AAO non precedent 212(i) sustained appeal Oct 16, 2012 and more

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AAO non precedent 212(i) sustained appeal Oct 16, 2012 and more

  1. 1. 1.) I-601 sustained appeal;2.) I-212 reopened and approved based on I-601; U.S. Department of Homeland Security3.) 2 page article/blog from January 2012; U.S. Citizenship and Immigration Services4.) USCIS FR Notice about I-601A. Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090 U.S. Citizenship and Immigration Services Date: Office: VIENNA, AUSTRIA FILE: OCT 16 2012 INRE: Applicant: APPLICATION: Application for Waiver of Grounds ofinadmissibility under section 212(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(i); Application for Waiver of Grounds ofinadmissibility under section 212(a)(9)(B)(v) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(9)(B)(v) ON BEHALF OF APPLICANT: MARSHAL E. HYMAN, ESQ. MARSHAL E. HYMAN & ASSOCIATES, P.C. SHEFFIELD OFFICE PARK PLAZA 3250 WEST BIG BEAVER, SUIITE 529 TROY, MI 48084 INSTRUCTIONS: Enclosed please find the decision of the Administrative Appeals Office in your case .. All of the documents related to this matter have been r~turned to the office that originally decided your case. Please be advised that any further inqui1y that you might have conceming your case must be made to that office. Thank you, PerryRhew Chief, Administrative Appeals Office
  2. 2. DISCUSSION: The waiver application was denied by the Field Office Director, Vienna, Austria. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained. The applicant is a native and citizen of Montenegro who was found to be inadmissible to the United States pursuant to section 212(a)(6)(C)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(a)(6)(C)(i), for seeking to procure admission to the United States through fraud or misrepresentation. The record indicates that the applicant entered the United States o n - 2002 using a passpmt which belonged to another person. 1n addition, the applicant was found to be inadmissible to the United States pursuant to section 212(a)(9)(B)(i)(II) of the Act, 8 U.S.C. §· 1182(a)(9)(B)(i)(II), for having been unlawfully present in the United States for more than one year. After entering the United States in 2002 using a passport belonging to another person, the applicant applied for asylum in the United States. The applicants asylum and an appeal to. the U.S. Comt of Appeals for the Second Circuit was dismissed 2006. However, the applicant· did not depmt following of his asylum and was subsequently removed from the United States 2011. Thus the applicant accrned unlawful presence in the United States u n t i l - 2011, a period of more than one year. The applicant does not contest the findings of inadmissibility, but rather seeks a waiver of inadmissibility under section 212(i) of the Act, 8 U.S.C. § 1182(i), and under section 212(a)(9)(B)(v) of the Act, 8 U.S.C. § 1182(a)(9)(B)(v), in order to reside in the United States with his U.S. citizen wife.The field office director concluded that the applicant failed to establish that extreme hardship wouldbe imposed on a qualifying relative and denied the Form accordingly. See Decision of theField Office Director, dated September 30, 2011.The record contains the following documentation: briefs filed by the applicants attorney; statementsfrom the applicant, the applicants spouse, the applicants father, and the father and mother of theapplicants spouse; financial documentation; psychological evaluations of the applicants spouse;medical documentation for the applicants spouse and the father and mother of the applicantsspouse; and letters of recommendation. The entire record was reviewed and considered in renderinga decision on the appeal.Section 212(a)(6)(C) of the Act provides, in pertinent part: (i) Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.Section 212(i) of the Act provides, in pertinent part: The Attorney General [now the Secretary of Homeland Security (Secretary)] may, in the discretion of the Attomey General [Secretary], waive the application of clause (i) AILA InfoNet Doc. No. 12103060. (Posted 10/30/12)
  3. 3. of subsection (a)(6)(C) in the case of an alien who is the spouse, son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attomey General [Secretary] that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien .... Section 212(a)(9)(B) of the Act provides, in pertinent part: Aliens Unlawfully Present.- (i) In general. - Any alien (other than an alien lawfully admitted for permanent residence) who- (II) has been nnlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such aliens departure or removal from the United States, is inadmissible. (v) Waiver. - The Attomey General [now the Secretary of Homeland Security (Secretary)] has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attomey General (Secretary) that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien ...A waiver of inadmissibility under section 212(i) of the Act and under section 212(a)(9)(B)(v) of theAct is dependent on a showing that the bar to admission imposes extreme hardship on a qualifyingrelative, which includes the U.S. citizen or lawfully resident spouse or parent of the applicant. Theapplicants U.S. citizen spouse is the only qualifying relative in this case. Under these twoprovisions of the law, children are not deemed to be "qualifying relatives." However, althoughchildren are not qualifying relatives under the statute, USCIS does consider that a childs hardshipcan be a factor in the dete1mination whether a qualifying relative experiences extreme hardship. Ifextreme hardship to a qualifying relative is established, the applicant is statutorily eligible for awaiver, and USCIS then assesses whether a favorable exercise of discretion is wananted. SeeMatter of Mendez-Moralez 21 I&N Dec. 296, 301 (BIA 1996).Extreme hardship is "not a definable term of fixed and inflexible content or meaning," but"necessarily depends upon the facts and circumstances peculiar to each case." Matter of Hwang,10 I&N Dec. 448, 451 (BIA 1964). In Matter of Cervantes-Gonzalez, the Board provided a list offactors it deemed relevant in dete1mining whether an alien has established extreme hardship to a AILA InfoNet Doc. No. 12103060. (Posted 10/30/12)
