibility for this process
                                        documentation or evidence needed to                     enforcement priorities and necessary to                and leading to the hardship to U.S.
                                        demonstrate eligibility for the waiver                  ensure that an individual granted a                    citizen parents that this rulemaking
                                        and ultimately the immigrant visa.                      Form I–601A is not a national security                 intends to avoid.
                                        Since USCIS has now centralized                         risk or public safety threat. USCIS will
                                        adjudication of Forms I–601 filed by                    continue to follow its existing Notice to              6. Effect of the Child Status Protection
                                        aliens abroad, USCIS anticipates that                   Appear (NTA) policies to determine                     Act (CSPA)
                                        the processing time in the traditional                  whether the agency will initiate removal                  Several commenters asked DHS to
                                        Form I–601 waiver process will be                       proceedings against a particular                       clarify that the Child Status Protection
                                        reduced.                                                individual or refer them to ICE. Finally,              Act (CSPA) provisions, which protects
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                                           Applicants and their attorneys or                    DHS will not permit capture of                         certain children from aging-out of
                                        accredited representatives also are                     biometrics abroad because the Form I–                  eligibility for certain immigration
                                        reminded that they may address or                       601A process is a domestic process that                benefits, be applied to the agency’s
                                        correct mistakes by supplementing a                     applies only to aliens who are present                 definition of ‘‘immediate relative’’ for
                                        pending Form I–601A waiver request                      in the United States at the time of filing,            purposes of access to the provisional


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                                        unlawful presence waiver process. DHS                   they explain the entire process, standard                 Many commenters believed that
                                        clarifies in the Form I–601A                            of review, and other requirements. The                 USCIS should automatically find
                                        instructions that an applicant will                     commenters stated that this manual is                  extreme hardship exists in certain
                                        remain eligible for a provisional                       an invaluable resource and that USCIS                  circumstances. The commenters argued
                                        unlawful presence waiver so long as he                  should create a similar one for the                    that extreme hardship should be found
                                        or she remains an ‘‘immediate relative’’                provisional unlawful presence waiver                   based solely on: (1) Separation of the
                                        as defined in the INA, as amended by                    process and make it publicly available.                U.S. citizen from his or her immediate
                                        the CSPA. Thus, an aged-out child may                      Extreme hardship is a statutory                     relative; (2) dangerous conditions in the
                                        still qualify as an ‘‘immediate relative’’              requirement that an applicant must                     applicant’s home country; (3) the fact
                                        for purposes of access to the provisional               meet to qualify for an unlawful presence               that the U.S. citizen and undocumented
                                        unlawful presence waiver process as                     waiver under INA section                               alien have a U.S. citizen child; (4) the
                                        long as the child is classified as an                   212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v).            fact that the applicant would be
                                        immediate relative under the INA. See                   The INA does not define the term, and                  separated from his or her children for
                                        INA section 201(f), 8 U.S.C. 1151(f).                   federal courts have not specifically                   three or 10 years; (5) being a student in
                                                                                                defined extreme hardship through case                  the United States; or (6) the fact that the
                                        E. Adjudication                                                                                                applicant was brought into the United
                                                                                                law. The BIA has stated that extreme
                                        1. Extreme Hardship—Standards and                       hardship is not a definable term of fixed              States at a young age and that he or she
                                        Training                                                and inflexible meaning, but that the                   could qualify under the DREAM Act if
                                           Numerous commenters questioned                       elements to establish extreme hardship                 enacted. Some commenters also
                                        DHS’s policy on extreme hardship.                       are dependent upon the facts and                       suggested that DHS publish clear
                                        Many urged DHS to issue more detailed                   circumstances of each case. See Matter                 criteria for extreme hardship and
                                        guidance on extreme hardship, arguing                   of Cervantes-Gonzalez, 22 I&N Dec. 560,                include factors such as the length of
                                        that the term is unclear and potentially                565 (BIA 1999). When USCIS assesses                    time an alien has been married, the
                                        subjects applicants to arbitrary decision-              whether an applicant has established                   existence of children, the payment of
                                        making by USCIS officers. Other                         extreme hardship, USCIS looks at the                   taxes, strong ties to the United States
                                                                                                totality of the applicant’s circumstances              and life-long assets, lack of eligibility for
                                        commenters indicated that clear
                                                                                                and any supporting evidence to                         adjustment of status, and the loss of a
                                        guidance would allow individuals to
                                                                                                determine whether the qualifying                       business. The commenters believed that
                                        better assess their chances for an
                                                                                                relative will experience extreme                       setting out clear criteria would help
                                        approval. One commenter even
                                                                                                hardship.                                              applicants better understand how to
                                        provided DHS with a list of suggestions
                                                                                                                                                       meet the extreme hardship standard.
                                        for consideration when creating new                        In this final rule, USCIS is not                       Several Congressional commenters
                                        policy guidance on extreme hardship                     modifying how it makes extreme                         stated that DHS has already established
                                        determinations. A number of                             hardship determinations or how it                      a precedent in its regulations that
                                        commenters requested that DHS ensure,                   defines extreme hardship. Consistent                   includes a presumption of extreme
                                        through training, that the extreme                      with how USCIS currently makes                         hardship for certain Salvadorans and
                                        hardship standard is applied evenly and                 extreme hardship determinations,                       Guatemalans under the Nicaraguan
                                        consistently, and that extreme hardship                 USCIS will consider all factors and                    Adjustment and Central American
                                        assessments include consideration of                    supporting evidence that an applicant                  Relief Act (NACARA), Public Law 105–
                                        the financial and emotional effects of                  submits with his or her provisional                    100, as amended, citing 8 CFR
                                        separation. Many commenters thought                     unlawful presence waiver application.                  1240.64(d)(1). These Congressional
                                        that the current extreme hardship                       USCIS also has included in the Form I–                 commenters believed that DHS could
                                        standard applied by USCIS is too rigid                  601A instructions examples of factors to               include similar regulations and even
                                        and should be relaxed. Several                          help provisional unlawful presence                     create a rebuttable presumption that an
                                        commenters also asked DHS to conduct                    waiver applicants understand what can                  extreme hardship requirement has been
                                        extensive training for domestic USCIS                   be provided to establish the required                  satisfied when applicants would be
                                        officers, specifically on country                       extreme hardship to a U.S. citizen                     required to remain for prolonged
                                        conditions, which are critical to making                spouse or parent. USCIS will thoroughly                periods of time in dangerous locations.
                                        an extreme hardship determination. The                  train officers to adjudicate provisional               The Congressional commenters further
                                        commenters stated that USCIS                            unlawful presence waivers, create                      argued that DHS could determine if a
                                        personnel who adjudicate waivers                        standard operating procedures specific                 location was dangerous by whether DOS
                                        abroad already are highly trained, have                 to the Form I–601A process, and                        awards danger pay to its employees
                                        intimate familiarity with specific                      monitor implementation and conduct                     serving in such locations, citing 5 U.S.C.
                                        country conditions, and are                             further training if necessary.                         5928 (awarding danger pay when there
                                        knowledgeable about conditions in the                                                                          is a ‘‘civil insurrection, civil war,
                                                                                                2. Presumption of Extreme Hardship
                                        applicant’s home country. The                                                                                  terrorism, or wartime conditions’’).
                                        commenters were concerned that,                           Several commenters asked DHS to                      Many commenters also stated that the
                                        without extensive training, USCIS                       apply a presumption of extreme                         rule should, at a minimum, consider the
                                        officers in the United States may adopt                 hardship if the applicant has to file a                dangerousness of a location as a highly-
                                        a more restrictive approach. The                        new Form I–601 waiver application                      relevant factor during the adjudication.
                                        commenters wanted USCIS to ensure                       because the DOS consular officer                       One commenter also suggested that
                                        that country-specific knowledge is not                  determined that the applicant was                      extreme hardship should be found if the
                                        lost once waiver processing is moved                    inadmissible on other grounds that can                 U.S. citizen has to relocate to a country
                                        stateside. Several commenters also                      be waived. The commenters argued that                  where Peace Corps does not send its
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                                        mentioned that USCIS should use the                     the extreme hardship would already be                  personnel because it is too dangerous.
                                        adjudicator’s manual and standard                       established as part of the provisional                    DHS is not modifying how it makes
                                        operating procedures created by the                     unlawful presence waiver application                   extreme hardship determinations or
                                        Refugee, Asylum, and International                      and USCIS should not have to re-                       defining extreme hardship for purposes
                                        Operations Directorate (RAIO) because                   adjudicate that aspect of the waiver.                  of the provisional unlawful presence


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                                        waiver process. DHS also is not creating                requirement or approve a provisional                   adjudicate an immigrant visa shortly
                                        presumptions of extreme hardship. As                    unlawful presence waiver for an                        after the applicant appears for his or her
                                        indicated previously, extreme hardship                  individual who has not established that                interview. DHS also believes that this
                                        is not a definable term and elements to                 he or she meets all the statutory                      streamlined process will significantly
                                        establish extreme hardship are                          requirements set by Congress. Only                     shorten the length of time immediate
                                        dependent upon the facts and                            Congress can change the minimum                        relatives must remain outside the
                                        circumstances of each case. Consistent                  statutory requirements individuals must                United States before they can rejoin
                                        with existing practice, USCIS will                      meet to qualify for a waiver of                        their U.S. citizen relatives.
                                        continue to consider all factors and                    inadmissibility. USCIS, therefore,                        In most instances, the provisional
                                        supporting evidence that an applicant                   cannot adopt these suggestions.                        unlawful presence waiver application
                                        submits with his or her provisional                                                                            will be adjudicated at the USCIS
                                                                                                4. Timelines for Adjudication;                         National Benefits Center (NBC). USCIS
                                        unlawful presence waiver application in
                                                                                                Interviews                                             will adjudicate the applications based
                                        assessing if the applicant has
                                        established the requisite extreme                          Several commenters urged DHS to                     on the applicant’s responses in the Form
                                        hardship. DHS also has included in the                  establish clear timeframes for                         I–601A, any supporting documentation,
                                        Form I–601A instructions examples of                    adjudication of the provisional unlawful               and any results from background and
                                        factors to help provisional unlawful                    presence waiver and for immigrant visa                 security checks. The NBC does not
                                        presence waiver applicants understand                   issuance. The commenters stated that                   conduct on-site interviews. In cases
                                        what types of documents can be                          without a clear pronouncement, the                     where an interview would be required,
                                        provided to establish the required                      uncertainties about the duration of the                USCIS would have to transfer the
                                        extreme hardship to a U.S. citizen                      adjudication process would discourage                  applicant’s information and A-File/
                                        spouse or parent.                                       applicants from taking advantage of the                Receipt File to the local district office
                                           In terms of re-adjudicating prior                    provisional unlawful presence waiver                   and schedule the applicant for an
                                        extreme hardship and discretionary                      process. Some commenters believed that                 interview, which could take several
                                        determinations, DHS will not alter its                  it would be beneficial if provisional                  months. Thus, a requirement to
                                        position on this point. Every extreme                   unlawful presence waiver applicants                    interview all provisional unlawful
                                        hardship determination and                              could be interviewed to establish                      presence waiver applicants would
                                        discretionary determination is based on                 extreme hardship and the bona fides of                 undermine the goal of this new
                                        a careful consideration of the evidence                 the marriage and recommended that                      streamlined process. Through the
                                        of record at the time the determination                 USCIS interview applicants                             streamlined provisional unlawful
                                        is made. If the DOS consular officer                    electronically or through a remote                     presence waiver process, DHS hopes to
                                        determines that a new ground of                         interview process. The commenters also                 reduce the time it takes for an applicant
                                        inadmissibility applies in the                          suggested combining the interview for                  to receive a decision from USCIS and
                                        applicant’s case, USCIS may consider                    Form I–130 with the interview for Form                 complete the immigrant visa process
                                        that as a new, material factor when                     I–601A. One commenter believed that                    abroad. DHS, however, has reserved its
                                        assessing whether the applicant                         allowing applicants to be interviewed                  authority to request that a provisional
                                        continues to warrant a favorable                        for the provisional unlawful presence                  unlawful presence waiver applicant
                                        exercise of discretion. As such, USCIS                  waiver would result in what the                        appear for an interview.
                                        reserves the authority to reopen and                    commenter called ‘‘more humane
                                                                                                adjudications.’’                                       5. Requests for Evidence and Notices of
                                        reconsider, on its own motion, an
                                                                                                   DHS declines to adopt these                         Intent To Deny
                                        approval or a denial of a provisional
                                        unlawful presence waiver application at                 suggestions. In terms of processing                       Several commenters believed that
                                        any time, including when new factors                    times, DHS generally publishes the                     DHS should generously use Requests for
                                        come to light after the provisional                     estimated processing times for                         Evidence (RFEs) and Notices of Intent to
                                        unlawful presence waiver applicant’s                    particular immigration benefits and for                Deny (NOIDs) to clarify any weaknesses
                                        immigrant visa interview.                               the local offices where an applicant’s                 or deficiencies in an alien’s provisional
                                                                                                case would be adjudicated. See                         unlawful presence waiver application
                                        3. Eliminating the Extreme Hardship                     https://egov.uscis.gov/cris/                           before USCIS renders a decision.
                                        Requirement                                             processTimesDisplayInit.do (USCIS case                 Otherwise, some eligible applicants
                                           Several commenters suggested that                    processing times). For the provisional                 might be unnecessarily excluded from
                                        DHS completely eliminate the extreme                    unlawful presence waiver application,                  the process. Several commenters asked
                                        hardship requirement for purposes of                    USCIS and DOS are coordinating closely                 DHS to expand the use of RFEs to any
                                        the provisional unlawful presence                       to make sure that the timing of the                    aspect of the provisional unlawful
                                        waiver, rather than try to define it.                   approval of a provisional unlawful                     presence waiver application and not just
                                        Others argued that immediate relatives                  presence waiver application is close to                limit it to the extreme hardship
                                        should not have to prove extreme                        the time of the scheduled immigrant                    determination. The commenters
                                        hardship at all, especially if married to               visa interview abroad. DOS estimates                   believed that this change would allow
                                        a U.S. citizen.                                         that it will schedule the applicant for an             applicants to submit all evidence
                                           Congress enacted the provisions of the               immigrant visa interview within two to                 necessary to establish eligibility for the
                                        INA that describe the statutory                         three months after approval of the                     waiver and give USCIS more
                                        requirements for obtaining a waiver of                  provisional unlawful presence waiver                   information about an applicant’s
                                        inadmissibility under INA section                       and the applicant’s submission of the                  admissibility rather than automatically
                                        212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i).             required immigrant visa processing                     issuing a denial. With respect to NOIDs,
                                        See INA section 212(a)(9)(B)(v), 8 U.S.C.               documents to DOS. This timeframe                       several commenters argued that USCIS
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                                        1182(a)(9)(B)(v). DHS, as part of the                   allows the immediate relative the                      should issue a NOID instead of a denial,
                                        Executive Branch, does not have the                     opportunity to remain united with his                  especially if other grounds of
                                        authority to dispense with any statutory                or her U.S. citizen spouse or parent                   inadmissibility were detected. The
                                        requirement. As a result, DHS cannot                    until shortly before his or her immigrant              commenters also stated that USCIS
                                        eliminate extreme hardship as a                         visa interview and will allow DOS to                   should issue a NOID to at least let the


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                                        applicant know which grounds of                         required waivers and appeal any denial                 and must go abroad to apply again with
                                        inadmissibility USCIS believes may                      of the Form I–601 application to the                   USCIS for a waiver of inadmissibility.
                                        come up at the immigrant visa                           AAO.                                                   The commenters also noted that USCIS
                                        interview.                                                                                                     and DOS would have to coordinate
                                           As stated in the proposed rule, DHS                  F. Denials, Motions To Reopen or
                                                                                                                                                       processes anyway if the waiver
                                        is committed to issuing RFEs to address                 Reconsider, and Appeals
                                                                                                                                                       application is denied or when the
                                        applications it receives that are missing               1. Denials and Motions To Reopen/                      agency elects to reopen and deny the
                                        critical information related to extreme                 Reconsider                                             waiver on its own motion. Finally,
                                        hardship or if applications are missing                    Several commenters stated that USCIS                several commenters said that DHS
                                        critical information related to whether                 should not deny a provisional unlawful                 should give the applicant a chance to
                                        the alien merits a favorable exercise of                presence waiver solely because there are               file a new provisional unlawful
                                        discretion. USCIS officers also retain the                                                                     presence waiver application if the first
                                                                                                other grounds of inadmissibility. The
                                        discretion to issue an RFE on any issue                                                                        request is denied. The commenters
                                                                                                commenters suggested that USCIS
                                        or subject matter, if the adjudicator                                                                          noted that most applicants have been in
                                                                                                approve the provisional unlawful
                                        believes that additional evidence will                                                                         the United States for extended periods
                                                                                                presence waiver and then inform the
                                        aid in the adjudication. DHS anticipates                                                                       of time and have not traveled abroad
                                                                                                applicant of any other potential grounds
                                        that most RFEs will focus on the                                                                               because of the uncertainty in the
                                                                                                of inadmissibility or ineligibility
                                        substantive determination on extreme                                                                           process, the hardships, and potential
                                                                                                discovered during adjudication of the
                                        hardship and any factors that may                                                                              dangers in their home countries.
                                                                                                provisional unlawful presence waiver
                                        establish that the applicant warrants a                                                                        According to these commenters, if
                                                                                                application. Some commenters
                                        favorable exercise of discretion.                                                                              USCIS denied waiver applications for
                                           USCIS will not issue NOIDs in this                   recommended that DHS allow an
                                                                                                                                                       this group and did not permit a second
                                        provisional unlawful presence waiver                    applicant to file a motion to reopen or
                                                                                                                                                       filing in the United States, most of these
                                        process, notwithstanding the provisions                 reconsider if the provisional unlawful
                                                                                                                                                       applicants would simply choose to
                                        of 8 CFR 103.2(b)(16). A NOID provides                  presence waiver application is denied,
                                                                                                                                                       remain in the United States unlawfully
                                        an applicant or petitioner with an                      giving the applicant a chance to rebut
                                                                                                                                                       and without status.
                                        opportunity to review and rebut                         DHS’s findings. Several commenters                        DHS understands the concerns of the
                                        derogatory information of which he or                   and immigrant advocacy groups urged                    commenters but nonetheless believes
                                        she is unaware. In the provisional                      DHS to loosen restrictions on filing of                that allowing motions to reopen or
                                        unlawful presence waiver process,                       motions to reopen or reconsider. The                   reconsider would undercut the
                                        USCIS will not be conducting a full                     commenters argued that these are due                   efficiencies USCIS and DOS will gain
                                        admissibility assessment and, as a                      process protections that are ‘‘integral                through the streamlined provisional
                                        result, will not be issuing a NOID                      parts of our legal system.’’ The                       unlawful presence waiver process. DHS
                                        describing all possible grounds of                      commenters urged DHS to allow such                     also has determined that allowing
                                        inadmissibility. USCIS, instead, will be                motions especially in cases of changed                 motions to reopen or reconsider could
                                        deciding an individual’s eligibility                    circumstances, erroneous denials,                      significantly interfere with the
                                        based on his or her responses to the                    deficient applications filed by pro se                 operational agreements between USCIS
                                        Form I–601A questions and the results                   applicants, and deficient or improper                  and DOS and could substantially delay
                                        from the applicant’s background and                     filings by ‘‘notarios’’ and individuals                waiver and immigrant visa processing.
                                        security checks. Most applicants would                  not authorized to practice immigration                 To alleviate some of the commenters’
                                        be aware of their prior criminal or                     law in the United States. The                          concerns, however, USCIS has
                                        immigration history and the potential                   commenters recommended that DHS do                     eliminated the filing limitation initially
                                        that these offenses might make them                     significant public outreach to                         proposed in the NPRM. Consequently, if
                                        ineligible for the requested benefit. If an             familiarize potential applicants with the              an individual’s provisional unlawful
                                        individual’s provisional unlawful                       new provisional unlawful presence                      presence waiver request is ultimately
                                        presence waiver application is                          waiver process and ensure that                         denied, the individual may file a new
                                        ultimately denied, the individual may                   immigrants are aware of notario                        Form I–601A, in accordance with the
                                        file a new Form I–601A, in accordance                   practices. The commenters also asked                   form instructions, with the required fees
                                        with the form instructions, with the                    DHS to place warnings in the                           and any additional documentation that
                                        required fees and any additional                        instructions to the provisional unlawful               he or she believes might establish his or
                                        documentation that he or she believes                   presence waiver application and post                   her eligibility for the waiver. The
                                        might establish his or her eligibility for              them on the USCIS Web page to help                     applicant’s case must still be pending
                                        the waiver. The applicant’s case must                   applicants to avoid scams. The                         with DOS and the applicant must notify
                                        still be pending with DOS and the                       commenters suggested that DHS provide                  DOS that he or she intends on filing a
                                        applicant must notify DOS that he or                    applicants with links to all 50 State Bar              new I–601A.
                                        she intends to file a new I–601A.                       Associations so that applicants may                       Alternatively, the individual can file
                                           Alternatively, the individual can file               contact the state bars to ensure that the              a Form I–601, Application for Waiver of
                                        a Form I–601, Application for Waiver of                 person assisting them is a licensed                    Grounds of Inadmissibility with the
                                        Grounds of Inadmissibility with the                     attorney or accredited representative                  USCIS Lockbox, after he or she attends
                                        USCIS Lockbox, after he or she attends                  who is authorized to practice                          the immigrant visa interview and after
                                        the immigrant visa interview and after                  immigration law.                                       DOS conclusively determines that the
                                        DOS conclusively determines that the                       With regard to DHS’s concern with                   individual is inadmissible.
                                        individual is inadmissible. At that time,               substantial delays in immigrant visa                      As indicated in the proposed rule,
                                        the applicant can make his or her case                  processing if motions to reopen or                     DHS is retaining its authority and
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                                        about whether a particular criminal                     multiple filings were permitted, the                   discretion to reopen or reconsider a
                                        offense or immigration violation renders                commenters stated that DHS would still                 decision on its own motion. For the
                                        the applicant ineligible for the                        expend additional resources on cases                   provisional unlawful presence waiver
                                        immigrant visa. If needed, the applicant                where an applicant is denied a                         process, USCIS may reopen the decision
                                        will have an opportunity to file all                    provisional unlawful presence waiver                   and deny or approve the provisional


