78 FR 536 Jan 3, 2013 I-601A ULP Provisional Waiver Rule

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78 FR 536 Jan 3, 2013 I-601A ULP Provisional Waiver Rule

  1. 1. 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 Ruleemcdonald on DSK67QTVN1PROD with VerDate Mar<15>2010 14:28 Jan 02, 2013 Jkt 229001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:FRFM03JAR3.SGM 03JAR3
  2. 2. 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,emcdonald on DSK67QTVN1PROD with 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 VerDate Mar<15>2010 14:28 Jan 02, 2013 Jkt 229001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:FRFM03JAR3.SGM 03JAR3
  3. 3. 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 eligibilityemcdonald on DSK67QTVN1PROD with 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 VerDate Mar<15>2010 14:28 Jan 02, 2013 Jkt 229001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:FRFM03JAR3.SGM 03JAR3
  4. 4. 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) thatemcdonald on DSK67QTVN1PROD with 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 VerDate Mar<15>2010 14:28 Jan 02, 2013 Jkt 229001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:FRFM03JAR3.SGM 03JAR3
  5. 5. 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 costsemcdonald on DSK67QTVN1PROD with 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. VerDate Mar<15>2010 14:28 Jan 02, 2013 Jkt 229001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:FRFM03JAR3.SGM 03JAR3
  6. 6. 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 oremcdonald on DSK67QTVN1PROD with 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. VerDate Mar<15>2010 14:28 Jan 02, 2013 Jkt 229001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:FRFM03JAR3.SGM 03JAR3
  7. 7. Federal Register / Vol. 78, No. 2 / Thursday, January 3, 2013 / Rules and Regulations 541 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. Currentemcdonald on DSK67QTVN1PROD with 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 VerDate Mar<15>2010 14:28 Jan 02, 2013 Jkt 229001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:FRFM03JAR3.SGM 03JAR3
  8. 8. 542 Federal Register / Vol. 78, No. 2 / Thursday, January 3, 2013 / Rules and Regulations 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,emcdonald on DSK67QTVN1PROD with 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 VerDate Mar<15>2010 14:28 Jan 02, 2013 Jkt 229001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:FRFM03JAR3.SGM 03JAR3

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