  4. 4. Page4 qualifying relative. 22 I&N Dec. 560, 565 (BIA 1999). The factors include the presence of a lawful permanent resident or United States citizen spouse or parent in this country; the qualifying relatives family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relatives ties in such countries; the financial impact of depm.ture from this country; and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate. Id. The Board added that not all of the foregoing factors need be analyzed in any given case and emphasized that the list of factors was not exclusive. Id. at 566.The Board has also held that the common or typical results of removal and inadmissibility do notconstitute extreme hardship, and has listed certain individual hardship factors considered commonrather than extreme.· These factors include: economic disadvantage, loss of culTent employment,inability to maintain ones present standard of living, inability to pursue a chosen profession,separation from family members, severing community ties, cultural readjustment after living in theUnited States for many years, cultural adjustment of qualifying relatives who have never livedoutside the United States, inferior economic and educational opportunities in the foreign country, orinferior medical facilities in the foreign country. See generally Matter of Cervantes-Gonzalez, 22I&NDec. at 568; Matter of Pilch, 21 I&N Dec. 627, 632-33 (BIA 1996); Matter of Ige, 20 I&N Dec.880, 883 (BIA 1994); Matter of Ngai, 19 I&N Dec. 245, 246-47 (Commr 1984); Matter of Kim, 15I&N Dec. 88, 89-90 (BIA 1974); Matter of Shaughnessy, 12 I&N Dec. 810, 813 (BIA 1968).However, though hardships may not be extreme when considered abstractly or individually, theBoard has made it clear that "[r]elevant factors, though not extreme in themselves, must beconsidered in the aggregate in determining whether extreme hardship exists." Matter of 0-J-0-, 21I&N Dec. 381, 383 (BIA 1996) (quoting Matter of Ige, 20 I&N Dec. at 882). The adjudicator "mustconsider the entire range of factors concerning hardship in their totality and determine whether thecombination of hardships takes the case beyond those hardships ordinarily associated withdepmtation." Id. The actual hardship associated with an abstract hardship factor such as family separation, economic disadvantage, cultural readjustment, et cetera, differs in nature and severity depending on the unique circumstances of each case, as does the cumulative hardship a qualifying relative experiences as a .result of aggregated individual hardships. See, e.g., Matter of Bing Chih Kao and Mei Tsui Lin, 23I&N Dec. 45, 51 (BIA 2001) (distinguishing Matter of Pilch regarding hardship faced by qualifyingrelatives on the basis of variations in the length of residence in the United States and the ability tospeak the language of the country to which they would relocate). For example, though familyseparation has been found to be a common result of inadmissibility or removal, separation fromfamily living in the United States can also be the most important single hardship factor inconsidering hardship in the aggregate. See Salcido-Salcido, 138 F.3d at 1293 (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983)); but see Matter of Ngai, 19 I&N Dec. at 247(separation of spouse and children from applicant not extreme hardship due to conflicting evidencein the record and because applicant and spouse had been voluntarily separated from one another for28 years). Therefore, we consider the totality of the circumstances in determining whether denial ofadmission would result in extreme hardship to a qualifying relative. AILA InfoNet Doc. No. 12103060. (Posted 10/30/12)
  5. 5. Counsel contends that the applicants spouse is suffering from financial hardship due to her separation from the applicant. In an affidavit, the applicants spouse states that she is unable to work because she is caring for her parents, and that she was forced to move out of her house and rent the house in order to pay the monthly mortgage payments. Financial documentation in the file indicates that in 2008, the applicant and his spouse had a monthly mortgage payment of $1 ,285.44. A copy of the 2008 federal income tax return for the applicant and his spouse indicated that the couple had an adjusted gross income of $24,938, and that the occupation of the applicants spouse was customer service. Counsel states that the applicants spouse became a stay-at-home mother after the birth of their second child in June 2008, in order to care for their two young children. In an affidavit dated April 11, 2011, the applicants spouse states that she has no independent source of income. A psychological evaluation in the record indicates that the applicants spouse stated that her husband was the only provider in the family, and that she is now getting food stamps.Counsel also states that the applicants spouse is suffering from medical hardship. The applicantsspouse states that she was involved in a car accident in September 1998, in which she sufferedbroken bones and. spinal damage. The record includes medical documentation indicating that theapplicants spouse suffered lower back pain, numbness in the left hand and right leg, andtemporomandibular joint disorder (TMJ) of the right jaw. The record a!Bo includes medicaldocumentation to indicate that the applicants spouse was diagnosed with two lumps in her breast in2012. Although the growths were not cancerous, her condition needs to be monitored withcontinued routine examinations.In addition, counsel contends that the applicants spouse is suffering from psychological hardshipdue to her separation from the applicant. The record indicates that the applicants spouse has ahistory of psychological problems. The evidence in the record shows that, following the car accidentin September 1998, the applicants spouse was diagnosed with depression and post-traumatic stressdisorder. In a letter dated April12, 2011 from the psychiattist who treated the applicants spousewith her