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                                        unlawful presence waiver at any time if                 applications have been approved.                       few commenters urged DHS to allow
                                        USCIS finds that the decision was                       Similarly, consistent with its civil                   appeals at least in cases in which there
                                        issued in error or approval is no longer                enforcement priorities, DHS also does                  were questions of law, errors, or
                                        warranted. USCIS will follow the                        not envision initiating removal                        changed circumstances. Finally, several
                                        requirements of 8 CFR 103.5(a)(5) before                proceedings against aliens whose Form                  commenters stated that DHS, by
                                        reopening a case and denying a waiver                   I–601As are denied or withdrawn prior                  relegating certain questions of
                                        application.                                            to final adjudication. Pursuant to its                 inadmissibility to either DOS or federal
                                           DHS agrees with the need for public                  existing policy governing issuance of                  court, was abdicating its authority to
                                        outreach and materials specific to the                  NTAs and referrals to ICE,14 an                        interpret the law for grounds of
                                        provisional unlawful presence waiver                    individual whose request for a                         inadmissibility where no waiver is
                                        process to help potential applicants                    provisional unlawful presence waiver is                available.
                                        avoid being the victims of scams by                     denied or who withdraws the Form I–                       DHS disagrees with these positions.
                                        individuals who are not authorized to                   601A prior to final adjudication will                  There is no cognizable due process
                                        practice immigration law. USCIS has                     typically be referred to ICE only if he or             interest in access to or eligibility for a
                                        already begun an initiative, the                        she is considered a DHS enforcement                    discretionary, provisional unlawful
                                        Unauthorized Practice of Immigration                    priority—that is, if the individual has a              presence waiver of inadmissibility. See,
                                        Law (UPIL) initiative, to inform the                    criminal history, has committed fraud,                 e.g., Champion v. Holder, 626 F.3d 952,
                                        public about individuals who are not                    or otherwise poses a threat to national                957 (7th Cir. 2010) (‘‘To articulate a due
                                        authorized to practice immigration laws                 security or public safety. Given USCIS’s               process claim, [the individual] must
                                        and has held several stakeholders                       existing NTA policy, which                             demonstrate that she has a protected
                                        outreach engagements on the topic. For                  appropriately focuses USCIS’s referrals                liberty or property interest under the
                                        more details about this initiative, please              to ICE on individuals who are                          Fifth Amendment. Aliens have a Fifth
                                        visit the USCIS Web site at                             considered DHS enforcement priorities,                 Amendment right to due process in
                                        www.uscis.gov/avoidscams.                               DHS will not create a                                  some immigration proceedings, but not
                                        2. Denials and Initiation of Removal                    ‘‘nonremovability’’ clause or                          in those that are discretionary.’’)
                                        Proceedings                                             confidentiality provision to preclude                  (citations omitted). The provisional
                                                                                                automatic initiation of removal                        unlawful presence waiver process is
                                           Several commenters questioned the                    proceedings. DHS will follow the NTA
                                        usefulness of the proposed rule,                                                                               purely discretionary and no alien has a
                                                                                                issuance policy in effect at the time of               right to obtain a waiver from the
                                        especially because it did not contain                   the adjudication to determine if it will
                                        any confidentiality provisions or make                                                                         Secretary of Homeland Security.15
                                                                                                initiate removal proceedings against an
                                        clear what would happen to an                           applicant whose Form I–601A                               Even assuming that such an interest
                                        individual if a provisional unlawful                    provisional unlawful presence waiver                   exists, none of the commenters cite any
                                        presence waiver is denied. Many                         application is denied. Furthermore, if                 case or statute that supports the claim
                                        thought that undocumented individuals                   DHS discovers acts, omissions, or post-                that the Due Process Clause of the Fifth
                                        will be hesitant or deterred from filing                approval activity that would meet the                  Amendment requires an Executive
                                        the provisional unlawful presence                       criteria for NTA issuance or determines                agency to provide for administrative
                                        waiver as it would expose their status in                                                                      appeal of an agency decision. Section
                                                                                                that the provisional unlawful presence
                                        the United States and cause their                                                                              10(c) of the Administrative Procedure
                                                                                                waiver was granted in error, DHS may
                                        families even more stress. Numerous                                                                            Act, 5 U.S.C. 704, does permit an agency
                                                                                                issue an NTA, consistent with DHS’s
                                        commenters asked DHS to implement a                                                                            to provide an administrative appeal and
                                                                                                NTA issuance policy, as well as reopen
                                        confidentiality provision so that the                                                                          if the agency chooses to do so, the
                                                                                                the provisional unlawful presence
                                        denial of the provisional unlawful                                                                             agency can also, by regulation, make the
                                                                                                waiver approval and deny the waiver
                                        presence waiver request does not                                                                               filing of an administrative appeal a
                                                                                                request.
                                        automatically trigger removal                                                                                  necessary prerequisite to judicial
                                        proceedings or notice to ICE that the                   3. Appeals                                             review. See Darby v. Cisneros, 509 U.S.
                                        individual’s case was denied; others                       Several commenters argued that DHS                  137 (1993). But nothing in section 10(c)
                                        requested that DHS include a                            should permit appeals of denials while                 or the Darby decision mandates that an
                                        ‘‘nonremovability’’ clause in the                       the applicant is in the United States.                 agency must provide for an
                                        regulatory text. Some commenters also                   The commenters claimed that denial of                  administrative appeal.16 In upholding
                                        urged USCIS to work closely with CBP                    a provisional unlawful presence waiver
                                        to ensure that CBP will not initiate                    was equivalent to a final waiver denial
                                                                                                                                                          15 Even with respect to ordinary Form I–601

                                        removal proceedings against an alien                                                                           waivers, Congress specifically gave the Secretary
                                                                                                and should be subject to appeal rights                 discretion to decide who should or should not be
                                        who is departing from the United States                 similar to those allowed for the current               granted an unlawful presence waiver under INA
                                        to attend the immigrant visa interview.                 Form I–601 denials that are filed with                 section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v).
                                           DHS is committed to focusing its                     the AAO. One commenter argued that                     This discretion is not diminished by the fact that
                                        finite enforcement resources on its                     not allowing aliens to appeal essentially
                                                                                                                                                       one element of that determination rests on a legal
                                        enforcement priorities, including                                                                              requirement—satisfying the extreme hardship
                                                                                                meant that DHS would adjudicate all                    standard. Even if an applicant establishes extreme
                                        individuals who pose a threat to public                 waivers favorably. The commenter also                  hardship, the Secretary is not required to favorably
                                        safety or national security. As indicated               stated that denying appeals would not                  exercise her discretion in the adjudication of the
                                        in the proposed rule, DHS will follow                   meet the due process requirements. A
                                                                                                                                                       waiver. See Matter of Mendez-Moralez, 21 I&N Dec.
                                        current agency policy for issuance of                                                                          296, 301 (BIA 1996) (‘‘Extreme hardship is a
                                                                                                                                                       requirement for eligibility, but once established it
                                        Notices to Appear (NTAs). See                             14 See USCIS Memorandum, Revised Guidance            is but one favorable discretionary factor to be
                                        www.uscis.gov/NTA. However,
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                                                                                                for the Referral of Cases and Issuance of Notices to   considered.’’).
                                        consistent with its civil enforcement                   Appear (NTAs) in cases Involving Inadmissible and         16 To the contrary, the Court’s conclusion in

                                        priorities, DHS does not envision                       Removable Aliens (Nov. 7, 2011), available at:         Darby that pursuing an administrative appeal is a
                                                                                                http://www.uscis.gov/USCIS/Laws/Memoranda/             prerequisite to judicial review only if required by
                                        initiating removal proceedings against                  Static_Files_Memoranda/                                statute or the agency chooses to provide for such
                                        aliens or referring aliens to ICE whose                 NTA%20PM%20(Approved%20as%20final%2011-                an administrative appeal and also chooses to make
                                        provisional unlawful presence waiver                    7-11).pdf.                                             it mandatory strongly suggests that an agency is not



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                                        the BIAs’ practice of ‘‘affirmance                      commenters requested that aliens not                   authorization and advance parole. DHS
                                        without opinion’’ of immigration judge                  accrue unlawful presence during the                    is not altering its position on interim
                                        decisions, for example, several courts of               pendency of Form I–601A or while                       benefits as initially stated in the
                                        appeals have recognized that Due                        waiting for their immigrant visa                       proposed rule. Finally, the grant of a
                                        Process does not require an agency to                   interview. The commenters believed                     provisional unlawful presence waiver
                                        provide for administrative appeal of its                that a pending provisional unlawful                    does not guarantee that an individual
                                        decisions. See, e.g., Zhang v. U.S. Dep’t               presence waiver application should                     with an approved immigrant visa will
                                        of Justice, 362 F.3d 155, 157 (2d Cir.                  ‘‘stop the clock’’ on any immigration                  be admitted to the United States by CBP.
                                        2004); Loulou v. Ashcroft, 354 F.3d 706,                violation. Another commenter stated                       Operationally, USCIS and DOS have
                                        709 (8th Cir. 2003); Falcon Carriche v.                 that the final rule should clearly specify             coordinated closely on this streamlined
                                        Ashcroft, 350 F.3d 845, 850 (9th. Cir.                  that the pendency of a Form I–601A                     process and the close timeframe
                                        2003); Mendoza v. U.S. Att’y Gen., 327                  protects an individual from further                    between processing of the Form I–601A
                                        F.3d 1283, 1289 (11th Cir. 2003);                       accrual of unlawful presence and places                approval and the immigrant visa
                                        Albathani v. INS, 318 F.3d 365, 376 (1st                the individual in a period of stay                     application will encourage individuals
                                        Cir. 2003); Guentchev v. INS, 77 F.3d                   authorized by the Secretary described in               to speed up the consular process and to
                                        1036, 1037–38 (7th Cir. 1996).                          INA section 212(a)(9)(B)(ii), 8 U.S.C.                 depart from the United States as quickly
                                           Finally, if USCIS denies an alien’s                  1182(a)(9)(B)(ii). Finally, several                    as possible. Any issuance of interim
                                        Form I–601A, the alien has two                          commenters stated that approval of the                 benefits or specific authorized periods
                                        alternate avenues for obtaining a waiver                provisional unlawful presence waiver                   of stay will hinder this goal and the
                                        of inadmissibility: (1) Filing a new Form               should guarantee immigrant visa                        integrity of the program. DHS added
                                        I–601A, in accordance with the form                     issuance and the right to return to the                language to the final rule to make clear
                                        instructions, with the required fees and                United States.                                         that applicants are not eligible for
                                        any additional documentation that he or                    A waiver of inadmissibility is an                   interim benefits and that a pending or
                                        she believes might establish his or her                 ancillary benefit to a primary                         approved application for provisional
                                        eligibility for the waiver or (2) filing a              application that would give an alien                   unlawful presence waiver does not
                                        Form I–601, Application for Waiver of                   legal immigrant status; the waiver, by                 authorize any interim benefits. See
                                        Grounds of Inadmissibility with the                     itself, does not convey a legal status. In             section 212.7(e)(2).
                                        USCIS Lockbox, after he or she attends                  the provisional unlawful presence                         DHS reminds the public that the filing
                                        the immigrant visa interview and after                  waiver process, the primary application                or approval of a provisional unlawful
                                        DOS conclusively determines that the                    is the immigrant visa over which DOS,                  presence waiver application will not: (1)
                                        individual is inadmissible. The Form I–                 not USCIS, has jurisdiction. The waiver                Confer any legal status; (2) protect
                                        601 is appealable to the AAO.                           only addresses grounds of                              against the accrual of additional
                                           Appeals should be reserved for                       inadmissibility (in this instance,                     unlawful presence; (3) authorize an
                                        actions that are based on a                             unlawful presence) that may preclude                   alien to enter the United States without
                                        comprehensive assessment of the                         DOS from issuing the immigrant visa at                 securing a visa or other appropriate
                                        applicant’s admissibility. Jurisdiction                 the time of the applicant’s interview                  entry document; (4) convey any interim
                                        over the final admissibility                            abroad. If DOS approves the immigrant                  benefits (e.g., employment
                                        determination in the context of the                     visa, the alien can be admitted to the                 authorization, advance parole, or
                                        Form I–601 lies with the AAO and with                   United States as a LPR, assuming CBP                   eligibility to be paroled based solely on
                                        DOS in the context of the immigrant                     determines that he or she is otherwise                 a pending or approved Form I–601A); or
                                        visa eligibility determination. It would                admissible and entitled to the                         (5) protect an alien from being placed in
                                        be an inefficient use of resources for                  immigrant visa classification. See INA                 removal proceedings or removed from
                                        DHS to allow an administrative appeal                   sections 204(e), 211(a), and 221(h); 8                 the United States, in accordance with
                                        of a decision that does not take into                   U.S.C. 1154(e), 1181(a), and 1201(h).                  current DHS policies governing
                                        consideration the full inadmissibility                  Interim benefits provided on the basis of              initiation of removal proceedings and
                                        determination or any other factors that                 something pending with DHS or DOJ are                  use of prosecutorial discretion.
                                        may be discovered during the course of                  granted only in connection with a                      H. Automatic Revocation
                                        the immigrant visa interview abroad.                    pending application for an immigration
                                        DHS, therefore, is retaining its policy of              status within the United States. DHS                     Several commenters questioned the
                                                                                                does not have authority to issue Social                regulatory text in proposed 8 CFR
                                        not affording an administrative appeal
                                                                                                Security numbers; the Social Security                  212.7(a)(4)(iv), which provides for
                                        of the denial of a provisional unlawful
                                                                                                Administration has sole jurisdiction                   automatic termination of the validity of
                                        presence waiver application.
                                                                                                over the issuance of Social Security                   an approved waiver under INA section
                                        G. Effect of Pending or Approved                        numbers. Finally, DHS has no authority                 216(f), 8 U.S.C. 1186a(f), when the
                                        Provisional Unlawful Presence Waivers                   to issue driver’s licenses; the issuance of            conditional resident status of an alien
                                           Many commenters asked USCIS to                       these types of documents are governed                  admitted under INA section 216, 8
                                        consider allowing aliens with pending                   by the laws and regulations of the                     U.S.C. 1186a, is terminated. The
                                        provisional unlawful presence waiver                    individual U.S. states, which prescribe                commenters argued that this provision
                                        applications to travel and work while                   the conditions for obtaining and                       was contrary to the INA and should be
                                        waiting for a decision from USCIS to                    issuance of identification cards and                   removed from the final rule. The
                                        travel abroad for their immigrant visa                  drivers’ licenses.                                     commenters noted that under INA
                                        interview. Several commenters also                         As stated in the proposed rule, the                 section 216(f), 8 U.S.C. 1186a(f), waivers
                                        suggested that individuals with pending                 approval of a provisional unlawful                     under INA section 212(h), 8 U.S.C.
                                                                                                presence waiver does not create a lawful               1182(h) (for certain criminal grounds of
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                                        provisional unlawful presence waiver
                                        applications be given Social Security                   immigration status, extend any                         inadmissibility), and INA section 212(i)
                                        numbers and driver’s licenses. Some                     authorized period of stay, protect aliens              8 U.S.C. 1182(h) (for fraud or
                                                                                                from removal or law enforcement                        misrepresentation), are the only types of
                                        required to allow for administrative appeal at all,     action, or grant any other immigration                 waivers that are automatically
                                        in the absence of a statutory mandate.                  benefits, including temporary work                     terminated upon termination of


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                                        conditional resident status. As a result,               case. Since the provisional unlawful                   individual’s removal proceedings are
                                        they assert, DHS lacks the authority to                 presence waiver is a discretionary                     administratively closed and have not
                                        implement this regulatory change when                   process, DHS will retain its authority on              been recalendared at the time of filing
                                        Congress has already clearly spoken on                  revocations and its position on                        the Form I–601A. DHS is not limiting
                                        the matter.                                             automatic revocations. Consistent with                 eligibility solely to individuals whose
                                           A few commenters also argued that                    8 CFR 103.2(b)(16), if USCIS discovers                 cases were closed pursuant to the ICE
                                        DHS should eliminate automatic                          derogatory information that was                        Prosecutorial Discretion (PD) initiative.
                                        revocation or adjudicate revocations                    unknown to the applicant, USCIS will                   Any alien whose removal proceedings
                                        separate and apart from the provisional                 provide notice of such information and                 are administratively closed and have not
                                        unlawful presence waiver process. The                   give the applicant an opportunity to                   been recalendared at the time of filing
                                        commenters believed that it would be                    respond prior to any decision to deny                  the Form I–601A, can apply for a
                                        more efficient for DHS to reserve the                   the application. DHS, however, will not                provisional unlawful presence waiver. If
                                        right to review an approved provisional                 allow aliens to appeal a decision to                   USCIS approves the provisional
                                        unlawful presence waiver rather than                    revoke a provisional unlawful presence                 unlawful presence waiver for an
                                        automatically revoke it, especially when                waiver.                                                individual whose removal proceedings
                                        DOS determines that the applicant is                                                                           are administratively closed, the
                                        subject to another ground of                            I. Comments on Form I–601A,                            individual should seek termination or
                                        inadmissibility or there are other                      Application for Provisional Unlawful                   dismissal of his or her removal
                                        negative discretionary factors that were                Presence Waiver, and the Form                          proceedings before departing the United
                                        not considered at the time of the Form                  Instructions                                           States to appear at the immigrant visa
                                        I–601A adjudication. The commenters                       DHS invited the public to comment                    interview to avoid possible delays in his
                                        also opined that DHS would not need to                  on the proposed rule and the Form I–                   or her immigrant visa processing or risk
                                        re-adjudicate any portion of the waiver                 601A and the instructions to accompany                 becoming ineligible for the immigrant
                                        that has the same or lesser standard                    the form. DHS has considered the                       visa based on another ground of
                                        needed for waiving the newly                            comments to the Form I–601A and the                    inadmissibility. DHS has updated the
                                        discovered ground of inadmissibility                    form instructions. While DHS has not                   form and its instructions accordingly.
                                        (e.g., if the new ground of                             adopted all suggestions made by                           DHS has incorporated many of the
                                        inadmissibility required a showing of                   comments, below is a list of changes to                commenters’ suggested edits while
                                        extreme hardship, DHS could simply                      the form and instructions that DHS                     rewriting this part of the form to clarify
                                        adopt the provisional unlawful presence                 incorporated as a result of these                      ambiguities and to correct inaccuracies.
                                        waiver determination on extreme                         comments.                                              DHS also has revised the form and
                                        hardship, when adjudicating the waiver                                                                         instructions to clarify that USCIS ‘‘may’’
                                        request for the new ground of                           1. Comments on Form                                    find an applicant ineligible for a
                                        inadmissibility).                                       a. Part 1, Information About                           provisional unlawful presence waiver if
                                           DHS agrees that the statute at INA                   Applicant—Immigration or Criminal                      USCIS determines that there is reason to
                                        section 216(f), 8 U.S.C. 1186a(f), only                 History Records                                        believe the Department of State may
                                        addresses automatic revocation of                                                                              find the applicant ineligible for a
                                        approved waivers under INA sections                       Several commenters suggested that                    ground of inadmissibility other than
                                        212(h) or (i). As a result, it has clarified            USCIS allow individuals in removal                     unlawful presence. Regardless of
                                        that the amendment to 8 CFR                             proceedings to apply for provisional                   whether USCIS approves or denies the
                                        212.7(a)(4), regarding treatment of                     unlawful presence waivers if their                     provisional unlawful presence waiver,
                                        certain waivers upon the termination of                 removal proceedings had been                           an immigrant visa applicant should
                                        conditional resident status under INA                   administratively closed pursuant to                    present evidence of eligibility and any
                                        section 216(f), 8 U.S.C. 1186a(f), and                  ICE’s Prosecutorial Discretion (PD)                    documents needed to establish
                                        automatic revocation of approved                        initiative. Several commenters also                    admissibility to the consular officer at
                                        waivers of inadmissibility, only applies                stated that this section of the form was               the time of his or her immigrant visa
                                        to approved waivers based on INA                        confusing and/or inaccurate.                           interview. The approval of a provisional
                                        sections 212(h) and (i), 8 U.S.C. 1182(h)               Specifically, the commenters believed                  unlawful presence waiver does not
                                        and (i), and is revising 8 CFR 212.7(a)(4)              this section was inaccurate because it                 guarantee that the consular officer will
                                        accordingly.                                            indicates that an applicant will be                    find the applicant eligible for an
                                           As to revocations, DHS has not                       ineligible for a provisional unlawful                  immigrant visa. Also, the denial of a
                                        adopted the commenters’ suggestions.                    presence waiver if the applicant                       provisional unlawful presence waiver
                                        DHS believes that revocation of an                      answers ‘‘Yes’’ to certain questions                   does not preclude the applicant from
                                        approved case requires an assessment of                 relating to other possible grounds of                  filing a new Form I–601A, in
                                        the facts and circumstances as they                     inadmissibility. The commenters also                   accordance with the form instructions,
                                        existed at the time the case was                        believed the questions were too broad to               with the required fees and any
                                        approved as well as any newly                           lead to a firm finding of inadmissibility              additional documentation that he or she
                                        discovered information that may have                    and should be amended to say that the                  believes might establish his or her
                                        affected the officer’s decision or                      applicant ‘‘may’’ not be eligible and that             eligibility for the waiver. The
                                        discretion at the time of adjudication.                 USCIS ‘‘may’’ deny the application if                  applicant’s case must still be pending
                                        When USCIS reviews a case for possible                  the applicant answers ‘‘Yes’’ to those                 with DOS, and the applicant must notify
                                        revocation, USCIS looks at the facts and                questions. These commenters also                       DOS that he or she intends to file a new
                                        law at the time the case was approved                   identified specific inaccuracies and                   Form I–601A.
                                        to determine if the applicant was in fact               provided suggested edits to revise this                   Alternatively, the applicant can file a
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                                        eligible for the benefit requested. USCIS               section.                                               Form I–601, Application for Waiver of
                                        also reviews any newly discovered                         DHS has amended the final rule to                    Grounds of Inadmissibility with the
                                        information to see if it is relevant and                indicate that an individual in removal                 USCIS Lockbox, after his or her
                                        could have potentially affected the                     proceedings may apply for a provisional                immigrant visa interview at the U.S.
                                        officer’s discretionary assessment in the               unlawful presence waiver if the                        Embassy or consulate abroad. The