psychological problems following the car accident, the psychiatrist states that theapplicants spouse began seeing the doctor again in February 2011 for depression, and thepsychiatrist prescribed Zoloft for her depression and insonmia. The record further includes apsychological evaluation performed by a licensed psychologist, in which the applicants spouse isdiagnosed with Major Depressive Disorder, Severe, Recurrent. The psychologist states that theapplicants spouse is unable to handle her family responsibilities without the assistance of theapplicant.The record establishes that if the waiver application were denied, the applicants spouse wouldexperience financial, medical and emotional hardship, as well as emotional hardship resulting fromher concern over her ability to care for the applicants two children. These hardships, whenconsidered in the aggregate, are beyond the common results of removal and would rise to the level ofextreme hardship if she remained in the United States without the applicant.The record further indicates that the applicants spouse would experience hardship were she were torelocate to Montenegro to be with the applicant. AILA InfoNet Doc. No. 12103060. (Posted 10/30/12)
  6. 6. The record indicates that the applicants spouse has resided in the United States since 1998, and that both her parents are lawful permanent residents residing in the United States. The record includes medical documentation for both parents. The father of the applicants spouse is disabled as a result of a car accident in 2006, and suffers from post-traumatic memory difficulty, post-concussion syndrome, post-traumatic stress disorder/mood disorder, post-traumatic neck and low back pain, periodic dizziness, headaches, and left hip pain. A doctors statement on the record states that the applicants spouse is the main care giver for her father. The record also includes medical documentation which indicates that the mother of the applicants spouse is suffering from fibromyalgia, depression, hypertension, and hyperlipidemia, and that she requires help and assistance from the applicants spouse. The record indicates that the applicants spouse has two brothers in the United States, and includes evidence that .the older brother is· cutTently incarcerated, and the younger brother entered college as a freshman in the Fall of 2011, thus neither brother is able to assist with providing care for the parents of the applicants spouse in the United States.Counsel states that although the applicants spouse was born in Montenegro, the applicants spouseis ethnic Albanian, she speaks the Albanian language, and does not speak the Serbo-Croatianlanguhge, as do the majority of the residents of Montenegro. Counsel submitted evidence to indicatethat only 5.3% of the population of Montenegro speak Albanian, and this would limit chances for theapplicants spouse to find employment in Montenegro.Counsel fmther notes that the applicants spouse and their two children tried to live in Montenegrowith the applicant during the summer months of 2011. Counsel states that the applicants childrenboth became ill and had to undergo medical treatment for acute entercolitis Infections, and submittedmedical documentation to verify the condition of the applicants children. Counsel also submitsevidence that the applicant was unable to find employment in Montenegro to support his wife andchildren at the time of their stay in Montenegro.Based on the evidence on the record, the applicant has established that his spouse would sufferhardship beyond the common results of removal if she were to relocate to Montenegro to reside withthe applicant.The AAO thus finds that the situation presented in this application rises to the level of extremehardship. However, the grant or denial of the waiver does not turn only on the issue of the meaningof "extreme hardship." It also hinges on ilie discretion of the Secretary and pursuant to such terms,conditions and procedures as she may by regulations prescribe. Jn discretionary matters, ilie alienbears the burden of proving eligibility in terms of equities in the United States which are notoutweighed by adverse factors. See Matter ofT-S-Y-, 7 I&N Dec. 582 (BIA 1957). Jn evaluating whether ... relief is wananted in the exercise of discretion, the factors adverse to the alien include the nature and underlying circumstances of the exclusion ground at issue, the presence of additional significant violations of this countrys immigration laws, the existence of a criminal record, and if so, its nature and seriousness, and the presence of other evidence indicative of AILA InfoNet Doc. No. 12103060. (Posted 10/30/12)
  7. 7. the aliens bad character or undesirability as a permanent resident of this country. The favorable considerations include family ties in the United States, residence of long duration in this country particularly where alien began residency at a young age), evidence of hardship to the alien and his family if he is excluded and deported, service in this countrys Armed Forces, a history of stable employment, the existence of property or business ties, evidence of value or service in the community, evidence of genuine rehabilitation if a criminal record exists, and other evidence attesting to the aliens good character (e.g., affidavits from family, friends and responsible community representatives).See Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996). The AAO must then, "balancethe adverse factors evidencing an aliens undesirability as a permanent resident with the social andhumane considerations presented on the aliens behalf to determine whether the grant of relief in theexercise of discretion appears to be in the best interests of the country. " !d. at 300. (Citationsomitted).The favorable factors in this matter are the extreme hardships the applicants U.S. citizen spouse andU.S. citizen children would face if the applicant were to reside in Montenegro, regardless of whetherthey accompanied the applicant or remained in the United States; the fact that the applicant residedin the United States for almost 10 years; and letters of reference written on behalf of the applicant.The unfavorable factors in this matter are the applicants attempt to procure admission to the UnitedStates through fraud or misrepresentation and the applicants unlawful presence while in the UnitedStates.The immigration violations committed by the applicant are serious in nature and carmot becondoned. Nonetheless, the AAO finds that the applicant has established that the favorable factorsin her application outweigh the unfavorable factors. Therefore, a favorable exercise of theSecretarys discretion is wananted.In proceedings for application for waiver of grounds of inadmissibility, the burden of establishingthat the application merits approval remains entirely with the applicant. Section 291 of the Act, 8U.S.C. § 1361. The applicant has sustained that burden. Accordingly, this appeal will be sustainedand the application approved.ORDER: The appeal is sustained. The waiver application is approved. AILA InfoNet Doc. No. 12103060. (Posted 10/30/12)
  8. 8. U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090 U.S. Citizenship and Immigration Services Office: VIENNA, AUSTR1A FILE: INRE: Applicant: APPLICATION: Application for Pennission to Reapply for Admission into the United States after Deportation or Removal nnder section 212(a)(9)(A)(iii) ofthe Immigration and Nationality Act, 8 U.S. C. § 1182(a)(9)(A)(iii) ON BEHALF OF APPLICANT:MARSHAL E. HYMAN, ESQ.MARSHAL E. HYMAN & ASSOCIATES, P.C.SHEFFillLD OFFICE P AR1( PLAZA3250 WEST BIG BEAVER, SUIITE 529TROY, MI 48084INSTRUCTIONS:Enclosed please find the decision ofthe Administrative Appeals Office in your case. All of the documentsrelated to this matter have been returned to the office that originally decided your case. Please be advised thatany further inquiry that you might have concerning your case must be made to that office.Thank you,t~/PerryRhewChief, Administrative Appeals Office AILA InfoNet Doc. No. 12103060. (Posted 10/30/12)
  9. 9. DISCUSSION: The Field Office Director, Vienna, Austria, denied the Application for Permission to Reapply for Admission into the United States after Deportation or Removal (Form I-212) and it is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained.The record reflects that the applicant, a native and citizen of Montenegro, entered the United Stateso n - 2002 using a passport which belonged to another person. The applicant applied forasylum in the United States, but the applicants asylum application was subseq~ and anappeal to the U.S. Court of Appeals for the Second Circuit was dismissed o n - , 2006.The applicant was subsequently removed from the United States o n - 2011. The applicant isinadmissible under section 212(a)(9)(A)(ii) of the Immigration and Nationality Act (the Act), 8 U.S.C.§ l182(a)(9)(A)(ii). He now seeks permission to reapply for admission into the United States undersection 212(a)(9)(A)(iii) of the Act, 8 U.S.C. § 1182(a)(9)(A)(iii), in order to reside in the UnitedStates with his U.S. citizen spouse and children.The applicant was also found to be inadmissible to the United States pursuant to section 212(a)(6)(C)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(a)(6)(C)(i), forseeking to procure admission to the United States through fraud or misrepresentation, by using apassport which belonged to another person. In addition, the applicant was found to be inadmissibleto the United States pursuant to section 212(a)(9)(B)(i)(II) of the Act, ~ 1182(a)(9)(~for having been unlawfully present in the United States f r o m - -2006 nntil - · 2011, a period of more than one year. The applicant sought a waiver ofinadmissibility (Form I-601) under sections 212(i) and 212(a)(9)(B)(v) of the Act in order to reside inthe United States with his U.S. citizen spouse. The field office director concluded that the applicantfailed to establish that extreme hardship would be imposed on a qualifying relative and denied theForm l-601 accordingly. See Decision of the Field Office Direct01; dated September 30, 2011. Inthe same decision, the field officer director denied the application for permission to reapply foradmission under section 212(a)(9)(A)(iii) of the Act based on the denial of the Form I-601.The AAO notes that the field office director denied the applicants Application for Permission toReapply for Admission into the United States After Deportation or Removal (Form I-212) solelybased on the denial of the Application for Waiver of Admissibility (Form I-601). As the AAO has,in a separate decision, now found the applicant eligible for a waiver of inadmissibility under section212(a)(9)(B)(v) of the Act, it will withdraw the field office directors decision on the Form I-212 andrender a new decision.Section 212( a)(9)(A) of the Act states:Aliens previously removed.- (A) Certain aliens previously removed.- (i) Arriving aliens.-Any alien who has been ordered removed under section 235(b)(1) or at the end of proceedings under section 240 initiated npon the aliens arrival in the United States and who again seeks admission within 5 AILA InfoNet Doc. No. 12103060. (Posted 10/30/12)
  10. 10. years of the date of such removal (or within 20 years in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible. (ii) Other aliens.- Any alien not described in clause (i) who- (I) has been ordered removed under section 240 or any other provision of law, or (II) departed the United States while an order of removal was outstanding, and seeks admission within 10 years of the date of such aliens departure or removal (or within 20 years of such date in the case of a second or subsequent removal or at any time in the case of an aliens convicted of an aggravated felony) is inadmissible. (iii) Exception.- Clauses (i) and (ii) shall not apply to an alien seeking admission within a period if, prior to the date of the aliens reembarkation at a place outside the United States or attempt to be admitted from foreign continuous territory, the Attorney General [now, Secretary, Department of Homeland Security] has consented to the aliens reapplying for admission.O n - 2011, the applicant was removed from the United States. As such, he is inadmissibleunder section 212(a)(9)(A) of the Act and must request permission to reapply for admission.A grant of permission to reapply for admission is a discretionary decision based on the weighing ofnegative and positive factors. In a separate decision, the AAO has found that the applicant warrantsa favorable exercise of discretion related to the adjudication of the Form I-601. For the reasonsstated in that finding, the AAO finds that the applicants Form I-212 should also be granted as amatter of discretion.ORDER: The appeal is sustained.The biggest problem with "balancing tests" is that poorly trained and inexperiencedadjudicators apply them too rigidly. They tend to lack sound judgement which is gainedthrough experience, past and current. AILA InfoNet Doc. No. 12103060. (Posted 10/30/12)