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                                        purpose of these eligibility questions is               final rule to clarify when an alien is                 of this final rule. DHS has updated the
                                        not for USCIS to pre-adjudicate                         ineligible for a provisional unlawful                  form and its instructions accordingly.
                                        immigrant visa eligibility, but to limit                presence waiver because of a previously
                                                                                                                                                       c. Part 3, Information About Qualifying
                                        the provisional unlawful presence                       scheduled immigrant visa interview.
                                                                                                                                                       Relative
                                        waiver process to individuals whose                        USCIS will first look at whether the
                                        only potential ground of inadmissibility                scheduled immigrant visa interview is                     Many commenters asked DHS to
                                        is based on prior unlawful presence in                  based on the approved immediate                        allow eligible applicants to show
                                        the United States. All other potential                  relative petition (I–130 or I–360) that                extreme hardship to a LPR spouse or
                                        grounds of inadmissibility and/or                       accompanies the Form I–601A. If it is,                 parent, if applicable, since the statute
                                        ineligibility need to be addressed with                 USCIS will then look at the Department                 authorizes a waiver of unlawful
                                        the consular officer during the                         of State’s Consular Consolidated                       presence based on a showing of extreme
                                        immigrant visa interview.                               Database (CCD) to determine the date on                hardship to a spouse or parent who is
                                           Finally, one commenter suggested                     which the Department of State initially                either a U.S. citizen or LPR.
                                        that the form be enhanced by                            acted to schedule the applicant for his                   DHS has considered these comments
                                        incorporating a detailed questionnaire,                 or her immigrant visa interview (i.e., the             but is not adopting the suggested
                                        similar to that of Form I–601, aimed at                 date of scheduling itself and not the                  change. As stated in the proposed rule,
                                        uncovering other potential grounds of                                                                          a primary purpose for creating the
                                                                                                date and time the applicant must appear
                                        inadmissibility.                                                                                               provisional unlawful presence waiver
                                                                                                for the interview).
                                           DHS did not include a detailed                                                                              process is to reduce the separation of
                                                                                                   If the date that the Department of
                                        questionnaire covering every potential                                                                         U.S. citizens and their immediate
                                                                                                State initially acted to schedule the
                                        ground of inadmissibility because the                                                                          relatives. Focusing on hardship to U.S.
                                                                                                immigrant visa interview is prior to the               citizens is consistent with permissible
                                        Form I–601A may only be used to waive                   date of publication of this final rule,
                                        unlawful presence. The purpose of the                                                                          distinctions that may be drawn between
                                                                                                January 3, 2013, then the alien is                     U.S. citizens and aliens. It also is
                                        section entitled ‘‘Immigration or
                                                                                                ineligible to apply for a provisional                  consistent with the Secretary’s authority
                                        Criminal History Records’’ is to give
                                                                                                unlawful presence waiver. If the date                  to administer the immigration laws and
                                        applicants an opportunity to explain
                                                                                                that Department of State initially acted               determine the most efficient means for
                                        any possible immigration or criminal
                                                                                                to schedule the immigrant visa                         effectuating the waiver process. See 77
                                        history records which USCIS may
                                                                                                interview is on or after the publication               FR at 19908.
                                        uncover during routine system and
                                                                                                date of this final rule, the alien is
                                        background checks. DHS will not make                                                                           d. Interviews
                                                                                                eligible to apply for a provisional
                                        any changes to the form based on this
                                                                                                unlawful presence waiver. The actual                      One commenter suggested that when
                                        comment.
                                                                                                date and time that the alien is scheduled              USCIS requires an interview for a
                                        b. Part 2, Information About Immediate                  to appear for the interview is not                     provisional unlawful presence waiver,
                                        Relative Petitions and Consular                         relevant for the eligibility                           USCIS should allow the applicant to
                                        Processing                                              determination. This rule applies even if               choose to either appear at a local USCIS
                                           Many commenters suggested that DHS                   the alien failed to appear for his or her              field office for an in-person interview or
                                        allow individuals to cancel or                          interview, cancelled the interview, or                 have a video-conferenced interview
                                        reschedule their immigrant visa                         requested that the interview be                        with an adjudicator at a USCIS service
                                        interviews in order to seek a provisional               rescheduled. Therefore, USCIS may                      center using appropriate technology
                                        unlawful presence waiver.                               reject or deny any Form I–601A filed by                (e.g., Skype).
                                           In response to these suggestions, DHS                an alien who USCIS determines that the                    DHS reviewed these comments but
                                        considered a number of criteria and                     Department of State, prior to the date of              did not adopt the suggestions. DHS does
                                        restrictions to make the process                        publication of this final rule, initially              not anticipate that many provisional
                                        operationally manageable without                        acted to schedule the alien’s immigrant                unlawful presence waiver applicants
                                        creating delays in processing of other                  visa interview for the approved                        will require an in-person interview.
                                        petitions or applications filed with                    immediate relative petition upon which                 Also, USCIS does not conduct
                                        USCIS or in the DOS immigrant visa                      the Form I–601A is based. See section                  interviews at the NBC, namely because
                                        process. By including aliens who were                   212.7(e)(4)(iv).                                       of its remote location and the type of
                                        scheduled for an interview prior to the                    An alien who is ineligible to apply for             benefit requests adjudicated by that
                                        publication of this final rule, the                     a provisional unlawful presence waiver                 center, which are generally paper-based
                                        projected volume of cases could                         because of a previously scheduled                      decisions. USCIS also will not conduct
                                        significantly increase and would create                 immigrant visa interview may still                     video interviews in lieu of in-person
                                        backlogs not only in the provisional                    qualify for a provisional unlawful                     interviews when such interviews are
                                        unlawful presence waiver process, but                   presence waiver if he or she has a new                 required. Therefore, DHS will not make
                                        also in adjudication of other USCIS                     DOS immigrant visa case because (1)                    the suggested change to the form.
                                        benefits. The increased volume would                    DOS terminated the immigrant visa                      2. Comments on Instructions
                                        also adversely impact DOS and its                       registration associated with the
                                        immigrant visa process.                                 previously scheduled interview, and                    a. Eligibility Criteria—Pending
                                           For these reasons, DHS will not                      they have a new immediate relative                     Adjustment Applications
                                        expand the provisional unlawful                         petition; or (2) the alien has a new                      Several commenters were confused
                                        presence waiver to include individuals                  immediate relative petition filed on his               about what it means to have a pending
                                        whose immigrant visa interviews were                    or her behalf by a different petitioner.               application for adjustment of status and
                                        scheduled before the date of publication                   USCIS will reject or deny any Form I–               did not understand why this would
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                                        of this final rule January 3, 2013, even                601A filed by an alien who was                         affect eligibility for a provisional
                                        if the consulate or individual cancelled                scheduled for an interview prior to the                unlawful presence waiver.
                                        or rescheduled the immigrant visa                       date of publication of this final rule,                   DHS will not remove the restriction
                                        interview after the date of publication of              even if the alien’s interview is                       for individuals who have an application
                                        this final rule. DHS adds language to the               rescheduled after the date of publication              for adjustment of status pending with


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                                        USCIS. Individuals who are eligible to                  instructions to make clear applicants                  unlawful presence waiver but ineligible
                                        obtain LPR status while inside the                      will remain eligible for a provisional                 for adjustment of status to remain in the
                                        United States through the adjustment of                 unlawful presence waiver as long as the                United States and adjust their status to
                                        status process and intend to pursue LPR                 applicants remain ‘‘immediate                          a LPR. Several commenters asked DHS
                                        status through that process do not need                 relatives’’ as defined in the INA, as                  to reinstate INA section 245(i), 8 U.S.C.
                                        the provisional unlawful presence                       amended by the CSPA. Thus, an aged-                    1255(i). Others asked if DHS could
                                        waiver. The provisional unlawful                        out child may still qualify as an                      reduce the number of years an alien
                                        presence waiver is only valid for the                   ‘‘immediate relative’’ for purposes of                 must remain outside the United States
                                        purpose of seeking an immigrant visa                    access to the provisional unlawful                     because of unlawful presence under
                                        outside the United States. To avoid                     presence waiver process as long as the                 INA section 212(a)(9)(B), 8 U.S.C.
                                        confusion, DHS has updated the form                     child is classified as an immediate                    1182(a)(9)(B). A few commenters also
                                        instructions to clarify that this                       relative under the INA.                                asked if DHS could include a waiver of
                                        restriction only applies to individuals                                                                        INA section 212(a)(6)(C)(ii), 8 U.S.C.
                                                                                                e. Statement From Applicant
                                        with a pending Form I–485, Application                                                                         1182(a)(6)(C)(i) (false claim to U.S.
                                        to Register Permanent Residence or                         One commenter suggested adding a                    citizenship). Some commenters asked
                                        Adjust Status.                                          sentence in Part 5 of the instructions to              DHS to grant waivers even if the
                                                                                                explain that applicants may supplement                 applicants did not meet all statutory
                                        b. Limitations on Filing of Provisional                 their statements on extreme hardship                   requirements. One commenter said that
                                        Unlawful Presence Waivers                               and factors warranting a favorable                     DHS should eliminate the discretionary
                                           Many commenters suggested that DHS                   exercise of discretion with an attached                portion of the waiver in its entirety.
                                        remove the restriction to the number of                 letter. DHS added the information as                   Others wanted DHS to simply grant
                                        times an individual may seek a                          requested to the Form I–601A                           legal status to individuals married to
                                        provisional unlawful presence waiver or                 instructions.                                          U.S. citizens, irrespective of whether
                                        modify it to allow re-filing of the                     f. Penalties                                           they had an approved petition or
                                        provisional unlawful presence waiver                                                                           needed a provisional unlawful presence
                                        application.                                               One commenter suggested adding a                    waiver. They argued that if an
                                           DHS considered these comments and                    reminder in the instructions that                      individual is the spouse of a U.S. citizen
                                        has changed the final rule to reflect that              applicants read the section entitled                   then such an individual should simply
                                        if an individual’s provisional unlawful                 ‘‘Penalties’’ before the applicant signs               be able to become a LPR of the United
                                        presence waiver request is denied or                    the application. DHS added the                         States.
                                        withdrawn prior to final adjudication,                  reminder on the form and in the form                      Congress has prescribed the statutory
                                        the individual may file a new Form I–                   instructions, as requested.                            requirements for obtaining LPR status
                                        601A, in accordance with the form                       g. Required Documents—Check List                       through adjustment of status in the
                                        instructions, with the required fees and                                                                       United States. Congress also established
                                                                                                   One commenter suggested adding a                    the current grounds of inadmissibility
                                        any additional documentation that he or
                                                                                                checklist to assist applicants with                    and the conditions for any waivers
                                        she believes might establish his or her
                                                                                                information on the types of documents                  associated with such grounds. DHS does
                                        eligibility for the waiver. The
                                                                                                and statements that should be submitted                not have the authority to change or
                                        applicant’s case must still be pending
                                                                                                with the provisional unlawful presence                 dispense with those statutory
                                        with DOS and the applicant must notify
                                                                                                waiver application. DHS added a                        requirements. DHS cannot reinstate INA
                                        DOS of his or her intent to file a new
                                                                                                separate section with a checklist as                   section 245(i), 8 U.S.C. 1225(i), or take
                                        Form I–601A.
                                           Alternatively, the individual can file               requested.                                             any action that would grant permanent
                                        a Form I–601, Application for Waiver of                 h. Unauthorized Practice of Immigration                resident status to individuals who do
                                        Grounds of Inadmissibility with the                     Law                                                    not meet the statutory requirements for
                                        USCIS Lockbox, after he or she attends                                                                         that status. Only Congress can amend
                                                                                                  One commenter suggested adding a
                                        the immigrant visa interview and after                                                                         the statutory requirements that
                                                                                                warning regarding the unauthorized
                                        DOS conclusively determines that the                                                                           individuals must meet to qualify for
                                                                                                practice of immigration law.
                                        individual is inadmissible. DHS has                       DHS agrees with this suggestion. In                  adjustment of status. DHS, therefore,
                                        updated the form and instructions                       2011, USCIS started an initiative—the                  cannot adopt these recommendations.
                                        accordingly.                                            Unauthorized Practice of Immigration                   However, DHS supports comprehensive
                                                                                                Law (UPIL) initiative—to educate the                   immigration reform, and DHS will
                                        c. Qualifying Relatives                                                                                        implement any legislation that may be
                                                                                                public about potential fraud and scams
                                           One commenter suggested adding                                                                              enacted by Congress, including any
                                                                                                in the immigration context. USCIS has
                                        ‘‘child’’ as a qualifying relative for                                                                         authorized extension of INA section
                                                                                                posted information about the UPIL
                                        establishing extreme hardship. DHS                                                                             245(i), 8 U.S.C. 1225(i).
                                                                                                initiative on its Web site. DHS
                                        cannot adopt this suggestion because
                                                                                                encourages applicants to review the                    2. Fraud Detection and Prevention;
                                        Congress limited the qualifying
                                                                                                information at www.uscis.gov/                          National Security
                                        relationship for purposes of establishing
                                                                                                avoidscams. DHS also has added a link                     Some commenters argued that the
                                        extreme hardship to spouses or parents.
                                                                                                to this Web site on the form                           Federal Government’s focus should be
                                        DHS cannot change this statutory
                                                                                                instructions.                                          on enforcement and deterring illegal
                                        requirement.
                                                                                                J. Miscellaneous Comments                              entry and marriage fraud. Others opined
                                        d. Child Status Protection Act                                                                                 that the provisional unlawful presence
                                           One commenter asked DHS to clarify                   1. Statutory Changes                                   waiver process was a ‘‘back door’’
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                                        in the Form I–601A instructions how                        A large number of supporters of the                 through which illegal immigrants who
                                        the provisional unlawful presence                       rule indicated that the proposed rule                  pose a threat to national security could
                                        waiver relates to children who benefit                  did not go far enough. The commenters                  be granted a waiver and LPR status.
                                        from the CSPA. DHS has added                            asked DHS to allow individuals who                        A core mission of DHS is to protect
                                        language to the Form I–601A                             were eligible for the provisional                      national security, public safety, and the


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                                        integrity of the immigration process.                   petitioner and the conditional                         the AAO has reduced processing time
                                        DHS has a number of preventative                        permanent resident fail to do so, the                  from 27 to 19 months, and reduced the
                                        measures in place, as provided by law                   alien’s conditional permanent resident                 number of cases in the backlog by more
                                        and through agency policy, to address                   status is terminated automatically, and                than 1,400. USCIS anticipates this rate
                                        matters relating to national security and               any waiver granted in connection with                  of reduction to continue and plans on
                                        fraud. DHS incorporates these measures                  the status under INA sections 212(h) or                reducing processing time for waivers to
                                        through regulations and standard                        (i), 8 U.S.C. 1182(h) or (i), is                       6 months by June 2013. These various
                                        operating procedures that bolster the                   automatically terminated. Furthermore,                 efforts demonstrate the Department’s
                                        adjudications process. USCIS’s Fraud                    if USCIS determines that the marriage                  continued commitment to timely
                                        Detection and National Security (FDNS)                  was entered into to evade the                          adjudication of waivers and customer
                                        Directorate focuses on its fraud and                    immigration laws, USCIS cannot                         service with the resources available.
                                        national security mission. FDNS                         approve future petitions for that alien.
                                                                                                                                                       4. Other Immigrant Visa Requirements
                                        investigates fraud and national security                See INA section 204(c), 8 U.S.C. 1154(c).
                                        issues relating to the immigration                      USCIS also reserves the authority, as it                  A few commenters suggested that
                                        benefit process and makes appropriate                   does generally for other benefit requests,             individuals who are eligible for the
                                        referrals to ICE, DOJ, and other law                    to interview the alien and the U.S.                    provisional unlawful presence waiver
                                        enforcement agencies. USCIS has                         citizen spouse in connection with the                  should have the option to complete the
                                        established standard operating                          provisional unlawful presence waiver                   medical examination required for
                                        procedures in field offices for referrals               application in the exercise of discretion.             immigrant visa issuance in either the
                                        to FDNS on potential fraud cases that                      Another preventive measure is the                   United States or abroad. DHS did not
                                        may require additional review. USCIS’s                  provisional unlawful presence waiver                   adopt this suggestion.
                                        Office of Policy and Strategy is                        requirement that the applicant appear                     DOS has jurisdiction for health-
                                        responsible for developing future                       for biometrics capture at a USCIS                      related inadmissibility determinations
                                        benefit fraud assessments. For fraud                    Application Support Center (ASC). The                  in the overseas immigrant visa
                                        prevention, FDNS has initiated fraud                    biometrics requirement allows USCIS to                 application context; DOS, therefore,
                                        training for Immigration Services                       run thorough background and security                   requires immigrant visa applicants to
                                        Officers (ISOs) to detect any patterns or               checks on individuals seeking an                       have the required medical examination
                                        increase in fraudulent practices in a                   immigration benefit to determine if an                 performed by a DOS-designated panel
                                        particular application type or area of the              alien is not only potentially subject to               physician abroad. See 22 CFR 42.66.
                                        United States. Additionally, USCIS                      other grounds of inadmissibility or not                DOS and the Centers for Disease Control
                                        already has processes in place,                         eligible for a favorable exercise of                   and Prevention within the Department
                                        including requiring additional                          discretion, but also whether the alien                 of Health and Human Services set the
                                        interviews and home site visits,                        poses a national security or public                    criteria and parameters for these
                                        conducted by specially trained                          safety risk.                                           medical exams depending on country
                                        immigration officers throughout the                                                                            conditions. While USCIS has designated
                                                                                                3. Backlog Reduction                                   civil surgeons for certifications in other
                                        United States, to assess whether a
                                        marriage was entered into to evade                         One commenter suggested that DHS                    contexts, these civil surgeons are not
                                        immigration laws. These processes                       first clear all application backlogs                   recognized by DOS and therefore cannot
                                        provide strong tools for combating                      abroad and at the AAO before                           complete the required medical
                                        potential fraud.                                        implementing any new process.                          examination for purposes of the visa
                                           Congress provided several measures                   Commenters also indicated that DHS                     issuance abroad. Operationally,
                                        aimed at preventing marriage fraud,                     should give special consideration to                   allowing provisional unlawful presence
                                        focusing especially on the potential for                individuals who have a pending waiver                  waiver applicants to complete the
                                        fraud in marriages of less than two                     application that was filed abroad.                     medical examination in the United
                                        years’ duration. For instance, Congress                    USCIS has already undertaken several                States could cause delays and backlogs
                                        mandated that aliens married less than                  efforts to reduce the backlogs in                      at DOS. DHS, therefore, will not adopt
                                        two years generally are subject to                      adjudication, both abroad and at the                   this suggestion.
                                        conditional resident status for two years               AAO. As of June 4, 2012, USCIS has
                                                                                                implemented centralization of certain                  5. Departure Requirement and Third-
                                        after admission as an immigrant. See                                                                           Country Processing
                                        INA section 216, 8 U.S.C. 1186a; 8 CFR                  Form I–601 filings in the United States.
                                        part 216; 8 CFR 235.11. Once USCIS                      USCIS has dedicated additional                            Several commenters asked why
                                        approves an immediate relative petition                 resources on a temporary basis to                      approved provisional unlawful presence
                                        for an alien married to a U.S. citizen,                 expeditiously process the cases filed                  waiver applicants are required to return
                                        and DOS determines that the alien is                    prior to centralization. USCIS                         to their home country to complete the
                                        admissible and eligible for an immigrant                anticipates that the residual cases filed              immigrant visa requirement. The
                                        visa, the alien can seek admission to the               prior to centralization and during the                 commenters suggested that these
                                        United States as an LPR. If, however, the               transition period that recently ended on               applicants should not have to travel to
                                        alien married the U.S. citizen less than                December 4, 2012, will be completed                    a dangerous place like Ciudad Juarez,
                                        two years before the date of admission,                 within about six months of the effective               Mexico, but instead complete their
                                        the alien is admitted conditionally for a               date of this final rule. By moving most                process in a safe third country like
                                        two-year period.                                        of the adjudication case load to the                   Canada. Many commenters said that
                                           In general, the U.S. citizen petitioner              United States for these cases, USCIS                   requiring individuals to depart would
                                        and the conditional permanent resident                  expects to reduce the filing and                       have a significant impact on U.S. citizen
                                        must jointly seek to remove the                         processing times for overseas filers of                family members, especially if the
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                                        conditions within the 90-day period                     Form I–601.                                            individual is the primary financial
                                        immediately preceding the second                           The AAO has also undertaken various                 provider for the family. The commenters
                                        anniversary of the date the alien                       backlog reduction efforts in the context               also said that departure would cause
                                        obtained conditional permanent                          of administrative appeals. Since July                  U.S. citizen family members to become
                                        residence status. If the U.S. citizen                   2011, the waiver adjudication branch of                dependent on the U.S. Government if


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                                        the immediate relative had to remain                    broken immigration system as a whole.                  applicants and attorneys could file
                                        outside of the United States for a                      While the commenters generally                         online, they would save money, time,
                                        prolonged period of time. Several other                 supported some type of CIR, their views                paper, and the mailing costs that
                                        commenters suggested that DHS                           on what should be included in a CIR bill               currently accompany paper filings. The
                                        eliminate the departure requirement                     varied significantly.                                  commenters stated that E-filing is
                                        altogether or at least allow provisional                   Some commenters stated that CIR is                  consistent with USCIS’s current
                                        unlawful presence waiver applicants to                  needed to legalize the current immigrant               Transformation Initiative.
                                        be interviewed in the United States or                  population in the United States and to                    DHS agrees with the commenters that
                                        pick up their immigrant visa at their                   create guest worker programs that will                 it should move toward electronic filing
                                        country’s embassy in the United States.                 benefit the U.S. economy. The                          of immigration benefits. In fact, USCIS
                                        Finally, several Congressional                          commenters argued that legalization                    already is transforming its immigration
                                        commenters urged DHS to coordinate                      will result in significant economic                    benefit process and recently launched
                                        with DOS so that provisional unlawful                   benefits to the United States and help                 its new electronic filing and
                                        presence waiver applicants do not have                  solve many of our current immigration                  adjudication system known as USCIS
                                        to return home. The commenters stated                   problems. These commenters supported                   Electronic Immigration System (USCIS
                                        that the departure requirement should                   the idea of reuniting U.S. citizen                     ELIS). USCIS ELIS allows individuals to
                                        be eliminated entirely or, alternatively,               families and stated that the                           establish a USCIS ELIS online account
                                        that DOS should identify additional                     Administration should focus on legal                   and, currently, to apply online for an
                                        consulates for processing of the                        immigration and naturalization to                      extension or change of their
                                        provisional unlawful presence waiver                    ensure that immigrants are fully aware                 nonimmigrant status for certain visa
                                        and immigrant visa issuance. The                        of the rights and opportunities available              types. USCIS ELIS also enables USCIS
                                        commenters also suggested that DOS’s                    to them.                                               officers to review and adjudicate online
                                        NVC could assign immigrant visa                            Many commenters opposed the                         filings from multiple agency locations
                                        petitions and provisional unlawful                      provisional unlawful presence waiver                   across the country. USCIS believes that
                                        presence waiver applications to                         process because they believed it would                 the Transformation Initiative is an
                                        designated consular posts in safe and                   encourage illegal immigration and that                 important step forward for the agency
                                        convenient locations, citing the                        it was a form of ‘‘backdoor amnesty.’’                 and is working to expand system
                                        authority as part 9 of the Foreign Affairs              Some commenters believed that                          features and functionality in additional
                                        Manual (FAM) section 42.61, Note 2.1.                   Congress should enact stronger                         releases this calendar year and beyond.
                                        Finally, the commenters said that DHS                   penalties against those who enter                      In future releases of USCIS ELIS, USCIS
                                        should consider using its parole                        illegally and enforce the current laws                 will add form types and functions,
                                        authority broadly to eliminate the need                 against those who deliberately violated                including waivers of inadmissibility,
                                        for immediate family members to travel                  U.S. immigration law. The commenters                   gradually expanding the system to cover
                                        abroad to obtain an immigrant visa to                   also believed that the focus should be                 filing and adjudication of all USCIS
                                        which they are entitled under current                   on border security and legal                           immigration benefits. USCIS will notify
                                        law.                                                    immigration, not on aliens who made                    the public when such expansions and
                                           DOS has jurisdiction over consular                   the choice to come to the United States                additions of form types occur.
                                        processing and setting the location for                 illegally. One commenter noted that the
                                                                                                current immigration policy was not                     K. Comments on the EO 12866/13563
                                        immigrant visa application filing and
                                                                                                working and that the United States                     Analysis
                                        interviews. See 22 CFR 42.61. DHS,
                                        therefore, will not alter this requirement              needs a ‘‘comprehensive top down                         DHS received several comments on
                                        and, as stated above, cannot change the                 rewrite’’ of all the immigration laws. A               the volume projection included in the
                                        statutory requirements for adjustment of                few commenters were opposed to the                     analysis, especially as it relates to the
                                        status in the United States. In response                provisional unlawful presence waiver                   DHS projection of additional demand.
                                        to the request for DHS to broadly use its               process because they believed it was                   Many commenters believed that
                                        parole authority for provisional                        politically motivated and not designed                 application volume is understated. One
                                        unlawful presence waiver applicants,                    to fix the current immigration system.                 commenter stated that the Federal
                                        DHS will continue to exercise its                          Fixing the current immigration system               Government stands to earn over one
                                        authority to parole applicants for                      is a top priority for DHS, and the                     billion dollars from the change. Another
                                        admission into the United States on a                   Administration is committed to                         commenter suggested that DHS examine
                                        case-by-case basis, reviewing the unique                comprehensive immigration reform.                      rates of use of health care and public
                                        circumstances and facts that relate to                  Congress has the power to amend the                    education as points for comparison in
                                        each individual’s case to determine                     immigration laws to create a workable                  determining demand for the provisional
                                        whether the individual’s circumstances                  system that unites families, improves                  unlawful presence waiver. This
                                        warrant a discretionary grant of parole                 the U.S. economy, and preserves                        commenter suggested that using
                                        based on urgent humanitarian factors or                 national security and public safety.                   undocumented immigrant access to
                                        as a significant public benefit. INA                    USCIS will do everything possible to                   health care and public education as
                                        section 212(d)(5), 8 U.S.C. 1182(d)(5).                 prepare for successful implementation                  models will reveal that the provisional
                                        With this rule, DHS is not changing its                 of any comprehensive immigration                       unlawful presence waiver is at risk for
                                        current policy on the use of its parole                 reform legislation and ensure that the                 underuse. Many commenters noted that
                                        authority.                                              integrity of the U.S. immigration system               the costs of obtaining an immigrant visa
                                                                                                is maintained.                                         limit those who can afford to apply for
                                        6. Comprehensive Immigration Reform                                                                            the provisional unlawful presence
                                           Many commenters, including                           7. Transformation                                      waiver and that increasing the cost with
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                                        numerous individuals who signed group                      Several commenters urged DHS to                     required biometric submission is
                                        petitions, said that the focus should be                convert the provisional unlawful                       another barrier to participation. A
                                        on comprehensive immigration reform                     presence waiver process and immigrant                  commenter was concerned the cost of
                                        (CIR) rather than a ‘‘patchwork’’ of small              visa process to an electronic process.                 this rule would add to the national debt.
                                        initiatives that do not fix the current                 The commenters believed that if                        Another commenter argued that current