  11. 11. Suggestions for a Fact Sheet on the USCIS Form I-601 Waiver’s “Extreme Hardship” Eligibility Criteria By Joseph P. Whalen (January 10, 2012)I feel that applicants and their attorneys (or BIA accredited representatives) need a summary ofthe factors used in making the Discretionary Decision as to whether or not to grant this waiver.Practitioners or Pro Se applicants would be able to submit better quality application packages ifthey were provided with better tools to use in preparing them.There are existing administrative and judicial precedents that spell out the factors. AAO hasrecently put forth some better non-precedent decisions from which USCIS can derive the currentproper approach to adjudications.A series of links to controlling cases would be useful not only to practitioners but also toadjudicators. Here are just some administrative cases (listed here by the Interim DecisionNumbers), to review: RE: Extreme Hardship: #2541, 2669, 2679, 2907, 2973, 3225, 3230, 3236, 3272, 3280, 3281, 3298, 3446; and RE: Factors Considered: #2767, 2770, 2771, 3380.Administrative Decisions under the Immigration and Nationality Laws of the United States [Citeas: Matter of Name, “vol. number” I&N Dec. “Page Number” (issuing authority YEAR)].Previously, before computers made publishing so easy, decisions were first issued as InterimDecisions and later placed in Bound Volumes. Now they are more easily and readily issueddirectly as I&N Decisions found at: http://www.justice.gov/eoir/vll/intdec/lib_indecitnet.htmlID #3380 Matter of Cervantes, 22 I&N Dec. 560 (BIA 1999) *(1) The recently amended provisions of section 212(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(i) (Supp. II 1996), which require that an alien establish extreme hardship to his or her United States citizen or permanent resident alien spouse or parent in order to qualify for a waiver of inadmissibility, are applicable to pending cases. Matter of Soriano, 21 I&N Dec. 516 (BIA 1996; A.G. 1997), followed. (2) The factors to be used in determining whether an alien has established extreme hardship pursuant to section 212(i) of the Act include, but are not limited to, the following:  the presence of lawful permanent resident or United States citizen family ties to this country;  the qualifying relative’s family ties outside the United States;  the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to such countries;  the financial impact* of departure from this country; and,
  12. 12.  finally, significant conditions of health, particularly when tied to the unavailability of suitable medical care in the country to which the qualifying relative would relocate. * The financial impact to the qualifying USC and the USC’s “other” family members in so far as it impacts the qualifying USC, counts but the impact on the inadmissible alien relative does not count here. (3) The underlying fraud or misrepresentation for which an alien seeks a waiver of inadmissibility under section 212(i) of the Act may be considered as an adverse factor in adjudicating the waiver application in the exercise of discretion. Matter of Tijam, 22 I&N Dec. 408 (BIA 1998) Interim Decision 3372 (BIA 1998), followed. This single decision is but one to review. Do not stop there. CLARIFICATION of the ROLES of the QUALIFYING INDIVIDUALS for Purposes of the PROVISIONAL I-601 WAIVERS for Unlawful Presence (ULP) I-601 Waiver Applicant Suffering USC RelativeMust be the I-130 BENEFICIARY, and is .... Might be but does not have to be I130 PETITIONER, and is .....LIMITED TO IRs of USCs by the intended Statutorily LIMITED to SPOUSE or PARENTnew Rule. of the Waiver APPLICANT who is also I-130This is consistent with Congressional Intent. BENEFICIARY. The Executive Branch Department or Agency is obligated to abide by the clearly expressed: Congressionally Mandated Intents & Purposes of the Statutes it has enacted into Law.DHS via USCIS for the I-601 waiver and ICE Congress meant to make it difficult on aliensfor the resources needed for Removal must who disregard the sovereignty of the U.S. byabide by Congress’ Intent as demanded by the blatantly ignoring this nation’s borders.statutes. DHS must find a practical approach toimplementation and procedures.EWIs are singled-out and LPR relatives are excluded for specific reasons. Many legalized LPRsstarted out as EWIs and have made illegal entry into a family tradition. That is why thequalifying relatives under the statute excludes USC children as a basis for the ULP waiver. Thestatutory limitation as to which U.S. based relative’s hardship counts has a political purpose.» It precludes proverbial “Anchor Babies” as a means to get an immigrant visa (LPR status).» Limiting the waiver to immediate relatives of USCs is in keeping with Congressional Intent.The I-601 APPLICANT must be an IR. The “qualifying USC relative who would suffer extremehardship” is statutorily identified and must be either the spouse or parent of the I-601APPLICANT who is also the I-130 BENEFICIARY.The suffering USC might be the I-130 PETITIONER but is not required to be the actual I-130PETITIONER.Lastly, the NOI and Q&As are very clear about NTAs already. The only ambiguity is on the partof the inadequate practitioners. NTAs will be issued in accordance with DHS priorities alreadyidentified in exercising Prosecutorial Discretion as have already been outlined and publicized.