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                                        immigration laws and the provisional                    1. Section 103.7(c)(3)(i)                              proceedings before EOIR. See section
                                        unlawful presence waiver rule                                                                                  212.7(e)(1).17
                                        disproportionately impact children of                      In the proposed rule, DHS noted in
                                                                                                the supplementary text that applicants                 4. Section 212.7(e)(2)
                                        immigrant families who have a greater
                                        likelihood to be either low-income or                   for a provisional unlawful presence                       DHS restructured this provision and
                                        living under the poverty line and are not               waiver cannot seek a fee waiver for the                added language to make clear that
                                        as likely to have resources needed to                   Form I–601A filing fees or the required                approval of the provisional unlawful
                                        make use of the waiver option.                          biometric fees. See 77 FR at 19910. DHS                presence waiver is discretionary and
                                           As stated repeatedly throughout the                  incorrectly referenced proposed                        does not constitute a grant of any lawful
                                        analysis, DHS was unable to precisely                   regulatory text at 8 CFR 103.7(b)(1)(i)(C)             immigration status or create a period of
                                        project application volumes for the                     and inadvertently omitted the correct                  stay authorized by the Secretary for
                                        provisional unlawful presence waiver                    citation to the regulatory provision                   purposes of INA section 212(a)(9)(B), 8
                                        due to unavailability of data on those                  being amended and the amendatory                       U.S.C. 1182(a)(9)(B). See section
                                        who are unlawfully present. Historical                  text. DHS has corrected this error and                 212.7(e)(2)(i). DHS also clarified that a
                                        estimates show only aliens who have                     has included an amendment to 8 CFR                     pending or approved provisional
                                        taken the steps to obtain an immigrant                  103.7(c)(3)(i) in this final rule to clarify           unlawful presence waiver does not
                                        visa. DHS did conduct a reasonable                      that fee waivers are not available for the             authorize any interim benefits such as
                                        methodological approach based on                        biometric fee or filing fees for the Form              employment authorization or advance
                                        those who have made use of                              I–601A. See section 103.7(c)(3)(i).                    parole. See section 212.7(e)(2)(ii).
                                        inadmissibility waivers under the                                                                              5. Section 212.7(e)(3)
                                                                                                2. Section 212.7(a)(4)(iv)
                                        current process.                                                                                                  Many commenters asked DHS to
                                           DHS does not believe that using                         DHS proposed an amendment to 8                      expand eligibility for the provisional
                                        public health and education records                     CFR 212.7(a)(4) to provide that                        unlawful presence waiver process to
                                        would better refine our estimates. As the               termination of an alien’s conditional                  other categories of aliens seeking to
                                        commenter noted, these services are                     LPR status also would result in                        immigrate to the United States.
                                        underutilized by undocumented                           automatic revocation of an approved                       DHS considered the commenters’
                                        immigrants. Furthermore, neither these                  waiver of inadmissibility. See 77 FR at                suggestions but is limiting the
                                        models nor the others that were                         19912 and 19921. Several commenters                    provisional unlawful presence waiver to
                                        examined differentiate undocumented                     noted that INA section 216(f), 8 U.S.C.                immediate relatives of U.S. citizens.
                                        immigrants with U.S. citizen immediate                  1186a(f), only allows for automatic                    After assessing the effectiveness of the
                                        relatives from those undocumented                       revocation of waivers of inadmissibility               provisional unlawful presence waiver
                                        immigrants with other immigrant/                        approved under INA sections 212(h)                     process and its operational impact,
                                        citizen family compositions. Since only                 and (i), 8 U.S.C. 1182(h) and (i). DHS                 DHS, in consultation with DOS and
                                        immediate relatives of U.S. citizens may                agrees and has revised the amendment                   other affected agencies, will consider
                                        apply for provisional unlawful presence                 to 8 CFR 212.7(a)(4) to clarify that                   expanding the provisional unlawful
                                        waivers, DHS does not believe that                      automatic revocation of approved                       presence waiver process to other
                                        using the suggested models will offer a                 waivers upon termination of conditional                categories.
                                        more reliable means of estimating the                   resident status only applies to approved               6. Former Section 212.7(e)(4)(ii)(H)
                                        additional demand.                                      waivers based on INA section 212(h), 8
                                           While DHS acknowledges that the                      U.S.C. 1182(h) (waivers for certain                       DHS initially proposed to reject a
                                        costs of obtaining an immigrant visa                                                                           provisional unlawful presence waiver
                                                                                                criminal offenses) and INA section
                                        may be a constraint on demand, and                                                                             application if an alien has not indicated
                                                                                                212(i), 8 U.S.C. 1182(i) (waivers for
                                        agree these costs will have more impact                                                                        on the application that the qualifying
                                                                                                fraud or willful misrepresentation of a
                                        on low-income immigrant families, the                                                                          relative is a U.S. citizen spouse or
                                                                                                material fact). See section
                                        only additional cost of the provisional                                                                        parent. See 77 FR at 19922. DHS has
                                                                                                212.7(a)(4)(iv).
                                        unlawful presence waiver process                                                                               determined that this criterion is more
                                        beyond the existing waiver process is                   3. Section 212.7(e)(1)                                 appropriate for an adjudicative decision
                                        the costs incurred for submitting                                                                              and that this assessment should not be
                                        biometrics. Relative to the other costs,                   During discussions about the                        made through a review during the
                                        biometric costs represent approximately                 proposed provisional unlawful presence                 intake process. Thus, DHS has deleted
                                        eight percent of the total cost of                      waiver process and how it would affect                 this rejection criterion in the final rule.
                                        obtaining an immediate relative                         aliens in removal proceedings, a
                                                                                                                                                       7. Section 212.7(e)(4)(iv)
                                        immigrant visa. The costs of obtaining                  question arose regarding the authority of
                                                                                                DOJ IJs and whether IJs would                             DHS proposed excluding aliens from
                                        an immigrant visa are not costs of this
                                                                                                adjudicate Forms I–601A for aliens in                  the provisional unlawful presence
                                        rule. Finally, this final rule will not add
                                                                                                removal proceedings. DHS determined                    waiver process who were already
                                        to the national debt. As explained in the
                                                                                                that it would be more efficient and                    scheduled for their immigrant visa
                                        proposed rule at 77 FR 19919, this final
                                        rule is not expected to impose                          appropriate to have Form I–601A
                                                                                                                                                         17 Under 8 CFR 1240.1(a)(1)(ii), immigration
                                        additional costs on the federal                         waivers centralized and adjudicated by
                                                                                                                                                       judges (IJs) have authority to adjudicate certain
                                        government since the fee revenues                       one agency, USCIS, especially given the                waiver applications made by aliens in removal
                                        collected should offset the form                        streamlined nature of the process and                  proceedings. However, IJs will not be adjudicating
                                        processing cost.                                        the need for close coordination with                   provisional unlawful presence waiver applications
                                                                                                                                                       under this rule because all aliens who are in
                                                                                                DOS once a waiver is decided. DHS,
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                                        V. Regulatory Amendments                                                                                       removal proceedings—including those whose cases
                                                                                                therefore, added a new paragraph to                    were administratively closed and have been
                                          DHS adopted most of the proposed                      clarify that the Application for                       recalendared or who are subject to an
                                                                                                Provisional Unlawful Presence Waiver,                  administratively final order of removal are
                                        regulatory amendments without change,                                                                          ineligible for the provisional unlawful presence
                                        except for the following provisions                     Form I–601A, will be filed only with                   waiver by operation of this final rule. See 8 CFR
                                        noted below:                                            USCIS even if an alien is in removal                   212.7(e)(4).



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                                        interviews with DOS. See 77 FR at                       from the provisional unlawful presence                 or the alien was a victim of individuals
                                        19921. DHS has retained this                            waiver process, except those whose: (1)                or entities not authorized to practice
                                        requirement. DHS now adds language to                   Removal proceedings had been                           immigration law. For these reasons,
                                        the final rule to clarify when an alien is              terminated or dismissed; (2) Notices to                DHS agrees that a one-time filing
                                        ineligible for a provisional unlawful                   Appear (NTAs) had been cancelled; and                  limitation is too restrictive and is
                                        presence waiver because of a previously                 (3) cases had been administratively                    removing the single-filing limitation in
                                        scheduled immigrant visa interview.                     closed but subsequently were reopened                  this final rule. If an individual’s
                                           USCIS will first look at whether the                 to grant voluntary departure. See 77 FR                provisional unlawful presence waiver
                                        scheduled immigrant visa interview is                   at 19922. In this final rule, DHS allows               request is denied or withdrawn, the
                                        based on the approved immediate                         aliens in removal proceedings to                       individual may file a new Form I–601A,
                                        relative petition (I–130 or I–360) that                 participate in this new provisional                    in accordance with the form
                                        accompanies the Form I–601A. If it is,                  unlawful presence waiver process but                   instructions and with the required fees.
                                        USCIS will then look at the Department                  only if their removal proceedings are                  The applicant’s case must still be
                                        of State’s Consular Consolidated                        administratively closed and have not                   pending with DOS, and the applicant
                                        Database (CCD) to determine the date on                 been recalendared at the time of filing                must notify DOS that he or she intends
                                        which the Department of State initially                 the Form I–601A. See section                           to file a new Form I–601A. In the case
                                        acted to schedule the applicant for his                 212.7(e)(4)(v). Through this final rule,               of a withdrawn Form I–601A, USCIS
                                        or her immigrant visa interview (i.e., the              the Form I–601A and its accompanying                   will not refund the filing fees because
                                        date of scheduling itself and not the                   instructions, and additional information               USCIS has already undertaken steps to
                                        date and time the applicant must appear                 published on the USCIS Web site, DHS                   adjudicate the case.
                                        for the interview).                                     also will notify such applicants that, if                 Alternatively, an individual who
                                           If the date that the Department of                   granted a provisional unlawful presence                withdraws his or her Form I–601A filing
                                        State initially acted to schedule the                   waiver, applicants should seek                         prior to final adjudication, or whose
                                        immigrant visa interview is prior to the                termination or dismissal of their                      Form I–601A is denied, can apply for a
                                        date of publication of this final rule,                 removal proceedings. The request for                   Form I–601, Application for Waiver of
                                        January 3, 2013, then the alien is                      termination or dismissal should be                     Grounds of Inadmissibility with the
                                        ineligible to apply for a provisional                   granted before they depart for their                   USCIS Lockbox, after he or she attends
                                        unlawful presence waiver. If the date                   immigrant visa interviews to avoid                     the immigrant visa interview and after
                                        that Department of State initially acted                possible delays in their immigrant visa                DOS conclusively determines that the
                                        to schedule the immigrant visa                          processing or risk becoming ineligible                 individual is inadmissible. DHS,
                                        interview is on or after the publication                for the immigrant visa based on another                therefore, has removed this provision
                                        date of this final rule, the alien is                   ground of inadmissibility. See section                 from the final rule.
                                        eligible to apply for a provisional                     212.7(e)(2). Finally, DHS made
                                        unlawful presence waiver. The actual                    conforming changes to the filing                       10. Section 212.7(e)(5)(ii)
                                        date and time that the alien is scheduled               requirements in section 212.7(e)(5)(i) to                DHS corrected a typographical error
                                        to appear for the interview is not                      include aliens who are in removal                      in the prefatory language to this section,
                                        relevant for the eligibility                            proceedings that are administratively                  removing the term ‘‘application’’ the
                                        determination. This rule applies even if                closed and have not been recalendared                  second time it appears in the paragraph.
                                        the alien failed to appear for his or her               at the time of filing the Form I–601A.                 See section 212.7(e)(5)(ii).
                                        interview, cancelled the interview, or
                                        requested that the interview be                         9. Section 212.7(e)(4)(ix)                             11. Section 212.7(e)(5)(ii)(A)
                                        rescheduled. Therefore, USCIS may                          For operational reasons, DHS initially                 DHS proposed a list of rejection
                                        reject or deny any Form I–601A filed by                 proposed rejecting applications filed by               criteria for Forms I–601A filed at the
                                        an alien who USCIS determines that the                  aliens who had previously filed a Form                 Lockbox, including the criterion to
                                        Department of State, prior to the date of               I–601A provisional unlawful presence                   reject for failure to pay the required or
                                        publication of this final rule, initially               waiver application with USCIS. DHS                     correct fee for the waiver application.
                                        acted to schedule the alien’s immigrant                 designed the provisional unlawful                      See 77 FR 19922. DHS inadvertently
                                        visa interview for the approved                         presence waiver process to streamline                  referenced the biometric fee as a basis
                                        immediate relative petition upon which                  waiver and immigrant visa processing                   for rejection in the supplementary
                                        the Form I–601A is based. See section                   by closely tying adjudication of the                   information. See 77 FR 19911. DHS has
                                        212.7(e)(4)(iv).                                        Form I–601A to the NVC’s immigrant                     modified the regulatory text to make
                                           An alien who is ineligible to apply for              visa processing schedule. DHS                          clear that a Form I–601A will only be
                                        a provisional unlawful presence waiver                  considered the potential impact of                     rejected for failure to pay the required
                                        because of a previously scheduled                       multiple filings on this schedule, the                 or correct filing fee and not the
                                        immigrant visa interview may still                      possible delays to the immigrant visa                  biometric fee. See section
                                        qualify for a provisional unlawful                      process, and the potential for agency                  212.7(e)(5)(ii)(A). Individuals who have
                                        presence waiver if he or she has a new                  backlogs.                                              failed to pay the required or correct
                                        DOS immigrant visa case because (1)                        Many commenters, however,                           biometric fee will be notified of that
                                        DOS terminated the immigrant visa                       expressed concern that limiting the                    failure. 8 CFR 103.17(b). USCIS will not
                                        registration associated with the                        program to one-time filings could                      process or adjudicate applications filed
                                        previously scheduled interview, and                     potentially exclude individuals who                    by individuals who do not pay the
                                        they have a new immediate relative                      otherwise would qualify for the                        required or correct biometric fee.
                                        petition; or (2) the alien has a new                    provisional unlawful presence waiver.
                                                                                                   Upon consideration of these                         12. Section 212.7(e)(5)(ii)(G)
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                                        immediate relative petition filed on his
                                        or her behalf by a different petitioner.                comments, DHS agrees that an alien                        DHS proposed rejecting provisional
                                                                                                could have compelling reasons for filing               unlawful presence waiver applications
                                        8. Section 212.7(e)(4)(v)                               another provisional unlawful presence                  filed by aliens who were already
                                           DHS initially proposed excluding all                 application, especially in cases where                 scheduled for their immigrant visa
                                        aliens who were in removal proceedings                  an alien’s circumstances have changed                  interviews with DOS. See 77 FR at


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                                        19921. DHS has retained this                            presence waiver could not file a new                   rule that may result in a $100 million or
                                        requirement. DHS now adds language to                   Form I–601A. Instead, such aliens                      more expenditure (adjusted annually for
                                        the final rule to clarify when an alien is              would have to leave the United States                  inflation) in any one year by State, local,
                                        ineligible for a provisional unlawful                   for their immigrant visa interviews and                and tribal governments, in the aggregate,
                                        presence waiver because of a previously                 file a Form I–601, Application for                     or by the private sector.
                                        scheduled immigrant visa interview.                     Waiver of Grounds of Inadmissibility,                     Although this rule does exceed the
                                           USCIS will first look at whether the                 after the Department of State                          $100 million expenditure threshold
                                        scheduled immigrant visa interview is                   determined they were inadmissible.                     (adjusted for inflation), this rulemaking
                                        based on the approved immediate                         Some commenters were concerned that                    does not contain such a mandate. The
                                        relative petition (I–130 or I–360) that                 limiting aliens to a single filing of an I–            provisional unlawful presence waiver
                                        accompanies the Form I–601A. If it is,                  601A would potentially bar aliens from                 process is a voluntary program for aliens
                                        USCIS will then look at the Department                  qualifying for a provisional unlawful                  that are immediate relatives of U.S.
                                        of State’s Consular Consolidated                        presence waiver, especially when they                  citizens intending to become legal
                                        Database (CCD to determine the date on                  may have experienced changed                           permanent residents. The requirements
                                        which the Department of State initially                 circumstances that would result in                     of Title II of the Act, therefore, do not
                                        acted to schedule the applicant for his                 extreme hardship to the U.S. citizen                   apply and DHS has not prepared a
                                        or her immigrant visa interview (i.e., the              spouse or parent. In light of these                    statement under the Act.
                                        date of scheduling itself and not the                   concerns, DHS has amended this final                   B. Small Business Regulatory
                                        date and time the applicant must appear                 rule to allow aliens who are denied a                  Enforcement Fairness Act of 1996
                                        for the interview).                                     provisional unlawful presence waiver to
                                           If the date that the Department of                   file another Form I–601A, based on the                    DHS considers this rule a major rule
                                        State initially acted to schedule the                                                                          as defined by section 804 of the Small
                                                                                                original approved immigrant visa
                                        immigrant visa interview is prior to the                                                                       Business Regulatory Enforcement
                                                                                                petition. Denial of an application for a
                                        date of publication of this final rule,                                                                        Fairness Act of 1996. DHS was not able
                                                                                                provisional unlawful presence waiver is
                                        January 3, 2013, then the alien is                                                                             to estimate with precision the increase
                                                                                                without prejudice to the alien filing
                                        ineligible to apply for a provisional                                                                          in demand due to this rule; therefore,
                                                                                                another provisional unlawful presence
                                        unlawful presence waiver. If the date                                                                          we estimated costs using range scenario
                                                                                                waiver application under paragraph (e)
                                        that Department of State initially acted                                                                       analysis. The final rule expanded
                                                                                                provided the alien meets all of the
                                        to schedule the immigrant visa                                                                                 eligibility for the provisional unlawful
                                                                                                requirements. The alien’s case must be
                                        interview is on or after the publication                                                                       presence waiver process to aliens in
                                                                                                pending with the Department of State
                                        date of this final rule, the alien is                                                                          removal proceedings whose cases have
                                                                                                and the alien must notify the                          been or will be administratively closed,
                                        eligible to apply for a provisional                     Department of State that he or she
                                        unlawful presence waiver. The actual                                                                           provided that the case has not been
                                                                                                intends to file a new Form I–601A.                     recalendared at the time of Form I–601A
                                        date and time that the alien is scheduled
                                        to appear for the interview is not                      14. Section 212.7(e)(10)                               filing and that the alien is otherwise
                                        relevant for the eligibility                                                                                   eligible. Due directly to this expansion,
                                                                                                   DHS has amended this provision to
                                        determination. This rule applies even if                                                                       there is a possibility that the rule will
                                                                                                allow an applicant to withdraw a
                                        the alien failed to appear for his or her                                                                      have an impact on the economy of $100
                                                                                                previously-filed provisional unlawful
                                        immigrant visa interview, cancelled the                                                                        million or more in the first year of
                                                                                                presence waiver application prior to
                                        interview, or requested that the                                                                               implementation. If demand for the
                                                                                                final adjudication and file another Form
                                        interview be rescheduled. Therefore,                                                                           provisional unlawful presence waiver
                                                                                                I–601A. See section 212.7(e)(10).                      increases by 50 percent, 75 percent, or
                                        USCIS may reject or deny any Form I–
                                        601A filed by an alien if USCIS                         15. Section 212.7(e)(14)(iv)                           90 percent, then the total impact on the
                                        determines that the Department of State,                                                                       economy would be approximately
                                                                                                   DHS clarified the language in section
                                        prior to the date of publication of this                                                                       $107.8 million (undiscounted), $157.8
                                                                                                212.7(e)(14)(v) to specify that a
                                        final rule, initially acted to schedule an                                                                     million (undiscounted), or $187.7
                                                                                                provisional unlawful presence waiver is
                                        initial immigrant visa interview for the                                                                       million (undiscounted), respectively, in
                                                                                                automatically revoked if the alien, at
                                        approved immediate relative petition                                                                           the first year. By year 2, the total impact
                                                                                                any time before or after the approval of
                                        upon which the Form I–601A is based.                                                                           to the economy if demand for the
                                                                                                the provisional unlawful presence
                                        See section 212.7(e)(4)(iv).                                                                                   provisional unlawful presence waiver
                                                                                                waiver, or before the immigrant visa is
                                           An alien who is ineligible to apply for                                                                     increases by 50 percent, 75 percent, or
                                                                                                issued, reenters or attempts to reenter                90 percent, is $33.2 million
                                        a provisional unlawful presence waiver                  the United States without being
                                        because of a previously scheduled                                                                              (undiscounted), $45.7 million
                                                                                                admitted or paroled. See section                       (undiscounted), or $53.1 million
                                        immigrant visa interview may still                      212.7(e)(14)(iv).
                                        qualify for a provisional unlawful                                                                             (undiscounted), respectively. The
                                        presence waiver if he or she has a new                  VI. Statutory and Regulatory                           impact of the rule is directly associated
                                        DOS immigrant visa case because (1)                     Requirements                                           with the increased demand in legalizing
                                        DOS terminated the immigrant visa                                                                              immigration status by applying for legal
                                                                                                A. Unfunded Mandates Reform Act of                     permanent resident status via consular
                                        registration associated with the                        1995
                                        previously scheduled interview, and                                                                            processing and participating in the
                                        they have a new immediate relative                        The Unfunded Mandates Reform Act                     provisional unlawful presence waiver
                                        petition; or (2) the alien has a new                    of 1995 (UMRA) is intended, among                      process. The impact includes filing fees,
                                        immediate relative petition filed on his                other things, to curb the practice of                  time, and travel costs of complying with
                                                                                                imposing unfunded Federal mandates                     this final rule. The costs of this final
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                                        or her behalf by a different petitioner.
                                        See section 212.7(e)(5)(ii)(G).                         on State, local, and tribal governments.               rule will fall exclusively on alien
                                                                                                Title II of the Act requires each Federal              immediate relatives of U.S. citizens that
                                        13. Section 212.7(e)(9)                                 agency to prepare a written statement                  reside in the United States and must
                                          DHS initially proposed that aliens                    assessing the effects of any Federal                   request a waiver for unlawful presence.
                                        who were denied a provisional unlawful                  mandate in a proposed or final agency                  This rule will not result in a major


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                                        increase in costs or prices; or significant             rule, DOS published an updated fee                        A key uncertainty that impacts any
                                        adverse effects on competition,                         schedule for consular services which                   cost estimate of this rule is the
                                        employment, investment, productivity,                   did the following with respect to this                 uncertainty involving the actual number
                                        innovation, or on the ability of United                 rule: (1) Reduced the immediate relative               of people that will avail themselves of
                                        States-based companies to compete with                  visa fee from $330 to $230; (2) increased              this streamlined provisional unlawful
                                        foreign-based companies in domestic                     the immigrant visa security surcharge                  presence waiver process. DHS is not
                                        and export markets.                                     fee from $74 to $75; and (3)                           aware of any data that will allow us to
                                                                                                discontinued charging a separate fee for               estimate with precision the increase in
                                        C. Executive Orders 12866 (Regulatory
                                                                                                the immigrant visa surcharge and                       demand due to this rule. In this final
                                        Planning and Review) and 13563
                                                                                                instead embedded the fee in the                        rule DHS has made the careful
                                        (Improving Regulation and Regulatory
                                                                                                immigrant visa application fees.18 DHS                 determination to expand eligible
                                        Review)
                                                                                                has incorporated these changes and                     participation to aliens in removal
                                           Executive Orders 12866 and 13563                     updated data into our final analysis.                  proceedings whose cases are
                                        direct agencies to assess the costs and                    DHS estimates the discounted total                  administratively closed and have not
                                        benefits of available regulatory                        ten-year cost of this rule will range from             been recalendared at the time of filing
                                        alternatives and, if regulation is                      approximately $196 million to                          the Form I–601A, and who are
                                        necessary, to select regulatory                         approximately $538.1 million at a seven                otherwise eligible for the provisional
                                        approaches that maximize net benefits                   percent discount rate. Compared with                   unlawful presence waiver. DHS has
                                        (including potential economic,                          the current waiver process, this rule                  accounted for any potential additions to
                                        environmental, public health and safety                 requires that provisional unlawful                     the volume estimate as a result of these
                                        effects, distributive impacts, and                      presence waiver applicants submit                      changes in the final analysis. Statistics
                                        equity). Executive Order 13563                          biometric information. Included in the                 compiled by the Department of Justice
                                        emphasizes the importance of                            total cost estimate is the cost of                     (DOJ) Executive Office of Immigration
                                        quantifying both costs and benefits, of                 collecting biometrics, which we                        Review (EOIR) indicate there have been
                                        reducing costs, of harmonizing rules,                   estimate will range from approximately                 a total of 70,276 cases that were
                                        and of promoting flexibility. This rule is              $32.9 million to approximately $56.6                   administratively closed at the
                                        a ‘‘significant regulatory action’’ that is             million discounted at seven percent                    immigration courts or the Board of
                                        economically significant under section                  over ten years. Also included in the                   Immigration Appeals (BIA) where the
                                        3(f)(1) of Executive Order 12866.                       total cost estimate are the costs faced by             sole charge is INA 212(a)(6)(A)(i).19 DHS
                                        Accordingly, the Office of Management                   those who choose to file a new                         has no way of knowing precisely how
                                        and Budget has reviewed this                            provisional unlawful presence waiver                   many of the 70,276 cases are immediate
                                        regulation. This effort is consistent with              application based on the same approved                 relatives of U.S. citizens and are
                                        Executive Order 13563’s call for                        immediate relative petition if their                   otherwise eligible for the provisional
                                        agencies to ‘‘consider how best to                      original Form I–601A is denied or                      unlawful presence waiver, so we have
                                        promote retrospective analysis of rules                 withdrawn, which DHS decided to                        applied similar range analysis to
                                        that may be outmoded, ineffective,                      allow in response to public comments to                estimate the additional population surge
                                        insufficient, or excessively burdensome,                the proposed rule. Aliens that file a new              resulting from the influx of cases
                                        and to modify, streamline, expand, or                   Form I–601A will still face the                        previously administratively closed. In
                                        repeal them in accordance with what                     biometric and Form I–601A filing fees                  addition to this static influx that could
                                        has been learned.’’                                     and opportunity costs, which we
                                                                                                                                                       occur with previously administratively
                                        1. Summary                                              estimate will range from approximately
                                                                                                                                                       closed cases, permitting aliens in
                                                                                                $56.2 million to approximately $96.7
                                           The final rule will allow certain                                                                           removal proceedings whose cases are
                                                                                                million discounted at seven percent
                                        immediate relatives of U.S. citizens who                                                                       administratively closed when this rule
                                                                                                over ten years. In addition, as this rule
                                        are physically present in the United                                                                           becomes effective or administratively
                                                                                                significantly streamlines the current
                                        States to apply for a provisional                                                                              closed but not recalendared at the time
                                                                                                process, DHS expects that additional
                                        unlawful presence waiver of the 3-year                                                                         of filing the Form I–601A could add
                                                                                                applicants will apply for the provisional
                                        or 10-year bar for accrual of unlawful                                                                         approximately 700 to 2,500, annually, to
                                                                                                unlawful presence waiver compared to
                                        presence prior to departing for consular                                                                       our volume estimate. Lastly, allowing
                                                                                                the current waiver process. To the
                                        processing of their immigrant visa. This                extent that this rule induces new                      applicants the ability to re-file a Form
                                        new provisional unlawful presence                       demand for immediate relative visas,                   I–601A if the initial application was
                                        waiver process will be available to an                  additional immigration benefit forms,                  denied or withdrawn will result in an
                                        alien whose only ground of                              such as the Petitions for Alien Relative,              increase to our volume estimates. A
                                        inadmissibility is, or would be, the 3-                 Form I–130, will be filed compared to                  review of USCIS Form I–601 processing
                                        year or 10-year unlawful presence bar.                  the pre-rule baseline. These additional                statistics indicated a denial rate of 34%.
                                        DHS anticipates that the changes made                   forms will involve fees being paid by                  A review of USCIS completion statistics
                                        in this final rule will result in a                     applicants to the Federal Government                   for the current I–601 waiver process did
                                        reduction in the time that U.S. citizens                for form processing and additional                     not indicate a statistical trend for
                                        are separated from their alien immediate                opportunity costs of time being incurred               withdrawals. DHS has assumed in this
                                        relatives, thus reducing the financial                  by applicants to provide the information               final analysis that the same denial rate
                                        and emotional hardship for these                        required by the forms. The cost estimate               of 34% will apply for the provisional
                                        families. In addition, the Federal                      for this rule also includes the impact of              waiver for unlawful presence
                                        Government will achieve increased                       this induced demand, which we                          application, and in an effort to present
                                        efficiencies in processing immediate                    estimate will range from approximately                 the maximum projected impact, has
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                                        relative visas for individuals subject to               $106.9 million to approximately $384.8
                                                                                                                                                         19 Source: Department of Justice, EOIR, Office of
                                        the unlawful presence inadmissibility                   million discounted at seven percent
                                                                                                                                                       Planning, Analysis, and Technology; statistics
                                        bar.                                                    over ten years.                                        include cases completed from January 1, 1992–
                                           Since publication of the proposed                                                                           December 5, 2012. Data compiled on December 5,
                                        provisional unlawful presence waiver                      18 See   77 FR 18907.                                2012.



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                                        calculated cost impacts based on the                      25%, 50%, 75% and 90% compared to                        waiver process and also qualitative
                                        assumption that every applicant with a                    the existing waiver process.                             benefits. The annualized cost of this
                                        denied or withdrawn Form I–601A will                        Table 1 provides an estimate of the                    rule will range from approximately
                                        file a new Form I–601A. For cost                          annualized cost of this rule, in 2012                    $27.9 million annualized to $76.6
                                        estimating purposes, DHS has analyzed                     dollars, at three percent and seven                      million (7 percent discount rate) and
                                        the cost of an increase in demand of                      percent discount rates, over the range of                approximately $27.4 million to $74.6
                                                                                                  demand increases of 25%, 50%, 75%,                       million (3 percent discount rate).
                                                                                                  and 90% compared to the existing
                                                                                              TABLE 1—ANNUALIZED COSTS AND BENEFITS
                                                                                                [2013–2022, dollar amounts expressed in millions]

                                                                                                        3% Discount rate                                                 7% Discount rate

                                                                                            Range analysis for demand increases by:                           Range analysis for demand increases by:

                                                                                    25%                50%            75%             90%             25%               50%             75%             90%

                                        COSTS:
                                           Annualized monetized costs ....          $27.4            $45.5           $63.7            $74.6           $27.9            $46.6           $65.4            $76.6

                                            Annualized   quantified,     but                                 None                                                              None
                                              unmonetized costs.

                                            Qualitative (unquantified) costs                                 None                                                              None

                                        BENEFITS:
                                           Annualized monetized benefits                                     None                                                              None

                                            Annualized   quantified,     but    This rule will reduce the amount of time that U.S. citizens are   This rule will reduce the amount of time that U.S. citizens are
                                              unmonetized benefits.             separated from their alien immediate relatives, thus reducing     separated from their alien immediate relatives, thus reducing
                                                                                the financial and emotional hardship for these families.          the financial and emotional hardship for these families.

                                            Qualitative (unquantified) bene-    Federal Government will achieve increased efficiencies by         Federal Government will achieve increased efficiencies by
                                             fits.                              streamlining the processing immediate relative visas for indi-    streamlining the processing immediate relative visas for indi-
                                                                                viduals subject to the unlawful presence inadmissibility bar.     viduals subject to the unlawful presence inadmissibility bar.



                                        2. Problems Addressed by the Rule                         determines there are no other                            immediate relatives that self-petition,
                                           Currently, aliens undergoing consular                  impediments to admissibility and that                    using USCIS Form I–360, as battered
                                        processing of their immediate relative                    the alien is otherwise eligible for                      spouses and/or children of U.S. citizens
                                        visas cannot apply for an unlawful                        issuance of the immigrant visa, the visa                 or LPRs are able to seek adjustment of
                                        presence waiver until the consular                        can be immediately issued. DHS                           status in the United States. While all
                                        officer determines that they are                          anticipates that this process change will                immediate relative aliens can choose to
                                        inadmissible during their immigrant                       significantly reduce the amount of time                  pursue consular processing if they wish,
                                        visa interviews. The current unlawful                     U.S. citizens are separated from their                   due to the financial strain and family
                                        presence waiver process requires these                    immediate alien relatives. In addition,                  separation inherently involved in
                                        immediate relatives to remain abroad                      the changes will streamline the                          consular processing, we have chosen to
                                        until USCIS adjudicates the waiver.                       immigrant visa waiver process, thereby                   exclude aliens that are eligible to adjust
                                        DOS can only issue the immigrant visa                     increasing efficiencies for both USCIS                   status in the United States from this
                                        upon notification from USCIS that the                     and DOS in the issuance of immediate                     economic analysis.
                                        waiver has been approved. As                              relative immigrant visas.                                   In most instances, aliens present in
                                        previously mentioned, the processing                                                                               the United States without having been
                                                                                                  3. The Population Affected by the Rule
                                        time under the current waiver process                                                                              admitted or paroled are not eligible to
                                        can take over one year. Because of these                    As explained above, only certain                       adjust their status and must leave the
                                        lengthy processing times, U.S. citizens                   immediate relatives undergoing                           United States for immigrant visa
                                        may be separated from their immediate                     consular processing for an immigrant                     processing at a U.S. Embassy or
                                        relative family members for prolonged                     visa who would be inadmissible based                     consulate abroad. Because these aliens
                                        periods resulting in financial,                           on accrual of unlawful presence at the                   are present in the United States without
                                        emotional, and humanitarian hardships.                    time of the immigrant visa interview                     having been admitted or paroled, many
                                        Promoting family unification is an                        will be eligible to apply under the                      already have accrued more than 180
                                        important objective of the immigration                    proposed waiver process. Immediate                       days of unlawful presence and, if so,
                                        laws. See Holder v. Martinez Gutierrez,                   relatives of U.S. citizens who are                       would become inadmissible under the
                                        132 S. Ct. 2011, 2019 (2012).                             seeking adjustment of status in the                      unlawful presence bars upon their
                                           The final rule will permit certain                     United States are not affected.                          departure from the United States to
                                        immediate relatives to apply for a                        Immediate relatives who are eligible for                 attend their immigrant visa interviews.
                                        provisional unlawful presence waiver                      adjustment of status in the United States                While there may be limited exceptions,
                                        prior to departing from the United                        generally include those who were                         the affected population would consist
                                        States. USCIS will adjudicate the                         admitted to the United States on                         almost exclusively of alien immediate
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                                        provisional unlawful presence waiver                      nonimmigrant visas (student, tourist,                    relatives present in the United States
                                        and, if approved, provide notification to                 etc.) or who were paroled, including                     without having been admitted or
                                        DOS so that it is available to the                        those who are present in the United                      paroled. In addition, the final rule
                                        consular officer at the immigrant visa                    States after the expiration of their                     expands eligibility to aliens in removal
                                        interview. If the consular officer                        authorized periods of stay. In addition,                 proceedings whose cases are


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                                        administratively closed and have not                    citizens rather than alien immediate                    imposed by the current process and
                                        been recalendared at the time of filing                 relatives, or the proportion of persons                 uncertainty related to the ultimate
                                        the Form I–601A and to aliens who are                   with unlawful presence who are the                      success of obtaining an approved
                                        in receipt of a charging document,                      relatives of LPRs rather than U.S.                      inadmissibility waiver.
                                        Notice to Appear, that has not yet been                 citizens.22 Nor do these data indicate                     The costs associated with normalizing
                                        filed with the immigration courts. In                   how many persons within these families                  a qualifying immediate relative’s status
                                        both of these instances the aliens must                 are under the age of 18 23 or have                      also may be a constraint to demand.
                                        still meet all other eligibility                        alternative methods of normalizing their                These current costs include: 24
                                        requirements in order to apply for the                  immigration status without having to                       1. Petition for Alien Relative, Form I–
                                        provisional unlawful presence waiver.                   leave the United States and,                            130, to establish a qualifying
                                        Finally, the final rule removes the one-                consequently, are unlikely to be affected               relationship to a U.S. citizen; cost to the
                                        time filing restriction and allows aliens               by the provisional unlawful presence                    petitioner of fee paid = $420.00.
                                        to file a new provisional unlawful                      waiver process.                                            2. Application for Waiver of Grounds
                                        presence waiver application on the                         Data from different sources cannot be                of Inadmissibility, Form I–601, to obtain
                                        same approved immediate relative                        reliably combined because of                            a waiver of inadmissibility for unlawful
                                        petition if the initial Form I–601A is                  differences in their total estimates for                presence; cost to applicant of fee paid =
                                        denied or withdrawn prior to final                      different categories, the estimation and                $585.00.
                                        adjudication.                                           collection methodologies used, or other                    3. Time and expense of preparing the
                                           DHS does not maintain data on the                    reasons of incompatibility. Absent                      evidence to support the ‘‘extreme
                                        number of immediate relatives present                   information on the number of aliens                     hardship’’ requirements for a waiver of
                                        in the United States who would qualify                  who are in the United States without                    inadmissibility. The evidentiary
                                        under the unlawful presence waiver                      having been inspected and admitted or                   requirements could include sworn
                                        process. The DHS Office of Immigration                  paroled and who are immediate                           statements from family members,
                                        Statistics (DHS OIS) estimates that the                 relatives of U.S. citizens, DHS cannot                  friends and acquaintances, medical
                                        population of unauthorized immigrants                   reliably estimate the affected population               records, psychiatric/psychological
                                        (those present without admission or                     of the rule.                                            records, school records, evidence of
                                        parole) residing in the United States is                                                                        illness of family members, financial
                                                                                                4. Demand
                                        approximately 11.6 million as of                                                                                information and tax returns, letters from
                                        January 2010.20 While all persons                          DHS expects that the final rule will                 teachers, support letters from churches
                                        affected by the rule are within the                     increase demand for both immigrant                      and community organizations, evidence
                                        estimated population of 11.6 million, it                visa petitions for alien relatives and                  of health and emotional problems that
                                        is estimated that only a portion are                    applications for waivers of                             may result from the separation, and
                                        immediate relatives of U.S. citizens who                inadmissibility. Existing demand is                     other such documentation; costs of
                                        meet the criteria required for the new                  constrained by the current process that                 evidentiary requirements are variable
                                        process.                                                requires individuals to leave the United                and based on the specific facts of
                                           Other estimates are equally                          States and be separated for                             individual cases.
                                        inconclusive on the number of                           unpredictable and sometimes lengthy                        4. Travel from the United States to the
                                        immediate relatives of U.S. citizens who                amounts of time from their immediate                    immediate relative’s home country or
                                        are subject to the unlawful presence                    relatives in the United States in order to              country where the visa is being
                                        bars. For example, the Pew Hispanic                     obtain an immigrant visa to become an                   processed, and any additional living
                                        Trust estimates that there are 9.0 million              LPR. Immediate relatives eligible for                   expenses required to support two
                                        persons 21 living in mixed status                       LPR status if issued a waiver of                        households while awaiting an
                                        families in the United States that                      inadmissibility may be reluctant to avail
                                                                                                                                                        immigrant visa; cost of travel to
                                        include at least one unauthorized adult                 themselves of the current process
                                                                                                                                                        consular interview are variable and
                                        alien and at least one U.S.-born child.                 because of the length of time that they
                                                                                                                                                        dependent upon the specific
                                        This, and associated information from                   may be required to wait outside the
                                                                                                                                                        circumstances of individual cases.
                                        the Pew Hispanic Trust, does not                        United States before they can be
                                                                                                                                                           5. Immigrant visa processing fees paid
                                        provide a reliable means for the                        admitted as LPRs.
                                                                                                                                                        to: (a) The Department of State ($230),
                                        calculation of how many of the                             The provisional unlawful presence
                                                                                                waiver process will allow an immediate                  processed on the basis of a USCIS-
                                        individuals in these families are U.S.                                                                          approved I–130 petition; and b) USCIS
                                                                                                relative who meets the eligibility criteria
                                           20 Department of Homeland Security, Office of        to apply for a provisional unlawful                     ($165). Total cost to the applicant of fees
                                        Immigration Statistics, Estimates of the                presence waiver and receive a decision                  paid = $395.00.
                                        Unauthorized Immigrant Population Residing in the       on that application before departing                       6. An Affidavit of Support Under
                                        United States: January 2011, available at http://
                                                                                                from the United States for a consular                   Section 213A of the Act, Form I–864;
                                        www.dhs.gov/xlibrary/assets/statistics/                                                                         cost to petitioner of fee paid = $88.00.
                                        publications/ois_ill_pe_2011.pdf. Note: The OIS         interview. This streamlined process may
                                                                                                                                                           7. Other forms, affidavits, etc. as
                                        estimate of the unauthorized population residing in     reduce the reluctance of aliens who may
                                        the United States in January 2010 was revised from      wish to obtain an immigrant visa to                     required for individual applications;
                                        a previous OIS estimate of 10.8 million. The revised
                                                                                                become an LPR but are deterred by the                   cost are variable.
                                        2010 estimate of 11.6 million is derived from the                                                                  The costs listed above are not new to
                                        2010 American Community Survey which uses               lengthy separation from family members
                                        population estimates based on the 2010 Census,
                                                                                                                                                        this rule; they are the current costs faced
                                        whereas the previously released 2010 estimate was         22 The provisional unlawful presence waiver           by aliens who are inadmissible for
                                        derived from the 2000 Census. The OIS estimate of       process will only be available to alien immediate
                                        the unauthorized population residing in the United      relatives of U.S. citizens, not to alien relatives of     24 Fees quoted are as of June 2012. Source for
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                                        States in January 2011 was 11.5 million, a decrease     lawful permanent residents.                             DOS fees: http://travel.state.gov/visa/temp/types/
                                        of 0.87% when compared to the 2010 estimate of            23 In the Pew Hispanic Trust report, Unauthorized     types_1263.html#perm. Source for USCIS fees:
                                        11.6 million.                                           Immigrants: Length of Residency, Patterns of            http://www.uscis.gov/portal/site/uscis/
                                           21 Pew Hispanic Trust, Unauthorized Immigrants:      Parenthood, ‘‘families’’ are defined as adults age 18   menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/
                                        Length of Residency, Patterns of Parenthood 6 (Dec.     and older who live with their minor children (i.e.,     ?vgnextoid=b1ae408b1c4b3210VgnVCM100000b9
                                        2011), available at http://www.pewhispanic.org/         younger than 18) and unmarried, dependent               2ca60aRCRD&vgnextchannel=b1ae408b
                                        files/2011/12/Unauthorized-Characteristics.pdf.         children younger than 25.                               1c4b3210VgnVCM100000b92ca60aRCRD.



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                                                                  Federal Register / Vol. 78, No. 2 / Thursday, January 3, 2013 / Rules and Regulations                                                                        567

                                        unlawful presence and must undergo                                         application fees.25 The requirement to                     those aliens who have taken the steps to
                                        consular processing for immediate                                          submit biometrics to DHS in order to                       obtain an immigrant visa to become
                                        relative immigrant visas.                                                  apply for a provisional unlawful                           LPRs. The data are silent, however, on
                                           Under the provisional unlawful                                          presence waiver, with the associated                       that population of aliens who have not
                                        presence waiver process, aliens must                                       fee, time, and travel costs, would be a                    initiated action to become LPRs due to
                                        submit biometrics after filing the                                         small portion of the total costs of the                    current uncertainties and risks.
                                                                                                                   immigrant visa application process.                        Therefore, we recognize that the
                                        provisional unlawful presence waiver                                          As there are no annual limitations on
                                        application, along with the                                                                                                           estimates provided may understate what
                                                                                                                   the number of immediate relative visas                     may actually occur when this rule
                                        corresponding fee (currently $85.00).                                      that can be issued, the increase in the
                                        Submission of biometrics to DHS is                                                                                                    becomes effective.
                                                                                                                   annual demand for waivers would be
                                        separate from the DOS immigrant visa                                       determined by the size of the affected                        The current level of demand, shown
                                        security surcharge that recovers costs to                                  population and the increased propensity                    in Table 2, is a result of the existing
                                        DOS associated with providing                                              to apply. As previously mentioned, a                       constraints described previously: the
                                        enhanced border security. Since                                            potential increase in demand might be                      possibility of lengthy separation of
                                        publication of the proposed provisional                                    limited, as is current demand, by the                      immediate relatives and their U.S.
                                        unlawful presence waiver rule, DOS                                         costs previously noted.                                    citizen relatives; uncertainty of the
                                        published an updated fee schedule for                                         With the absence of an estimate of the                  ultimate success of obtaining an
                                        consular services which did the                                            affected population, we have calculated                    approved inadmissibility waiver; and
                                        following as respects this rule: (1)                                       an estimate for the increase in demand                     the financial constraints (costs). Because
                                        Reduced the immediate relative visa fee                                    based on historical records and                            of the variability in timing between
                                        from $330 to $230; (2) increased the                                       assumptions on the range of demand.                        when immigrant visa petitions and
                                        immigrant visa security surcharge fee                                      Forecasts of demand based on historical                    waiver applications are submitted and
                                        from $74 to $75; and (3) discontinued                                      volumes of immediate relatives who are                     adjudicated and the time when an
                                        charging a separate fee for the                                            seeking waivers for unlawful presence                      immigrant visa is issued, comparisons
                                        immigrant visa surcharge and instead                                       are limited, at best, due to the lack of                   between the totals within a single year
                                        embedded the fee in the immigrant visa                                     data. Historical estimates show only                       are not meaningful.

                                                                             TABLE 2—HISTORICAL IMMIGRATION DATA—FISCAL YEARS 2001 THROUGH 2010
                                                                                                                                            Petitions for           Immediate
                                                                                                                                             immediate                                     Ineligibility           Ineligibility
                                                                              Fiscal year                                                                             relative
                                                                                                                                           alien relative,                                  finding 27            overcome 28
                                                                                                                                                                   visas issued
                                                                                                                                           form I–130 26

                                        2001 .........................................................................................           29 592,027               172,087                    5,384                    6,157
                                        2002 .........................................................................................              321,577               178,142                    2,555                    3,534
                                        2003 .........................................................................................              357,081               154,760                    3,301                    1,764
                                        2004 .........................................................................................              330,514               151,724                    4,836                    2,031
                                        2005 .........................................................................................              290,777               180,432                    7,140                    2,148
                                        2006 .........................................................................................              309,268               224,187                   13,710                    3,264
                                        2007 .........................................................................................              344,950               219,323                   15,312                    7,091
                                        2008 .........................................................................................              412,297               238,848                   31,069                   16,922
                                        2009 .........................................................................................              455,864               227,517                   24,886                   12,584
                                        2010 .........................................................................................              471,791               215,947                   22,093                   18,826
                                        10 year average .......................................................................                     388,615               196,297                   13,029                    7,432
                                        Ineligibility Findings overcome (10 year average) ...................                                            n/a                  n/a                       n/a                  57.0%
                                          Note: Sums may not total due to rounding.
                                          Sources: Petitions for Alien Relative, Form I–130, query of USCIS Performance Analysis System by USCIS’ Office of Performance and Quality,
                                        Data Analysis and Reporting Branch. Immediate relative visas issued are from individual annual Report(s) of the Visa Office, Department of State
                                        Visa Statistics, accessible at http://travel.state.gov/visa/statistics/statistics_1476.html. Ineligibility data are also from the individual annual report(s)
                                        of the Visa Office, Department of State Visa Statistics and appears in Table XX of each annual report.