  13. 13. 19902 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules DEPARTMENT OF HOMELAND policy, as well as reopen the provisional proper handling, please reference DHS SECURITY waiver approval and deny the waiver Docket No. USCIS–2012–0003 on your request. USCIS anticipates that the correspondence. This mailing address 8 CFR Parts 103 and 212 proposed changes will significantly may be used for paper, disk, or CD– [CIS No. 2519–2011; DHS Docket No. reduce the length of time U.S. citizens ROM submissions. USCIS–2012–0003] are separated from their immediate • Hand Delivery/Courier: Sunday relatives who are required to remain Aigbe, Chief, Regulatory Products RIN 1615–AB99 outside of the United States for Division, Office of the Executive immigrant visa processing and during Secretariat, U.S. Citizenship and Provisional Unlawful Presence Waivers adjudication of a waiver of Immigration Services, Department of of Inadmissibility for Certain inadmissibility for the unlawful Homeland Security, 20 Massachusetts Immediate Relatives presence. USCIS also believes that the Avenue NW., Washington, DC 20529– AGENCY: Department of Homeland proposed process, which reduces the 2020. Contact Telephone Number is Security, U.S. Citizenship and degree of interchange between the DOS (202) 272–8377. Immigration Services. and USCIS, will create efficiencies for FOR FURTHER INFORMATION CONTACT: both the U.S. Government and most Roselyn Brown-Frei, Office of Policy ACTION: Proposed rule. applicants. In addition to codifying the and Strategy, Residence and SUMMARY: On January 9, 2012, U.S. new process, USCIS proposes Naturalization Division, U.S. Citizenship and Immigration Services amendments clarifying other Citizenship and Immigration Services, (USCIS) announced its intention to regulations. Department of Homeland Security, 20 change its current process for filing and Even after USCIS begins accepting Massachusetts Avenue NW., adjudication of certain applications for provisional unlawful presence waiver Washington, DC 20529–2099, waivers of inadmissibility filed in applications, the filing or approval of a Telephone (202) 272–1470 (this is not a connection with an immediate relative provisional unlawful presence waiver toll free number). immigrant visa application. USCIS now application will not: confer any legal status, protect against the accrual of Table of Contents: proposes to amend its regulations to allow certain immediate relatives of additional unlawful presence, authorize I. Public Participation U.S. citizens who are physically present an alien to enter the United States II. Executive Summary without securing a visa or other III. Background in the United States to request A. Legal Authority provisional unlawful presence waivers appropriate entry document, convey any B. Grounds of Inadmissibility under the Immigration and Nationality interim benefits (e.g., employment C. Unlawful Presence Act of 1952, as amended (INA or Act), authorization, parole, or advance D. Current Waiver Process prior to departing from the United parole), or protect an alien from being E. Problems With the Current States for consular processing of their placed in removal proceedings or Inadmissibility Waiver Process immigrant visa applications. Currently, removed from the United States. F. Notice of Intent such aliens must depart from the United Do not send an application requesting IV. Proposed Changes a provisional waiver under the A. Overview of Proposed Provisional States and request waivers of Unlawful Presence Waiver Process inadmissibility during the overseas procedures under consideration in this B. Rationale for Proposed Change immigrant visa process, often causing proposed rule. Any provisional waiver C. Aliens Eligible To Seek a Provisional U.S. citizens to be separated for application filed before the rule Unlawful Presence Waiver extended periods from their immediate becomes final and effective will be D. Aliens Ineligible for a Provisional relatives who are otherwise eligible for rejected and the application package Unlawful Presence Waiver an immigrant visa and admission for returned to the applicant, including any E. Filing, Adjudication, and Decisions lawful permanent residence. Under the fees. USCIS will begin accepting F. Motions To Reopen or Reconsider or provisional waiver applications only Appeals of Denied Provisional Unlawful proposal, USCIS would grant a after a final rule is issued and the Presence Waiver Applications provisional unlawful presence waiver G. Terms and Conditions of the Provisional that would become fully effective upon procedural change becomes effective. Unlawful Presence Waiver the alien’s departure from the United DATES: Written comments should be H. Validity of the Provisional Unlawful States and the U.S. Department of State submitted on or before June 1, 2012. Presence Waiver (DOS) consular officer’s determination ADDRESSES: You may submit comments, I. Limitations of a Provisional Unlawful at the time of the immigrant visa identified by DHS Docket No. USCIS– Presence Waiver interview that, in light of the approved 2012–0003, by one of the following J. Clarification of 8 CFR 212.7(a)(1) and provisional unlawful presence waiver methods: (a)(4) V. Public Input and other evidence of record, the alien • Federal eRulemaking Portal: http:// VI. Statutory