                                           25 See 77 FR 18907. DHS has revised the cost                            battered spouses and children covered under the            filing volumes. Note: The current filing fee for Form
                                        estimates in this final rule to reflect the updated                        Violence Against Women Act (VAWA) are able to              I–360 is $405 for a widow(er) of a U.S. citizen.
                                        DOS fee schedule.                                                          seek adjustment of status in the United States                27 Both the Ineligibility Finding and Ineligibility
                                           26 Numbers in this column differ from the
                                                                                                                   regardless of whether they have been inspected and         Overcome columns refer only to ineligibility in
                                        proposed rule (77 FR 19915) as the proposed rule                           admitted or paroled into the United States, see INA        which the grounds of inadmissibility were the 3-
                                        inadvertently used data for preference aliens. We’ve                       section 245(a). Moreover, self-petitioning battered        year or the 10-year unlawful presence bar. This
                                        corrected the table to account for immediate relative                      spouses and children typically are exempt from             figure is not limited to immigrant petitioners who
                                        petitions filed using Form I–130. We note the ten                          accruing unlawful presence for purposes of INA             are immediate relatives of U.S. citizens; it also
                                        year average here of 388,615 differs by less than two                      section 212(a)(9)(B)(i). See INA section                   includes relatives of LPRs. Ineligibility findings
                                        percent from the ten year average of 395,919 used
                                                                                                                   212(a)(9)(B)(iii)(IV). While beneficiaries of              were low between 2001 and 2005/2006 because
                                        in the proposed rule. We recognize that immediate
                                                                                                                   immediate relative petitions for a widow(er) of a          many individuals were not seeking immigrant visas
                                        relative petitions also can be filed by certain aliens
                                                                                                                   U.S. citizen may avail themselves of the provisional       through the consular process overseas; instead, they
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                                        using the Petition for Amerasian, Widow(er), or
                                        Special Immigrant, Form I–360. Immediate relative                          unlawful presence waiver, in the period 2001–2010,         adjusted to lawful permanent resident status
                                        petitions filed for the Amerasian classification are                       the ten-year average for these petitions was 594. For      stateside under INA section 245(i).
                                        filed for aliens that are already outside the United                       purposes of clarity in the assumptions and the                28 Id. Ineligibility Findings/Ineligibility Overcome

                                        States so we do not believe these aliens would                             future calculations of impact, we have decided not         includes alien relatives who are not affected by the
                                        benefit from the provisional unlawful presence                             to include this population in the immediate relative       rule. Comparisons between the totals of Ineligibility
                                        waiver requirements. Additionally, self-petitioning                        petition volumes given the relatively negligible           Findings/Ineligibility Overcome within a single
                                                                                                                                                                                                                           Continued



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                                        568                       Federal Register / Vol. 78, No. 2 / Thursday, January 3, 2013 / Rules and Regulations

                                           As is evident, each of the data sets in                                  estimated future filings. The current                                          immediate relatives who are unlawfully
                                        Table 2 demonstrates a wide variability.                                    OPQ estimate for future waivers of                                             present to initiate actions to obtain an
                                        The estimate of future demand under                                         inadmissibility is approximately 24,000                                        immigrant visa to become LPRs when
                                        the new process would be determined                                         per year. Currently, 80 percent (or                                            they otherwise would be reluctant to
                                        by the number of ineligibility findings.                                    19,200) of all waivers of inadmissibility                                      under the current process. As
                                        The data for Ineligibility Findings and                                     are filed on the basis of inadmissibility                                      confidence in the new process
                                        Ineligibility Overcome in Table 2 refer                                     due to the unlawful presence bars.30                                           increases, we would expect demand to
                                        only to ineligibility where the grounds                                     This estimate is further confirmed when                                        trend upward. DHS estimates were
                                        of inadmissibility were the 3-year or the                                   examining the most recent 5-year period                                        formulated based on general
                                                                                                                    between FY 2006–FY 2010 where the                                              assumptions of the level of constraints
                                        10-year unlawful presence bar. This
                                                                                                                    average unlawful presence ineligibility                                        on demand removed by the rule. DHS
                                        data, however, also includes alien
                                                                                                                    finding is approximately 21,400. In light                                      does not know of any available data that
                                        relatives of LPRs (or preference aliens)                                    of the recent upward trend of immediate
                                        who are not affected by this rule. DHS                                                                                                                     would enable a more precise calculation
                                                                                                                    relative visas issued and ineligibility                                        of the increases in filing propensities or
                                        has provided the data in Table 2 to                                         findings presented in Table 2, OPQ’s
                                        provide historical context noting that                                                                                                                     an increase in the number of
                                                                                                                    estimate of 19,200 applications for
                                        the last three years of ineligibility                                                                                                                      inadmissibility findings or the
                                                                                                                    waivers of unlawful presence represents
                                        findings are well above the 10-year                                                                                                                        percentage of inadmissibility findings
                                                                                                                    as reasonable of an approximation as
                                        historical average. For this reason, DHS                                                                                                                   where the inadmissibility bar is
                                                                                                                    possible for future demand based on
                                        used the estimate for the future filings                                                                                                                   overcome.
                                                                                                                    available data of the current waiver
                                        for waivers of inadmissibility made by                                      process.                                                                          Table 3 indicates the estimate of
                                        the USCIS Office of Performance and                                            DHS anticipates that the changes to                                         demand under the current process. This
                                        Quality (OPQ), Data Analysis and                                            create a new provisional unlawful                                              is the baseline demand expected in the
                                        Reporting Branch, as the basis for the                                      presence waiver process will encourage                                         absence of the rule.

                                         TABLE 3—BASELINE ESTIMATES OF GROWTH IN PETITIONS FOR ALIEN RELATIVES AND INELIGIBILITY FINDINGS BASED ON
                                                                    UNLAWFUL PRESENCE UNDER THE CURRENT PROCESS
                                                                                                                                                                                                           Petitions for alien          Ineligibility
                                                                                                             Fiscal year                                                                                  immediate relative,            finding 32
                                                                                                                                                                                                            Form I–130 31

                                        Year   1 ......................................................................................................................................................         402,217                   19,709
                                        Year   2 ......................................................................................................................................................         416,294                   20,398
                                        Year   3 ......................................................................................................................................................         430,864                   21,112
                                        Year   4 ......................................................................................................................................................         445,945                   21,851
                                        Year   5 ......................................................................................................................................................         461,553                   22,616
                                        Year   6 ......................................................................................................................................................         477,707                   23,408
                                        Year   7 ......................................................................................................................................................         494,427                   24,227
                                        Year   8 ......................................................................................................................................................         511,732                   25,075
                                        Year   9 ......................................................................................................................................................         529,642                   25,952
                                        Year   10 ....................................................................................................................................................          548,180                   26,861

                                             10 Year Totals ..................................................................................................................................                 4,718,560                 231,209
                                           Note: Sums may not total due to rounding.


                                           Based on the data available on                                           on unlawful presence, the alien would                                          reports by the DHS OIS.33 This is an
                                        requests for waivers under the current                                      apply for a waiver. Thus, Table 3                                              imperfect calculation, as the
                                        process, Table 3 forecasts the number of                                    represents the baseline totals we expect                                       undocumented population has declined
                                        findings of inadmissibility due to                                          in the absence of the provisional                                              since its peak in 2007,34 but because of
                                        accrual of unlawful presence. The                                           unlawful presence waiver process.                                              the data association problems noted
                                        results presented in Table 3 are meant                                        In these calculations, the petitions for                                     previously, DHS used the 10-year (long
                                        to show forecasts for future demand for                                     an alien relative made by U.S. citizens                                        term) compound average growth rate.
                                        waivers due to unlawful presence bars                                       are expected to increase annually by the                                         The ineligibility findings in Table 3
                                        under the current process. DHS assumes                                      3.5 percent compound annual growth                                             are calculated using the estimate of
                                        that in every case where a consular                                         rate for the undocumented population                                           19,200 average annual waivers filed on
                                        officer determines inadmissibility based                                    for the previous 10 years based on                                             the basis of unlawful presence, which

                                        year are not meaningful because of the variability                             31 The first year estimate for the baseline demand                            32 Ineligibility Findings are calculated at the

                                        in timing between when an ineligibility finding is                          of I–130 petitions is the 10 year average of 388,615                           USCIS estimate of 0.049 per alien immediate
                                        made and when (and if) it is overcome.                                      multiplied by the 3.5 percent compound annual                                  relative petition.
                                           29 The number of Petitions for Alien Relative,
                                                                                                                    growth rate for the undocumented population for                                  33 DHS Office of Immigration Statistics, Estimates
                                        Form I–130, filed in 2001 is high because many                              the previous 10 years reported in the DHS Office                               of the Unauthorized Immigrant Population Residing
                                        filed petitions in anticipation of the INA section
                                                                                                                    of Immigration Statistics, Estimates of the                                    in the United States: January 2011. The 3.5 percent
                                        245(i) sunset date, which occurred on April 30,
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                                        2001.                                                                       Unauthorized Immigrant Population Residing in the                              (rounded) compound annual growth rate is
                                           30 The 80 percent estimate was calculated by                             United States: January 2011. Subsequent years are                              calculated from the estimated populations of
                                        USCIS based on data from all Forms I–601                                    increased at the same 3.5 percent growth rate. As                              unauthorized immigrants living in the United States
                                        completed by USCIS abroad from August 2010 to                               a comparison, the U.S. population as a whole rose                              in 2000 (8.5 million) and in 2010 (11.6 million).
                                        October 2011 and comparing those that listed only                           at a compound annual growth rate of 0.930 percent                                34 Id.
                                        unlawful presence as an inadmissibility ground.                             over the same period.



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                                                                  Federal Register / Vol. 78, No. 2 / Thursday, January 3, 2013 / Rules and Regulations                                                                                               569

                                        equates to 0.049 ineligibility findings for                                 escalation of change in this variable.                                assumption that demand is currently
                                        every alien relative petition based on                                      Thus, this estimate of future petitions                               constrained by 25 percent would mean
                                        the 10-year average. Again, these                                           for alien relatives and ineligibility                                 that there would be a 25 percent
                                        calculations are imperfect since                                            findings is based on a range of                                       increase from the baseline in the
                                        ineligibility findings are based on                                         assumptions concerning the current                                    number of Form I–601A applications for
                                        immigrant visas granted for the alien                                       constraint on demand. As a result, Table                              each year under the new provisional
                                        relative population (both immediate                                         4 provides a scenario analysis utilizing                              unlawful presence waiver process. The
                                        relative and family preference).                                            estimates of various amounts of                                       findings of this range analysis are
                                          DHS does not have data available that                                     constraint on demand. For example, an                                 presented in Table 4.
                                        would permit an estimation of the

                                               TABLE 4—ESTIMATES OF INADMISSIBILITY FINDINGS REQUIRING AN UNLAWFUL PRESENCE WAIVER, FORM I–601A
                                                                      ASSOCIATED WITH THE INCREASED DEMAND OF THE RULE
                                                                                                                                                                                     Expected demand for Form I–601A with current
                                                                                                                                                                                                constrained demand of
                                                                                                      Year
                                                                                                                                                                                  25 percent      50 percent            75 percent              90 percent

                                        Year   1 ..............................................................................................................................       24,636             29,563                34,490               37,446
                                        Year   2 ..............................................................................................................................       25,498             30,598                35,697               38,757
                                        Year   3 ..............................................................................................................................       26,390             31,669                36,947               40,113
                                        Year   4 ..............................................................................................................................       27,314             32,777                38,240               41,517
                                        Year   5 ..............................................................................................................................       28,270             33,924                39,578               42,971
                                        Year   6 ..............................................................................................................................       29,260             35,111                40,963               44,475
                                        Year   7 ..............................................................................................................................       30,284             36,340                42,397               46,031
                                        Year   8 ..............................................................................................................................       31,344             37,612                43,881               47,642
                                        Year   9 ..............................................................................................................................       32,441             38,929                45,417               49,310
                                        Year   10 ............................................................................................................................        33,576             40,291                47,006               51,036

                                             10-Year Totals ..........................................................................................................               289,012           346,814               404,617               439,298
                                           Note: Numbers may not total due to rounding.


                                           In response to comments on the                                           212(a)(6)(A)(i).35 DHS has no way of                                  Year 1 to account for estimates of
                                        proposed rule, DHS has made the                                             knowing precisely how many of the                                     additional Form I–601A filings from
                                        careful determination to expand                                             70,276 previously administratively                                    aliens whose removal proceedings have
                                        participation in the provisional                                            closed cases would be immediate                                       been be administratively closed are:
                                        unlawful presence waiver process to                                         relatives of U.S. citizens and otherwise                              17,569 (25 percent of 70,276 cases);
                                        immediate relative aliens in removal                                        eligible for the provisional unlawful                                 35,138 (50 percent); 52,707 (75 percent);
                                        proceedings whose cases have been or                                        presence waiver. In an effort to be                                   and 63,249 (90 percent).
                                        will be administratively closed and have                                    balanced in our estimate, it would be                                    Similarly, DHS estimated increases to
                                                                                                                    incorrect to assume that every removal                                the yearly volume projection in order to
                                        not been recalendared at the time of
                                                                                                                    proceeding case that was                                              account for those aliens with cases that
                                        filing the Form I–601A. Aliens who are
                                                                                                                    administratively closed in the past will                              will be administratively closed and
                                        in removal proceedings whose cases                                                                                                                therefore eligible to apply for the
                                        have been or will be administratively                                       also meet the requirements under the
                                                                                                                    provisional unlawful presence waiver                                  provisional unlawful presence waiver,
                                        closed are likely comprised primarily of                                                                                                          provided they meet the additional
                                                                                                                    process. Therefore, we will provide a
                                        aliens who would need to seek                                                                                                                     requirements. DHS examined EOIR
                                                                                                                    range analysis to estimate the
                                        immigration relief via DOS consular                                         proportion that would be eligible to                                  historical case resolution statistics over
                                        processing. Thus, we believe that such                                      participate over a similar range of                                   the five-year period FY 2007–FY 2011 to
                                        individuals are also already accounted                                      assumptions as used in calculating                                    determine an appropriate average
                                        for in the volume estimates provided                                        induced demand. In this instance,                                     number of cases that are
                                        above which were based on historical                                        however, we will assume that removal                                  administratively closed from which to
                                        filings of Form I–601 to waive the                                          proceeding cases that are eligible to                                 base this yearly estimate on. Those
                                        unlawful presence ground. However, to                                       participate would range from 25–90                                    findings are presented in Table 5.
                                        not understate the volume, we                                               percent, where 25 percent means that 25
                                        examined historical case resolution                                         percent of the administratively closed                                     TABLE 5—NUMBER OF ADMINISTRA-
                                        statistics of immigration proceedings                                       cases also meet the remaining                                              TIVELY  CLOSED CASES—FISCAL
                                        provided by EOIR. Historical statistics                                     provisional unlawful presence waiver                                       YEARS 2007 THROUGH 2011 36
                                        are silent on the volume of cases that                                      requirements. Since cases that were
                                        have been administratively closed and                                       administratively closed in the past                                                    Fiscal year                            Number
                                        later recalendared.                                                         represent a static statistic, we only
                                                                                                                                                                                          2007 ..............................................        7,966
                                           Based on statistics compiled by EOIR,                                    reflect this potential influx in one year                             2008 ..............................................        8,409
                                        66,365 cases at the immigration court                                       of our volume projections. Thus, the                                  2009 ..............................................        7,885
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                                                                                                                    addition made to the volume estimate in
                                        level and 3,911 cases at the BIA (for a
                                                                                                                                                                                            36 Source: Executive Office for Immigration
                                        total of 70,276 cases) were                                                    35 Source:EOIR, Office of Planning, Analysis, and                  Review Office of Planning, Analysis, and
                                        administratively closed since 1992                                          Technology; statistics include cases completed from                   Technology FY 2011 Statistical Year Book February
                                        where the sole charge is INA                                                January 1, 1992–December 5, 2012. Data compiled                       2012, available at: http://www.justice.gov/eoir/
                                                                                                                    on December 5, 2012.                                                  statspub/fy11syb.pdf.



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                                        570                        Federal Register / Vol. 78, No. 2 / Thursday, January 3, 2013 / Rules and Regulations

                                           TABLE 5—NUMBER OF ADMINISTRA-                                              EOIR’s statistics of administratively                                   on participation rates, DHS has made
                                           TIVELY  CLOSED CASES—FISCAL                                                closed cases, DHS determined that 35%                                   the following yearly additions to the
                                           YEARS 2007 THROUGH 2011 36—                                                of all administratively closed cases were                               volume estimate of additional Form I–
                                           Continued                                                                  those where the sole charge is unlawful                                 601A filings to account for those aliens
                                                                                                                      presence.37 Assuming this proportion                                    whose removal proceedings have been
                                                          Fiscal year                               Number            will continue to hold, we estimate that                                 or will be administratively closed: 692
                                                                                                                      EOIR would administratively close                                       (25 percent of 5-year average 2,768);
                                        2010 ..............................................              8,939        2,768 cases per year where the sole                                     1,384 (50 percent); 2,076 (75 percent);
                                        2011 ..............................................              6,337        charge is unlawful presence.38 Again,                                   and 2,492 (90 percent). The final
                                        5-yr Average .................................                   7,907        DHS has no way of knowing precisely                                     estimate for future filings of the
                                                                                                                      how many of the 2,768 estimated                                         provisional unlawful presence waiver
                                           In examining the data over the five-                                       unlawful presence administratively                                      considers both induced demand relative
                                        year span (presented in Table 5), there                                       closed cases will be aliens who are                                     to the current process and the
                                        is no obvious upward or downward                                              immediate relatives of U.S. citizens and                                participation rate of aliens in removal
                                        trend, so for the purpose of simplifying,                                     otherwise eligible for the provisional                                  proceedings whose cases have been or
                                        DHS assumes no growth in this statistic.                                      unlawful presence waiver process.                                       will be administratively closed. This
                                        Over the 20-year period of analysis of                                        Applying the same range analysis based                                  final estimate is presented in Table 6.

                                          TABLE 6—FINAL ESTIMATES OF INADMISSIBILITY FINDINGS REQUIRING AN UNLAWFUL PRESENCE WAIVER, FORM I–601A
                                            [Table 4 plus an adjustment for aliens in removal proceedings whose cases have been or will be administratively closed and have not been
                                                                                                          recalendared]

                                                                                                                                                                                        Expected demand for Form I–601A with current
                                                                                                                                                                                          constrained demand or participation rate of
                                                                                                        Year
                                                                                                                                                                                     25 percent     50 percent       75 percent       90 percent

                                        Year    1 ..............................................................................................................................         42,897          66,085           89,274          103,188
                                        Year    2 ..............................................................................................................................         26,191          31,982           37,774           41,249
                                        Year    3 ..............................................................................................................................         27,083          33,053           39,023           42,606
                                        Year    4 ..............................................................................................................................         28,007          34,161           40,316           44,010
                                        Year    5 ..............................................................................................................................         28,963          35,309           41,655           45,463
                                        Year    6 ..............................................................................................................................         29,952          36,496           43,040           46,967
                                        Year    7 ..............................................................................................................................         30,976          37,725           44,474           48,524
                                        Year    8 ..............................................................................................................................         32,036          38,997           45,957           50,135
                                        Year    9 ..............................................................................................................................         33,133          40,313           47,493           51,802
                                        Year    10 ............................................................................................................................          34,269          41,676           49,083           53,528

                                              10-Year Totals ..........................................................................................................                 313,501         395,793          478,084          527,467
                                           Note: Numbers may not total due to rounding.


                                          Table 7 is the expected marginal                                            presence waiver process. These                                          when the rule becomes effective in
                                        increase in inadmissibility waiver initial                                    estimates are obtained by subtracting                                   Table 6.
                                        applications due to the final rule                                            the baseline estimates in Table 3
                                        implementing the provisional unlawful                                         (without the rule) from the estimates

                                          TABLE 7—FINAL ESTIMATES OF THE ADDITIONAL INELIGIBILITY FINDINGS REQUIRING AN INADMISSIBILITY WAIVER UNDER
                                                                               THE RULE (INDUCED DEMAND) 39
                                                                                                                                         [Table 6 minus Table 3]

                                                                                                                                                                                          Additional ineligibility findings requiring an
                                                                                                                                                                                     inadmissibility waiver with current constrained demand
                                                                                                        Year                                                                                          or participation rate of

                                                                                                                                                                                     25 percent     50 percent       75 percent       90 percent

                                        Year    1   ..............................................................................................................................       23,189          46,377           69,565           83,479
                                        Year    2   ..............................................................................................................................        5,792          11,584           17,375           20,851
                                        Year    3   ..............................................................................................................................        5,971          11,941           17,911           21,494
                                        Year    4   ..............................................................................................................................        6,155          12,310           18,465           22,159
                                        Year    5   ..............................................................................................................................        6,347          12,693           19,039           22,847
                                        Year    6   ..............................................................................................................................        6,544          13,088           19,632           23,559

                                          37 Statistic calculated by DHS based on EOIR                                (rounded)] Similarly, there were a total of 11,279                        39 The increased ineligibility findings in Table 6

                                        statistics on administratively closed cases from                              aliens whose cases have been administratively                           are the difference in ineligibility findings from the
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                                        January 1, 1992–December 5, 2012. According to                                closed at the BIA. Of those, a total of 3,911 cases                     different assumptions of the level of constrained
                                        the EOIR report, there were a total of 189,566 aliens                         were administratively closed at the BIA where the                       demand or participation rate (as respects those in
                                        whose cases have been administratively closed at                              sole charge is INA 212(a)(06)(A)(i). [Calculation:
                                                                                                                                                                                              removal proceedings whose cases have been
                                        immigration court. Of those, a total of 66,365 cases                          3,911/11,279 = 0.3468 or 35% (rounded)].
                                        were administratively closed at the immigration                                  38 Calculation: 35% of the 5-year average of                         administratively closed) in Table 5 and the baseline
                                        court where the sole charge is INA 212(a)(06)(A)(i).                          administratively closed cases (7,907) = 2,768                           ineligibility findings shown in Table 2.
                                        [Calculation: 66,365/189,566 = 0.3501 or 35%                                  (rounded).



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                                                                  Federal Register / Vol. 78, No. 2 / Thursday, January 3, 2013 / Rules and Regulations                                                                                      571

                                          TABLE 7—FINAL ESTIMATES OF THE ADDITIONAL INELIGIBILITY FINDINGS REQUIRING AN INADMISSIBILITY WAIVER UNDER
                                                                         THE RULE (INDUCED DEMAND) 39—Continued
                                                                                                                                      [Table 6 minus Table 3]

                                                                                                                                                                                       Additional ineligibility findings requiring an
                                                                                                                                                                                  inadmissibility waiver with current constrained demand
                                                                                                      Year                                                                                         or participation rate of

                                                                                                                                                                                  25 percent      50 percent     75 percent       90 percent

                                        Year   7 ..............................................................................................................................         6,749         13,498           20,247           24,297
                                        Year   8 ..............................................................................................................................         6,961         13,922           20,883           25,060
                                        Year   9 ..............................................................................................................................         7,181         14,361           21,541           25,850
                                        Year   10 ............................................................................................................................          7,408         14,815           22,222           26,667

                                             10 Year Totals ..........................................................................................................                82,292         164,583         246,875          296,258
                                           Note: Numbers may not total due to rounding.


                                          Lastly, in response to public                                             Internal USCIS review of I–601                                         that the alien will file an additional I–
                                        comments on the proposed rule, DHS                                          historical application data indicated                                  601A. We believe that showing the
                                        has made the decision to not reject                                         that withdrawals of Form I–601s were                                   maximum volume projections under
                                        provisional unlawful presence waiver                                        not a significant occurrence. At this                                  those assumptions will sufficiently
                                        applications from aliens who previously                                     time, DHS is unable to project a trend                                 account for those cases that are
                                        submitted a Form I–601A application                                         associated with the frequency of cases                                 withdrawn. The volume projection of I–
                                        that either was denied or withdrawn.                                        that are denied or withdrawn and later                                 601A re-filers is shown in Table 8, and
                                        This means that an alien can file a new                                     the alien chooses to re-file a waiver                                  is based on a 34% denial rate for all
                                        provisional unlawful presence waiver                                        application. In an effort to present the                               initial filings presented in Table 6. We
                                        application on the basis of the original                                    maximum volume projection of I–601A                                    have chosen to present the re-filing
                                        approved immediate relative petition.                                       re-filers, we have made the following
                                                                                                                                                                                           volume projections separately because
                                        DHS has examined USCIS I–601                                                assumptions: (1) The five-year denial
                                                                                                                                                                                           re-filers would be able to base the re-
                                        processing data over the 5-year period,                                     rate of 34% calculated for Form I–601s
                                        FY 2007–2011. The average denial rate                                       will hold for Form I–601As; and (2) for                                filed application on the initial
                                        over that 5-year period is 34%.40                                           every I–601A that is denied, we assume                                 immediate relative petition.

                                            TABLE 8—FINAL ESTIMATES OF DENIED OR WITHDRAWN PROVISIONAL UNLAWFUL PRESENCE WAIVER APPLICATIONS
                                                                     WHERE AN ALIEN WOULD RE-FILE A NEW FORM I–601A
                                                                                        [Assumes that 34% of all initial applications in Table 6 will be denied or withdrawn]

                                                                                                                                                                                  Estimate of denied or withdrawn applications requiring
                                                                                                                                                                                   a re-filed Form I–601A assuming the same demand
                                                                                                      Year                                                                                       and participation rates of

                                                                                                                                                                                  25 percent      50 percent     75 percent       90 percent

                                        Year   1 ..............................................................................................................................       14,585          22,469           30,354           35,084
                                        Year   2 ..............................................................................................................................        8,905          10,874           12,844           14,025
                                        Year   3 ..............................................................................................................................        9,209          11,239           13,268           14,487
                                        Year   4 ..............................................................................................................................        9,523          11,615           13,708           14,964
                                        Year   5 ..............................................................................................................................        9,848          12,006           14,163           15,458
                                        Year   6 ..............................................................................................................................       10,184          12,409           14,634           15,969
                                        Year   7 ..............................................................................................................................       10,532          12,827           15,122           16,499
                                        Year   8 ..............................................................................................................................       10,893          13,259           15,626           17,046
                                        Year   9 ..............................................................................................................................       11,266          13,707           16,148           17,613
                                        Year   10 ............................................................................................................................        11,652          14,170           16,689           18,200

                                             10-Year Totals ..........................................................................................................               106,593         134,571         162,551          179,341
                                           Note: Numbers may not total due to rounding.


                                        5. Costs                                                                    costs of the rule emanate from the                                     otherwise would not due to existing
                                                                                                                    increase in the demand created by the                                  constraints previously described under
                                          The final rule will require provisional                                   provisional unlawful presence waiver                                   the current I–601 waiver process.
                                        unlawful presence waiver applicants to                                      process. These other costs include the
                                        submit biometrics to USCIS. This is the                                                                                                              For the biometric collection, the
                                                                                                                    fees and preparation costs for forms                                   immediate relative alien will incur the
                                        only new cost applicants will incur
                                                                                                                    prepared by individuals who we believe                                 following costs associated with
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                                        under the provisional unlawful
                                                                                                                    take the initiative to normalize their                                 submitting biometrics with an
                                        presence waiver process in comparison
                                        to the current waiver process. The other                                    immigration status where they                                          application for the provisional unlawful

                                         40 Source: USCIS Office of Performance and                                 Query of CIS Consolidated Operational Repository                       for I–601 receipts, approval and denials for FY
                                        Quality, Data Analysis and Reporting Branch.                                                                                                       2007—2011; report created December 8, 2011.



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                                        572                       Federal Register / Vol. 78, No. 2 / Thursday, January 3, 2013 / Rules and Regulations

                                        presence waiver: the required USCIS fee                                     DHS rulemakings, we use wage rates as                        unlawful presence waiver applicant to
                                        and the opportunity and mileage costs                                       a mechanism to estimate the                                  be $64.29 for travel to and service at the
                                        of traveling to a USCIS ASC to have the                                     opportunity or time valuation costs                          ASC.44 When the $85.00 biometric fee is
                                        biometric recorded.                                                         associated with the required biometric                       added, the total estimated additional
                                          The current USCIS fee for collecting                                      collection. The Federal minimum wage                         cost per provisional unlawful presence
                                        and processing biometrics is $85.00. In                                     is currently $7.25 per hour.41 In order to                   waiver over the current waiver process
                                        addition, DHS estimates the opportunity                                     anticipate the full opportunity cost of                      is $149.29. All other fees charged by
                                        costs for travel to an ASC in order to                                      providing biometrics, DHS multiplied                         USCIS and DOS to apply for immediate
                                        have the biometric recorded based on                                        the minimum hourly wage rate by 1.44                         relative visas remain the same under the
                                        the cost of travel (time and mileage)                                       to account for the full cost of employee                     current and provisional unlawful
                                        plus the average wait time to have the                                      benefits such as paid leave, insurance,                      presence waiver processes.45
                                        biometric collected. While travel times                                     and retirement, which equals $10.44 per
                                        and distances will vary, DHS estimates                                      hour.42 In addition, the cost of travel                         The incremental costs of the biometric
                                        that the average round-trip distance to                                     includes a mileage charge based on the                       requirement of the rule are computed as
                                        an ASC will be 50 miles, and that the                                       estimated 50 mile round trip at the                          the $149.29 cost per provisional
                                        average time for that trip will be 2.5                                      General Services Administration rate of                      unlawful presence waiver multiplied by
                                        hours. DHS estimates that an alien will                                     $0.555 per mile, which equals $27.75                         the total number of applicants for
                                        wait an average of one hour for service                                     for each applicant.43                                        provisional unlawful presence waivers
                                        and to have biometrics collected.                                              Using an opportunity cost of time of                      applying after the final rule is effective.
                                          DHS recognizes that the individuals                                       $10.44 per hour and the 3.5 hour                             This population is represented in Table
                                        impacted by the rule are unlawfully                                         estimated time for travel and service                        6. The incremental costs of the
                                        present and are generally not eligible to                                   and the mileage charge of $27.75, DHS                        additional biometric requirement are
                                        work; however, consistent with other                                        estimates the cost per provisional                           shown in Table 9.

                                          TABLE 9—COSTS OF BIOMETRIC REQUIREMENT TO IMMEDIATE RELATIVES FILING A PROVISIONAL UNLAWFUL PRESENCE
                                                                                  WAIVER APPLICATION
                                                                                                                                [Table 6 multiplied by $149.29]

                                                                                                                                                         Additional inadmissibility waiver application fees with current
                                                                                                                                                                 constrained demand or participation rate of
                                                                                      Year
                                                                                                                                                   25 percent             50 percent           75 percent             90 percent

                                        Year   1 ..............................................................................................        $6,404,093            $9,865,830           $13,327,715           $15,404,937
                                        Year   2 ..............................................................................................         3,910,054             4,774,593             5,639,280             6,158,063
                                        Year   3 ..............................................................................................         4,043,221             4,934,482             5,825,744             6,360,650
                                        Year   4 ..............................................................................................         4,181,165             5,099,896             6,018,776             6,570,253
                                        Year   5 ..............................................................................................         4,323,886             5,271,281             6,218,675             6,787,171
                                        Year   6 ..............................................................................................         4,471,534             5,448,488             6,425,442             7,011,703
                                        Year   7 ..............................................................................................         4,624,407             5,631,965             6,639,523             7,244,148
                                        Year   8 ..............................................................................................         4,782,654             5,821,862             6,860,921             7,484,654
                                        Year   9 ..............................................................................................         4,946,426             6,018,328             7,090,230             7,733,521
                                        Year   10 ............................................................................................          5,116,019             6,221,810             7,327,601             7,991,195

                                             10-Year Totals Undiscounted ...................................................                           46,803,460            59,088,534            71,373,907            78,746,295

                                             10-Year Totals Discounted at 7.0 percent ...............................                                  32,907,683            42,030,423            51,153,460            56,628,050

                                             10-Year Totals Discounted at 3.0 percent ...............................                                  39,926,220            50,653,297            61,380,675            67,818,069
                                           Note: Numbers may not total due to rounding.


                                          In addition to the costs of the                                           130) are not costs of this rule. The new                     this rule. We consider the fee values to
                                        biometric requirement, DHS expects                                          fee revenue, however, is that generated                      be a reasonable proxy for the underlying
                                        that the rule will induce an increase in                                    by the additional demand shown in                            costs of this rule. The additional fees
                                        demand for immediate relative visas,                                        Table 7, and from transfers made by                          and preparation costs are shown in
                                        which will generate new fees paid to the                                    applicants to USCIS and DOS to cover                         Table 10.
                                        USCIS and DOS. As the only new                                              the cost of processing the forms. In                           In determining the preparation cost
                                        requirement imposed by this rule on                                         addition to the fees, there are nominal                      for the forms, different labor rates were
                                        provisional unlawful presence waiver                                        preparation costs associated with                            used depending on the citizenship
                                                                                                                                                                                 status of the petitioner. If the form is
                                        applicants compared with the current                                        completing the forms. We estimate the
                                                                                                                                                                                 completed by the alien immediate
                                        waiver process is biometrics, fees                                          amount of these fees and their
                                                                                                                                                                                 relative (Form I–601A), the loaded
                                        collected for filing forms that are                                         associated preparation costs to give a                       minimum wage of $10.44 per hour was
                                        already required (such as the Form I–                                       more complete estimate of the impact of                      used. If the form is completed by a U.S.
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                                          41 U.S. Dep’t of Labor, Wage and Hour Division.                           per hour worked for employee compensation and                  44 ($10.44 per hour × 3.5 hours) + ($0.555 per mile

                                        The minimum wage in effect as of July 24, 2009,                             costs as a percent of total compensation: Civilian           × 50 miles) = $64.29.
                                        available at: http://www.dol.gov/dol/topic/wages/                           workers, by major occupational and industry group,             45 The Application for a Provisional Waiver of
                                        minimumwage.htm.                                                            Dec. 2011, available at http://www.bls.gov/
                                                                                                                                                                                 Inadmissibility, Form I–601A, will carry the same
                                          42 U.S. Dep’t of Labor, Bureau of Labor Statistics,                       news.release/archives/ecec_03142012.htm.
                                                                                                                                                                                 USCIS fee as Form I–601.
                                        Economic News Release, Table 1. Employer costs                                43 See 77 FR 22786.




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                                                                   Federal Register / Vol. 78, No. 2 / Thursday, January 3, 2013 / Rules and Regulations                                                                        573

                                        citizen, we used the mean hourly wage                                        1. Cost of Form I–130: Preparation cost                       4. Cost of Immigrant Visa: Preparation
                                        for ‘‘all occupations’’ as reported by the                                       = ($31.31 × 1.5 hours) = $46.97;                              cost of Form DS–230 = ($10.44 × 1.0
                                        Bureau of Labor Statistics and then                                              USCIS fee to cover processing costs                           hour) = $10.44; Processing Fees:
                                        adjusted that wage upward to account                                             = $420.00. Total cost = $466.97                               DOS fee to cover processing costs =
                                        for the costs of employee benefits, such                                                                                                       $230; USCIS fee to cover processing
                                                                                                                     2. Cost of Form I–601A: Preparation cost
                                        as annual leave, for a fully loaded                                                                                                            costs = $165. Total cost = $405.44.
                                                                                                                         = ($10.44 × 1.5 hours) = $15.66;
                                        hourly wage rate of $31.31.46 The times
                                                                                                                         USCIS fee to cover processing costs                       Based on the above, the total costs per
                                        to complete the forms are based on the
                                                                                                                         = $585.00. Total cost = $600.66                           application: ($466.97 + 600.66 + 275.86
                                        estimated burden time reported for the
                                        individual forms.                                                            3. Cost of Form I–864: Preparation cost                       + 405.44) = $1,748.93.
                                           These costs and appropriate fees paid                                         = ($31.31 × 6.0 hours) = $187.86;
                                        to USCIS and DOS are calculated by the                                           DOS fee to cover processing costs =
                                        formula:                                                                         $88.00. Total cost = $275.86

                                                                                    TABLE 10—COSTS FOR PREPARING AND FILING USCIS AND DOS FORMS
                                                                                                                                [Table 7 multiplied by $1,748.93]

                                                                                                                                                        Additional preparation costs and filing fees with current constrained
                                                                                                                                                                          demand or participation rate of
                                                                                       Year
                                                                                                                                                      25 percent            50 percent          75 percent            90 percent

                                        Year    1 ..............................................................................................        $40,555,938           $81,110,127           $121,664,315      $145,998,927
                                        Year    2 ..............................................................................................         10,129,803            20,259,605             30,387,659        36,466,939
                                        Year    3 ..............................................................................................         10,442,861            20,883,973             31,325,085        37,591,501
                                        Year    4 ..............................................................................................         10,764,664            21,529,328             32,293,992        38,754,540
                                        Year    5 ..............................................................................................         11,100,459            22,199,168             33,297,878        39,957,804
                                        Year    6 ..............................................................................................         11,444,998            22,889,996             34,334,994        41,203,042
                                        Year    7 ..............................................................................................         11,803,529            23,607,057             35,410,586        42,493,752
                                        Year    8 ..............................................................................................         12,174,302            24,348,603             36,522,905        43,828,186
                                        Year    9 ..............................................................................................         12,559,066            25,116,384             37,673,701        45,209,841
                                        Year    10 ............................................................................................          12,956,073            25,910,398             38,864,722        46,638,716

                                              10 Year Totals Undiscounted ...................................................                           143,931,692           287,854,640            431,775,838        518,143,249

                                              10 Year Totals Discounted at 7.0 percent ...............................                                  106,881,772           213,757,395            320,631,489        384,766,730

                                              10 Year Totals Discounted at 3.0 percent ...............................                                  125,678,197           251,348,945            377,018,045        452,432,274
                                           Note: Sums may not total due to rounding.


                                          The totals in Table 10 are calculated                                      extent that this rule allows immediate                        denied or withdrawn. If an alien
                                        by multiplying the induced demand                                            relatives to reduce the time spent in                         chooses to file a new provisional
                                        shown in Table 7 by the $1,748.93                                            their home country, we expect a                               unlawful presence waiver application,
                                        shown above. DHS acknowledges there                                          proportionate reduction in these costs.                       the alien would face the biometric costs
                                        are additional costs to the existing                                         These cost savings represent a benefit of                     (including biometric fees and travel to
                                        process, such as travel from the United                                      this rule.                                                    the ASC to submit biometrics) and the
                                        States to the immediate relative’s home                                         In addition, the final rule has                            fee and preparation costs associated
                                        country where the immigrant visa is                                          removed the limitation that allowed                           with Form I–601A. As previously
                                        being processed and the additional                                           aliens to file only one Form I–601A on                        established, the biometric costs are
                                        expense of supporting two households                                         the basis of an approved immediate
                                                                                                                                                                                   $149.29 and the Form I–601A costs are
                                        while awaiting an immigrant visa. Such                                       relative petition. In response to public
                                                                                                                                                                                   $600.66 per applicant. The total costs
                                        costs are highly variable and depend on                                      comment, DHS will allow an alien to
                                                                                                                                                                                   associated with the estimated
                                        the circumstances of the specific                                            file a new Form I–601A based on the
                                        petitioner. We did not estimate the                                          same approved immediate relative                              population volume are presented in
                                        impacts of these variable costs. To the                                      petition if the initial Form I–601A is                        Table 11.

                                             TABLE 11—COSTS ASSOCIATED WITH APPLICANTS THAT RE-FILE FORM I–601A AFTER THE INITIAL FORM I–601A IS
                                                                                  DENIED OR WITHDRAWN
                                                                                                                                 [Table 8 multiplied by $749.95]

                                                                                                                                                   Additional costs for applications that are denied and re-filed over the range
                                                                                                                                                                                     analysis of
                                                                                       Year
                                                                                                                                                      25 percent            50 percent          75 percent            90 percent
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                                        Year 1 ..............................................................................................           $10,938,021           $16,850,627            $22,763,982        $26,311,246
                                        Year 2 ..............................................................................................             6,678,305             8,154,956              9,632,358         10,518,049
                                        Year 3 ..............................................................................................             6,906,290             8,428,688              9,950,337         10,864,526

                                          46 The $31.31 rate is calculated by multiplying the                        2011 (available at http://www.bls.gov/oes/2011/               may/oes_nat.htm) by the 1.44 fully loaded
                                        $21.74 average hourly wage for all occupations May                                                                                         multiplier.



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                                        574                       Federal Register / Vol. 78, No. 2 / Thursday, January 3, 2013 / Rules and Regulations

                                            TABLE 11—COSTS ASSOCIATED WITH APPLICANTS THAT RE-FILE FORM I–601A AFTER THE INITIAL FORM I–601A IS
                                                                            DENIED OR WITHDRAWN—Continued
                                                                                                                                [Table 8 multiplied by $749.95]

                                                                                                                                                  Additional costs for applications that are denied and re-filed over the range
                                                                                                                                                                                    analysis of
                                                                                      Year
                                                                                                                                                     25 percent           50 percent          75 percent          90 percent

                                        Year   4 ..............................................................................................          7,141,774            8,710,669             10,280,315       11,222,252
                                        Year   5 ..............................................................................................          7,385,508            9,003,900             10,621,542       11,592,727
                                        Year   6 ..............................................................................................          7,637,491            9,306,130             10,974,768       11,975,952
                                        Year   7 ..............................................................................................          7,898,473            9,619,609             11,340,744       12,373,425
                                        Year   8 ..............................................................................................          8,169,205            9,943,587             11,718,719       12,783,648
                                        Year   9 ..............................................................................................          8,448,937           10,279,565             12,110,193       13,208,869
                                        Year   10 ............................................................................................           8,738,417           10,626,792             12,515,916       13,649,090

                                             10-Year Totals Undiscounted ...................................................                            79,942,420          100,924,521            121,908,872     134,499,783

                                             10-Year Totals Discounted at 7.0 percent ...............................                                   56,207,656           71,788,866             87,371,675       96,721,450

                                             10-Year Totals Discounted at 3.0 percent ...............................                                   68,195,707           86,516,943            104,840,098     115,834,193
                                           Note: Sums may not total due to rounding.


                                          The total cost to applicants is shown
                                        in Table 12 as the sum of Table 9, Table
                                        10, and Table 11.

                                                                                              TABLE 12—TOTAL COSTS TO APPLICANTS OF THE FINAL RULE
                                                                                                                                        [Sum of Tables 9–11]

                                                                                                                                                  Estimated total cost at current constrained demand or participation rate of
                                                                                      Year
                                                                                                                                                     25 percent           50 percent          75 percent          90 percent

                                        Year   1 ..............................................................................................        $57,898,052        $107,826,583            $157,756,013    $187,715,110
                                        Year   2 ..............................................................................................         20,718,162          33,189,154              45,659,297      53,143,051
                                        Year   3 ..............................................................................................         21,392,372          34,247,144              47,101,166      54,816,677
                                        Year   4 ..............................................................................................         22,087,603          35,339,893              48,593,083      56,547,045
                                        Year   5 ..............................................................................................         22,809,853          36,474,349              50,138,095      58,337,702
                                        Year   6 ..............................................................................................         23,554,023          37,644,613              51,735,204      60,190,697
                                        Year   7 ..............................................................................................         24,326,409          38,858,631              53,390,853      62,111,325
                                        Year   8 ..............................................................................................         25,126,162          40,114,053              55,102,544      64,096,488
                                        Year   9 ..............................................................................................         25,954,429          41,414,276              56,874,124      66,152,230
                                        Year   10 ............................................................................................          26,810,510          42,758,999              58,708,239      68,279,001

                                             10 Year Totals Undiscounted ...................................................                           270,677,572          447,867,695            625,058,617     731,389,326

                                             10 Year Totals Discounted at 7.0 percent ...............................                                  195,997,110          327,576,683            459,156,625     538,116,229

                                             10 Year Totals Discounted at 3.0 percent ...............................                                  233,800,123          388,519,186            543,238,818     636,084,535
                                           Note: Sums may not total due to rounding.