and Regulatory Requirements is otherwise admissible to the United www.regulations.gov. Follow the A. Unfunded Mandates Reform Act of 1995 States and eligible to receive an instructions for submitting comments. B. Small Business Regulatory Enforcement immigrant visa. USCIS does not • Email: You may submit comments Fairness Act of 1996 envision issuing Notices to Appear directly to USCIS by email at C. Executive Orders 12866 (Regulatory (NTA) to initiate removal proceedings uscisfrcomment@dhs.gov. Include DHS Planning and Review) and 13563TKELLEY on DSK3SPTVN1PROD with PROPOSALS5 against aliens whose provisional waiver Docket No. USCIS–2012–0003 in the (Improving Regulation and Regulatory applications have been approved. subject line of the message. Review) However, if USCIS, for example, • Mail: Sunday Aigbe, Chief, D. Executive Order 13132: This proposed rule will not have substantial direct discovers acts, omissions, or post- Regulatory Products Division, Office of effects on the States, on the relationship approval activity that would meet the the Executive Secretariat, U.S. between the National Government and criteria for NTA issuance or determines Citizenship and Immigration Services, the States, or on the distribution of that the provisional waiver was granted Department of Homeland Security, 20 power and responsibilities among the in error, USCIS may issue an NTA, Massachusetts Avenue NW., various levels of government. Therefore, consistent with USCIS’s NTA issuance Washington, DC 20529–2020. To ensure in accordance with section 6 of VerDate Mar<15>2010 19:28 Mar 30, 2012 Jkt 226001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:FRFM02APP5.SGM 02APP5
  14. 14. Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 19903 Executive Order 13132, it is determined inadmissibility grounds under INA B. Summary of the Major Provisions of that this rule does not have sufficient section 212(a)(9)(B)(i). As a result, many the Regulatory Action in Question federalism implications to warrant the immediate relatives who may qualify for preparation of a federalism summary DHS proposes to allow certain an immigrant visa are reluctant to immediate relatives to file provisional impact statement. E. Executive Order 12988 Civil Justice proceed abroad to seek an immigrant waiver applications before they depart Reform visa. from the United States for their F. Paperwork Reduction Act 2. Proposed Provisional Unlawful immigrant visa interviews. G. Regulatory Flexibility Act Waiver Process 1. Eligibility for the Provisional Waiver SUPPLEMENTARY INFORMATION: DHS proposes to change its current Individuals may request a provisional I. Public Participation process for the filing and adjudication of waiver if: All interested parties are invited to certain waivers of inadmissibility for i. Their sole ground of inadmissibility participate in this rulemaking by qualifying immediate relatives of U.S. at the time of the immigrant visa submitting written data, views, or citizens, who are physically present in interview with DOS would be unlawful arguments on all aspects of this the United States, but must proceed presence for more than 180 days; proposed rule. Comments that will abroad to obtain their immigrant visas. ii. They are the beneficiary of an provide the most assistance to DHS in DHS proposes to allow qualifying approved Form I–130, Petition for Alien developing these procedures will immediate relatives to apply for a Relative or Form I–360, Petition for reference a specific portion of this rule, provisional waiver of their Amerasian, Widow(er), and Special explain the reason for any inadmissibility for unlawful presence Immigrant (classifying them as recommended change, and include data, while they are still in the United States immediate relatives), and seek an information, or authority that supports and before they leave to attend their immigrant visa from DOS based on this the recommended change. immigrant visa interview abroad. approved petition; Instructions: All submissions must Approving an application for a iii. They are physically present in the include the agency name and DHS provisional unlawful presence waiver United States when they file the Docket No. USCIS–2012–0003. All prior to the immediate relative’s application for the provisional unlawful comments received will be posted immigrant visa interview will allow the presence waiver; without change to http:// DOS consular officer to issue the iv. They appear for biometrics capture www.regulations.gov, including any immigrant visa without delay if there in the United States; personal information provided. are no other grounds of inadmissibility v. They establish that a U.S. citizen Docket: For access to the docket to and if the immediate relative otherwise spouse or parent would experience read background documents or is eligible to be issued an immigrant extreme hardship if the individual is comments received, go to http:// visa. The immediate relative would not denied admission to the United States www.regulations.gov. have to wait abroad during the period as an LPR; when USCIS adjudicates his or her vi. They warrant a favorable exercise II. Executive Summary waiver request, but rather could remain of discretion; and A. Purpose of the Regulatory Action in the United States with his or her U.S. vii. They