                                          Costs to the Federal Government                                           process workflow and resource                                for U.S. citizens and their immediate
                                        include the possible costs of additional                                    requirements as a normal part of its                         relatives. In addition to the obvious
                                        adjudication personnel associated with                                      biennial fee review. The biennial fee                        humanitarian and emotional benefits
                                        increased volume and the associated                                         review determines if fees for                                derived from family reunification, we
                                        equipment (computers, telephones) and                                       immigration benefits are sufficient in                       also anticipate significant financial
                                        occupancy costs (if additional space is                                     light of resource needs and filing trends.                   benefits accruing to the U.S. citizen due
                                        required). However, we expect these                                         Consequently, we do not believe that                         to the shortened period he or she would
                                        costs to be offset by the additional fee                                    this rule will impose additional costs on                    have to financially support the alien
                                        revenue collected for form processing.                                      the Federal Government.                                      relative abroad. DHS is currently unable
                                        As previously explained, DHS has                                            6. Benefits                                                  to estimate the average duration of time
                                        adopted the current cost for                                                                                                             an immediate relative must spend
                                        adjudicating an Application for Waiver                                        The benefits of the rule are the result                    abroad while awaiting waiver
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                                        of Ground of Inadmissibility, Form I–                                       of streamlining the immigrant visa                           adjudication under the current process,
                                        601($585), as the initial filing fee that                                   waiver process. The primary benefits of                      and so cannot predict how the time
                                        will be required for the Form I–601A.                                       the provisional unlawful presence                            spent apart would be reduced under the
                                        DHS will consider the impact of the                                         waiver process changes are qualitative                       provisional unlawful presence waiver
                                        provisional unlawful presence waiver                                        and result from reduced separation time                      process. As a result of streamlining the


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                                        unlawful presence waiver process, there                 approval of this newly created                         originally proposed form I–601A and its
                                        also could be workflow efficiencies                     instrument from OMB.                                   instructions to include the changes as
                                        realized by both USCIS and DOS. The                        DHS submitted Form I–601A to OMB                    discussed in Part IV (Public Comments
                                        new process will enable USCIS to                        for review. OMB temporarily assigned                   on the Proposed Rule) and the appendix
                                        process and adjudicate the provisional                  an OMB Control Number, 1615–0123, to                   of the supporting statement. The revised
                                        unlawful presence waivers                               the form and also filed comments in                    materials can be viewed at
                                        domestically. As a result, USCIS may be                 accordance with 5 CFR 1320.11(c). DHS                  www.regulations.gov.
                                        able to move a large part of its workload               has considered the comments received
                                        to Service Centers or field offices with                in response to the publication of the                  G. Regulatory Flexibility Act
                                        resources that are less expensive than                  proposed rule and the comments
                                                                                                                                                          The Regulatory Flexibility Act of 1980
                                        overseas staffing resources and that are                submitted by OMB concerning the
                                                                                                                                                       (RFA), 5 U.S.C. 601–612, as amended by
                                        flexible enough to accommodate filing                   creation of the Form I–601A. DHS’
                                                                                                response to the comments appears in                    the Small Business Regulatory
                                        surges. In addition, the new provisional                                                                       Enforcement Fairness Act of 1996,
                                        unlawful presence waiver process will                   this final rule and in an appendix to the
                                                                                                supporting statement that accompanies                  Public Law 104–121 (March 29, 1996),
                                        allow DOS to review these cases once,                                                                          requires Federal agencies to consider
                                        as opposed to the current unlawful                      this rule. USCIS has submitted the
                                                                                                supporting statement to OMB as part of                 the potential impact of regulations on
                                        presence process where these cases are                                                                         small businesses, small governmental
                                        reviewed twice, at a minimum. DHS                       its request for approval of this new
                                                                                                information collection instrument.                     jurisdictions, and small organizations
                                        anticipates that the new process will                                                                          during the development of their rules.
                                        make the immigrant visa process more                       On April 2, 2012, DHS published a
                                                                                                proposed rule, Provisional Unlawful                    The term ‘‘small entities’’ comprises
                                        efficient.
                                                                                                Presence Waivers of Inadmissibility for                small businesses, not-for-profit
                                        D. Executive Order 13132                                Certain Immediate Relatives, in the                    organizations that are independently
                                                                                                Federal Register at 77 FR 19902. In the                owned and operated and are not
                                          This final rule will not have                                                                                dominant in their fields, and
                                                                                                PRA section of that rule, DHS
                                        substantial direct effects on the States,                                                                      governmental jurisdictions with
                                                                                                inadvertently indicated that USCIS
                                        on the relationship between the                                                                                populations of less than 50,000.
                                                                                                would be seeking to revise a currently
                                        National Government and the States, or
                                                                                                approved information collection                           DHS has reviewed this regulation in
                                        on the distribution of power and
                                                                                                instrument. DHS, however, should have                  accordance with the Regulatory
                                        responsibilities among the various
                                                                                                indicated that it would be requesting the              Flexibility Act and certifies that this
                                        levels of government. Therefore, in
                                                                                                approval of a new information                          rule will not have a significant
                                        accordance with section 6 of Executive
                                                                                                collection instrument, Application for                 economic impact on a substantial
                                        Order 13132, it is determined that this
                                                                                                Provisional Unlawful Presence Waiver,                  number of small entities. The factual
                                        rule does not have sufficient federalism
                                                                                                Form I–601A. This final rule corrects                  basis for this determination is that this
                                        implications to warrant the preparation                 that error.
                                        of a federalism summary impact                                                                                 rule directly regulates individuals who
                                                                                                   Despite the inadvertent error in the
                                        statement.                                                                                                     are the immediate relatives of U.S.
                                                                                                notice inserted in the PRA portion of the
                                                                                                                                                       citizens seeking to apply for an
                                        E. Executive Order 12988 Civil Justice                  proposed rule, DHS clearly
                                                                                                                                                       unlawful presence waiver of
                                        Reform                                                  communicated to the public, in other
                                                                                                                                                       inadmissibility in order to be eligible to
                                                                                                parts of the proposed rule, that it was
                                          Section 3(c) of Executive Order 12988                                                                        obtain an immigrant visa outside the
                                                                                                considering the creation of a new
                                        requires Executive agencies to review                                                                          United States. The impact is on these
                                                                                                information collection instrument, Form
                                        regulations in light of applicable                                                                             persons as individuals, so that they are
                                                                                                I–601A, to be able to collect information
                                        standards in section 3(a) and section                   required from certain immediate                        not, for purposes of the Regulatory
                                        3(b) to determine whether they are met                  relatives of U.S. citizens seeking a                   Flexibility Act, within the definition of
                                        or it is unreasonable to meet one or                    provisional unlawful presence waiver of                small entities established by 5 U.S.C.
                                        more of them. DHS has completed the                     the unlawful presence inadmissibility                  601(6). DHS received no public
                                        required review and determined that, to                 ground. USCIS received comments from                   comments challenging this certification.
                                        the extent permitted by law, this final                 the public on the proposed Form I–                     VII. Amendments
                                        rule meets the relevant standards of                    601A. Those comments have been
                                        Executive Order 12988.                                  addressed under part IV (Public                        List of Subjects
                                        F. Paperwork Reduction Act                              Comments on Proposed Rule).                            8 CFR Part 103
                                                                                                   Lastly, DHS has updated the
                                          Under the Paperwork Reduction Act                     supporting statement to reflect a change                 Administrative practice and
                                        of 1995 (PRA), Public Law 104–13, all                   in the estimate for the number of                      procedures, Authority delegations
                                        Departments are required to submit to                   respondents that USCIS projected                       (government agencies), Freedom of
                                        the Office of Management and Budget                     would submit this type of request from                 Information; Privacy, Reporting and
                                        (OMB), for review and approval, any                     38,277 respondents to 62,348                           recordkeeping requirements, Surety
                                        reporting and recordkeeping                             respondents. This change of the initially              bonds.
                                        requirements inherent in a rule. See                    projected estimate is due to the final
                                        Public Law 104–13, 109 Stat. 163 (May                   rule’s expansion of the eligibility                    8 CFR Part 212
                                        22, 1995). This final rule requires that                criterion initially proposed, which
                                                                                                                                                         Administrative practice and
                                        an applicant requesting a provisional                   results in an increase of the estimated
                                                                                                                                                       procedure, Aliens, Immigration,
                                        unlawful presence waiver complete an                    population of aliens that DHS expects
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                                                                                                                                                       Passports and visas, Reporting and
                                        Application for Provisional Waiver of                   could file Form I–601A. With the
                                                                                                                                                       recordkeeping requirements.
                                        Unlawful Presence, Form I–601A. This                    increase in the total number of
                                        form is considered new information                      respondents, DHS has increased the                       Accordingly, USCIS amends chapter I
                                        collection and is covered under the                     total annual burden hours to 166,469                   of title 8 of the Code of Federal
                                        PRA. USCIS is currently seeking                         hours. In addition, DHS has revised the                Regulations as follows.


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                                        PART 103—POWERS AND DUTIES;                              103.7(b)(1), and in accordance with the                of the waiver is not required when an
                                        AVAILABILITY OF RECORDS                                  form instructions. Certain immigrants                  alien is notified of the termination of
                                                                                                 may apply for a provisional unlawful                   residence under section 216 of the Act,
                                        ■ 1. The authority citation for part 103                 presence waiver of inadmissibility as                  and no appeal will lie from the decision
                                        continues to read as follows:                            specified in 8 CFR 212.7(e).                           to terminate the waiver on this basis. If
                                          Authority: 5 U.S.C. 301, 552, 552a; 8                  *       *     *     *    *                             the alien challenges the termination in
                                        U.S.C. 1101, 1103, 1304, 1356, 1365b; 31                    (3) Decision. If the waiver application             removal proceedings, and the removal
                                        U.S.C. 9701; Pub. L. 107–296, 116 Stat. 2135             is denied, USCIS will provide a written                proceedings end in the restoration of the
                                        (6 U.S.C. 1 et seq.); E.O. 12356, 47 FR 14874,           decision and notify the applicant and                  alien’s status, the waiver will become
                                        15557, 3 CFR, 1982 Comp., p.166; 8 CFR                                                                          effective again.
                                                                                                 his or her attorney or accredited
                                        part 2.                                                                                                            (v) Nothing in this subsection
                                                                                                 representative and will advise the
                                        ■ 2. Section 103.7 is amended by                         applicant of appeal procedures, if any,                precludes USCIS from reopening and
                                        revising paragraphs (b)(1)(i)(AA) and                    in accordance with 8 CFR 103.3. The                    reconsidering a decision if the decision
                                        (c)(3)(i) to read as follows:                            denial of a provisional unlawful                       is determined to have been made in
                                        § 103.7   Fees.                                          presence waiver is governed by 8 CFR                   error.
                                        *      *     *    *     *                                212.7(e).                                              *       *    *     *     *
                                           (b) * * *                                                (4) Validity. (i) A provisional                        (e) Provisional Unlawful Presence
                                           (1) * * *                                             unlawful presence waiver granted                       Waivers of Inadmissibility for Certain
                                           (i) * * *                                             according to paragraph (e) of this                     Immediate Relatives. The provisions of
                                           (AA) Application for Waiver of                        section is valid subject to the terms and              this paragraph (e) are applicable to
                                        Ground of Inadmissibility (Form I–601)                   conditions as specified in paragraph (e)               certain aliens who are pursuing
                                        and Application for Provisional                          of this section. In any other case,                    consular immigrant visa processing as
                                        Unlawful Presence Waiver (I–601A). For                   approval of an immigrant waiver of                     an immediate relative of a U.S. citizen.
                                        filing an application for waiver of                      inadmissibility under this section                        (1) Jurisdiction. All applications for a
                                        grounds of inadmissibility or an                         applies only to the grounds of                         provisional unlawful presence waiver,
                                        application for a provisional unlawful                   inadmissibility, and the related crimes,               including an application for a
                                        presence waiver: $585.                                   events, or incidents that are specified in             provisional unlawful presence waiver
                                                                                                 the application for waiver.                            made by an alien in removal
                                        *      *     *    *     *
                                           (c) * * *                                                (ii) Except for K–1 and K–2                         proceedings before the Executive Office
                                           (3) * * *                                             nonimmigrants and aliens lawfully                      for Immigration Review, must be filed
                                           (i) Biometric Fee, except for the                     admitted for permanent residence on a                  with USCIS, with the fees prescribed in
                                        biometric fee required for provisional                   conditional basis, an immigrant waiver                 8 CFR 103.7(b), and in accordance with
                                        unlawful presence waivers filed under 8                  of inadmissibility is valid indefinitely,              the form instructions.
                                        CFR 212.7(e).                                            even if the applicant later abandons or                   (2) Provisional Unlawful Presence
                                                                                                 otherwise loses lawful permanent                       Waiver; In General. (i) USCIS may
                                        *      *     *    *     *
                                                                                                 resident status.                                       adjudicate applications for a provisional
                                        PART 212—DOCUMENTARY                                        (iii) For a K–1 or K–2 nonimmigrant,                unlawful presence waiver of
                                        REQUIREMENTS; NONIMMIGRANTS;                             approval of the waiver is conditioned on               inadmissibility based on section
                                        WAIVERS; ADMISSION OF CERTAIN                            the K–1 nonimmigrant marrying the                      212(a)(9)(B)(v) of the Act filed by
                                        INADMISSIBLE ALIENS; PAROLE                              petitioner; if the K–1 nonimmigrant                    eligible aliens described in paragraph
                                                                                                 marries the K nonimmigrant petitioner,                 (e)(3) of this section. USCIS will only
                                        ■ 3. The authority citation for part 212                 the waiver becomes valid indefinitely,                 approve such provisional unlawful
                                        continues to read as follows:                            subject to paragraph (a)(4)(iv) of this                presence waiver applications in
                                           Authority: 8 U.S.C. 1101 and note, 1102,
                                                                                                 section, even if the applicant later                   accordance with the conditions outlined
                                        1103, 1182 and note, 1184, 1187, 1223, 1225,             abandons or otherwise loses lawful                     in paragraph (e) of this section.
                                        1226, 1227, 1255, 1359; 8 U.S.C. 1185 note               permanent resident status. If the K–1                  Consistent with section 212(a)(9)(B)(v)
                                        (section 7209 of Pub. L. 108–458); 8 CFR part            does not marry the K nonimmigrant                      of the Act, the decision whether to
                                        2. Section 212.1(q) also issued under section            petitioner, the K–1 and K–2                            approve a provisional unlawful
                                        702, Pub. L. 110–229, 122 Stat. 754, 854.                nonimmigrants remain inadmissible for                  presence waiver application is
                                                                                                 purposes of any application for a benefit              discretionary and does not constitute a
                                        ■ 4. Section 212.7 is amended by:
                                        ■ a. Revising paragraphs (a)(1), (a)(3),                 on any basis other than the proposed                   grant of a lawful immigration status or
                                        and (a)(4); and                                          marriage between the K–1 and the K                     a period of stay authorized by the
                                        ■ b. Adding paragraph (e).
                                                                                                 nonimmigrant petitioner.                               Secretary.
                                          The revisions and addition read as                        (iv) For an alien lawfully admitted for                (ii) A pending or an approved
                                        follows:                                                 permanent residence on a conditional                   provisional unlawful presence waiver
                                                                                                 basis under section 216 of the Act,                    does not authorize any interim
                                        § 212.7 Waivers of certain grounds of                    removal of the conditions on the alien’s               immigration benefits such as
                                        inadmissibility.                                         status renders the waiver valid                        employment authorization or advance
                                          (a)(1) Application. Except as provided                 indefinitely, even if the applicant later              parole. Any application for a travel
                                        by 8 CFR 212.7(e), an applicant for an                   abandons or otherwise loses lawful                     document or request for employment
                                        immigrant visa, adjustment of status, or                 permanent resident status. Termination                 authorization that is submitted in
                                        a K or V nonimmigrant visa who is                        of the alien’s status as an alien lawfully             connection with a provisional unlawful
                                        inadmissible under any provision of                      admitted for permanent residence on a                  presence waiver application will be
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                                        section 212(a) of the Act for which a                    conditional basis also terminates the                  rejected.
                                        waiver is available under section 212 of                 validity of a waiver of inadmissibility                   (3) Eligible aliens. Except as provided
                                        the Act may apply for the related waiver                 based on sections 212(h) or 212(i) of the              in paragraph (e)(4) of this section, an
                                        by filing the form designated by USCIS,                  Act that was granted to the alien.                     alien may be eligible to apply for and
                                        with the fee prescribed in 8 CFR                         Separate notification of the termination               receive a provisional unlawful presence


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                                        waiver for the grounds of                               final order of exclusion or deportation                The alien may not appeal or file a
                                        inadmissibility under section                           under former 236 or 242 of the Act (pre-               motion to reopen or reconsider an
                                        212(a)(9)(B)(i)(I) or (II) of the Act if he             April 1, 1997), or any other provision of              abandonment denial under 8 CFR 103.5.
                                        or she meets the requirements in this                   law (including an in absentia removal                     (7) Burden of proof. The alien has the
                                        paragraph. An alien may be eligible to                  order under section 240(b)(5) of the                   burden to establish eligibility for the
                                        apply for or receive a waiver if he or                  Act);                                                  provisional unlawful presence waiver as
                                        she:                                                       (vii) The alien is subject to                       described in this paragraph of this
                                           (i) Is present in the United States at               reinstatement of a prior removal order                 section, and under section
                                        the time of filing the application for a                under section 241(a)(5) of the Act; or                 212(a)(9)(B)(v) of the Act, including that
                                        provisional unlawful presence waiver,                      (viii) The alien has a pending                      the alien merits a favorable exercise of
                                        and for biometrics collection at a USCIS                application with USCIS for lawful                      the Secretary’s discretion.
                                        ASC;                                                    permanent resident status.                                (8) Adjudication. USCIS will
                                           (ii) Upon departure, would be                           (5) Filing. (i) An application for a                adjudicate the provisional unlawful
                                        inadmissible only under section                         provisional unlawful presence waiver of                presence waiver application in
                                        212(a)(9)(B)(i) of the Act at the time of               the unlawful presence inadmissibility                  accordance with this paragraph of this
                                        the immigrant visa interview;                           bars under section 212(a)(9)(B)(i)(I) or               section and section 212(a)(9)(B)(v) of the
                                           (iii) Qualifies as an immediate relative             (II) of the Act, including an application              Act, except the alien must show extreme
                                        under section 201(b)(2)(A)(i) of the Act;               by an alien in removal proceedings that                hardship to his or her U.S. citizen
                                           (iv) Is the beneficiary of an approved               are administratively closed and have not               spouse or parent. USCIS also may
                                        immediate relative petition;                            been recalendared at the time of filing                require the alien and the U.S. citizen
                                           (v) Has a case pending with the                      the Form I–601A, must be filed in                      petitioner to appear for an interview
                                        Department of State based on the                        accordance with 8 CFR part 103 and on                  pursuant to 8 CFR 103.2(b)(9). If USCIS
                                        approved immediate relative petition                    the form designated by USCIS. The                      finds that the alien does not meet the
                                        and has paid the immigrant visa                         prescribed fee under 8 CFR 103.7(b)(1)                 eligibility requirements for the
                                        processing fee as evidenced by a State                  and supporting documentation must be                   provisional unlawful presence waiver as
                                        Department Visa Processing Fee                          submitted in accordance with the form                  described in paragraph (e) of this
                                        Receipt;                                                instructions.                                          section, or if USCIS otherwise
                                           (vi) Will depart from the United States                 (ii) An application for a provisional               determines in its discretion that a
                                        to obtain the immediate relative                        unlawful presence waiver will be                       waiver is not warranted, USCIS will
                                        immigrant visa; and                                     rejected and the fee and package                       deny the waiver application.
                                           (vii) Meets the requirements for a                   returned to the alien if the alien:                    Notwithstanding 8 CFR 103.2(b)(16),
                                        waiver provided in section                                 (A) Fails to pay the required filing fee            USCIS may deny an application for a
                                        212(a)(9)(B)(v) of the Act, except the                  for the provisional unlawful presence                  provisional unlawful presence waiver
                                        alien must show extreme hardship to                     waiver application or to pay the correct               without prior issuance of a request for
                                        his or her U.S. citizen spouse or parent.               filing fee;                                            evidence or notice of intent to deny.
                                           (4) Ineligible Aliens. Notwithstanding                  (B) Fails to sign the provisional                      (9) Notice of Decision. USCIS will
                                        paragraph (e)(3) of this section, an alien              unlawful presence waiver application;                  notify the alien and the alien’s attorney
                                        is ineligible for a provisional unlawful                   (C) Fails to provide his or her family              of record or accredited representative of
                                        presence waiver under paragraph (e) of                  name, domestic home address, and date                  the decision in accordance with 8 CFR
                                        this section if:                                        of birth;                                              103.2(b)(19). USCIS also may notify the
                                           (i) USCIS has reason to believe that                    (D) Is under the age of 17;                         Department of State. Denial of an
                                        the alien may be subject to grounds of                     (E) Does not include evidence of an                 application for a provisional unlawful
                                        inadmissibility other than unlawful                     approved petition that classifies the                  presence waiver is without prejudice to
                                        presence under section 212(a)(9)(B)(i)(I)               alien as an immediate relative of a U.S.               the alien filing another provisional
                                        or (II) of the Act at the time of the                   citizen;                                               unlawful presence waiver application
                                        immigrant visa interview with the                          (F) Fails to include a copy of the fee              under paragraph (e) of this section,
                                        Department of State;                                    receipt evidencing that the alien has                  provided the alien meets all of the
                                           (ii) The alien is under the age of 17;               paid the immigrant visa processing fee                 requirements in this part, and the alien’s
                                           (iii) The alien does not have a case                 to the Department of State; or                         case must be pending with the
                                        pending with the Department of State,                      (G) Has indicated on the provisional                Department of State. An alien also may
                                        based on the approved immediate                         unlawful presence waiver application                   elect to file a Form I–601, Waiver of
                                        relative petition, and has not paid the                 that the Department of State initially                 Grounds of Inadmissibility, pursuant to
                                        immigrant visa processing fee;                          acted to schedule the immigrant visa                   paragraph (a)(1) of this section after
                                           (iv) The Department of State initially               interview prior to January 3, 2013, even               departing the United States, appearing
                                        acted to schedule the immigrant visa                    if the interview was cancelled or                      for his or her immigrant visa interview
                                        interview prior to January 3, 2013 for                  rescheduled after January 3, 2013.                     at the U.S. Embassy or consulate abroad,
                                        the approved immediate relative                            (6) Biometrics. (i) All aliens who                  and after the Department of State
                                        petition on which the provisional                       apply for a provisional unlawful                       determines the alien’s admissibility and
                                        unlawful presence waiver is based, even                 presence waiver under this section will                eligibility for an immigrant visa.
                                        if the interview has since been cancelled               be required to provide biometrics in                   Accordingly, denial of a request for a
                                        or rescheduled after January 3, 2013;                   accordance with 8 CFR 103.16 and                       provisional unlawful presence waiver is
                                           (v) The alien is in removal                          103.17, as specified on the form                       not a final agency action for purposes of
                                        proceedings, unless the removal                         instructions.                                          section 10(c) of the Administrative
                                        proceedings are administratively closed                    (ii) Failure to appear for biometrics               Procedure Act, 5 U.S.C. 704.
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                                        and have not been recalendared at the                   capture. If an alien fails to appear for                  (10) Withdrawal of waiver requests.
                                        time of filing the Form I–601A;                         biometrics capture, the provisional                    An alien may withdraw his or her
                                           (vi) The alien is subject to a final                 unlawful presence waiver application                   request for a provisional unlawful
                                        order of removal issued under section                   will be considered abandoned and                       presence waiver at any time before
                                        217, 235, 238, or 240 of the Act or a                   denied pursuant to 8 CFR 103.2(b)(13).                 USCIS makes a final decision. Once the


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                                        case is withdrawn, USCIS will close the                 Department of State consular officer in                presence waiver is revoked
                                        case and notify the alien and his or her                light of the approved provisional                      automatically if:
                                        attorney or accredited representative.                  unlawful presence waiver.                                 (i) The consular officer determines at
                                        The alien may file a new Form I–601A,                      (ii) Waives the alien’s inadmissibility             the time of the immigrant visa interview
                                        in accordance with the form                             under section 212(a)(9)(B) of the Act                  that the alien is ineligible to receive a
                                        instructions and required fees. The                     only for purposes of the application for               visa under section 212(a) of the Act
                                        alien’s case must be pending with the                   an immigrant visa and admission to the                 other than under section
                                        Department of State and the alien must                  United States as an immediate relative                 212(a)(9)(B)(i)(I) or (II) of the Act;
                                        notify the Department of State that he or               of a U.S. citizen pursuant to the                         (ii) The immigrant visa petition
                                        she intends to file a new Form I–601A.                  approved immediate relative petition                   approval associated with the provisional
                                           (11) Appeals and Motions To Reopen.                  (Form I–130 or I–360) upon which the                   unlawful presence waiver is at any time
                                        There is no administrative appeal from                  provisional unlawful presence waiver                   revoked, withdrawn, or rendered
                                        a denial of a request for a provisional                 application was based.                                 invalid but not otherwise reinstated for
                                        unlawful presence waiver under this                        (iii) Does not waive any ground of                  humanitarian reasons or converted to a
                                        section. The alien may not file, pursuant               inadmissibility other than the grounds                 widow or widower petition;
                                        to 8 CFR 103.5, a motion to reopen or                   of inadmissibility under section                          (iii) The immigrant visa registration is
                                        reconsider a denial of a provisional                    212(a)(9)(B)(i)(I) or (II) of the Act.                 terminated in accordance with section
                                        unlawful presence waiver application                       (13) Validity. Until the provisional                203(g) of the Act, and has not been
                                        under this section.                                     unlawful presence waiver takes full                    reinstated in accordance with section
                                           (12) Approval and Conditions. A                      effect as provided in paragraph (e)(12) of             203(g) of the Act; or
                                        provisional unlawful presence waiver                    this section, USCIS may reopen and                        (iv) The alien, at any time before or
                                        granted under this section:                             reconsider its decision at any time.                   after approval of the provisional
                                           (i) Does not take effect unless, and                 Once a provisional unlawful presence                   unlawful presence waiver or before an
                                        until, the alien who applied for and                    waiver takes full effect as defined in                 immigrant visa is issued, reenters or
                                        obtained the provisional unlawful                       paragraph (e)(12) of this section, the                 attempts to reenter the United States
                                        presence waiver:                                        period of unlawful presence for which                  without being inspected and admitted
                                           (A) Departs from the United States;                  the provisional unlawful presence                      or paroled.
                                           (B) Appears for an immigrant visa                    waiver is granted is waived indefinitely,
                                        interview at a U.S. Embassy or                          in accordance with and subject to                      Janet Napolitano,
                                        consulate; and                                          paragraph (a)(4) of this section.                      Secretary.
                                           (C) Is determined to be otherwise                       (14) Automatic Revocation. The                      [FR Doc. 2012–31268 Filed 1–2–13; 4:18 pm]
                                        eligible for an immigrant visa by a                     approval of a provisional unlawful                     BILLING CODE 9111–97–P
emcdonald on DSK67QTVN1PROD with




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