are 17 years or older at the citizen spouse or parent during that time of filing an application for a 1. Need for the Regulatory Action period. As a result, U.S. citizens’ provisional unlawful presence waiver. Currently, certain spouses, children separation from their immediate and parents of U.S. citizens (‘‘immediate relatives would be significantly 2. Ineligibility for the Provisional relatives’’) who are in the United States reduced. In addition, given the greater Unlawful Presence Waiver are not eligible to apply for lawful certainty that will result from this Individuals are ineligible for a permanent resident status (LPR) without process, U.S. citizens and their family provisional waiver if: leaving the United States because they members would also be able to better i. They are outside the United States; entered the country unlawfully. These plan for the immediate relative’s ii. They do not have an approved immediate relatives must travel abroad departure and eventual return to the Form I–130 or Form I–360 petition, to obtain an immigrant visa from the United States. classifying them as an immediate Department of State (DOS) and, in many relative; cases, also must request from the 3. Legal Authority iii. They have not paid the immigrant Department of Homeland Security The Secretary of Homeland Security’s visa processing fee to DOS and are not (DHS) a waiver of the inadmissibility authority for this proposed procedural actively pursuing the immigrant visa that resulted from their unlawful change can be found in the Homeland process based on the approved petition; presence while they remain outside of Security Act of 2002, Public Law 107– iv. They have already been scheduled the United States, separated from their 296, section 102, 116 Stat. 2135, for an immigrant visa interview; U.S. citizen spouses, parents, or 6 U.S.C. 112, and section 103 of the v. They are under the age of 17 years children. In some cases, waiver Immigration and Nationality Act (INA when the provisional unlawful presence application processing can take well or the Act), 8 U.S.C. 1103, which give waiver is filed; over a year, and the prolonged the Secretary the authority to administer vi. They are in removal proceedings separation from immediate relatives can and enforce the immigration and that have not been terminated orTKELLEY on DSK3SPTVN1PROD with PROPOSALS5 cause many U.S. citizens to experience nationality laws. The Secretary’s dismissed; extreme humanitarian and financial discretionary authority to waive the vii. They have not had the charging hardships. In addition, the action ground of inadmissibility for unlawful document (Notice to Appear) to initiate required for these immediate relatives to presence can be found in INA section removal proceedings cancelled; obtain LPR status in the United States— 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v). viii. They are in removal proceedings departure from the United States to The regulation governing certain that have been administratively closed apply for an immigrant visa at a DOS inadmissibility waivers is 8 CFR 212.7, but not subsequently reopened for the consulate abroad—is the very action and the fee schedule for waiver requests issuance of a final voluntary departure that triggers the unlawful presence is found at 8 CFR 103.7. order; VerDate Mar<15>2010 19:28 Mar 30, 2012 Jkt 226001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:FRFM02APP5.SGM 02APP5
  15. 15. 19904 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules ix. They are subject to a final order of otherwise eligible for the immigrant visa applicants submit biometric removal; by DOS. The provisional waiver would information. Included in this cost x. They have a pending application then become a permanent waiver, estimate is the cost of collecting for adjustment of status to that of an waiving the inadmissibility based on the biometrics, which we estimate will LPR in the United States; period of unlawful presence noted in range from approximately $28 million to xi. USCIS has reason to believe they the waiver request. approximately $42.5 million at seven would be subject to one or more other percent over ten years. In addition, as grounds of inadmissibility; 5. Revocation this rule significantly streamlines the xii. They fail to establish extreme An approved provisional waiver is current process, DHS expects that hardship or do not merit a favorable automatically revoked if DOS denies the additional applicants will apply for the exercise of discretion; or immigrant visa application or if the provisional unlawful presence waiver xiii. They previously filed a underlying immigrant visa petition compared to the current waiver process. provisional unlawful presence waiver approval is revoked, withdrawn, or To the extent that this rule induces new application. otherwise rendered invalid. An demand for immediate relative visas, approved waiver also is revoked if the additional forms such as the Form I– 3. Adjudication and Decision alien is inadmissible on grounds other 130, Petition for Alien Relative, will be USCIS would adjudicate the than for unlawful presence under INA filed compared to the pre-rule baseline. provisional unlawful presence waiver section 212(a)(9)(B)(i), 8 U.S.C. These additional forms will involve fees application and issue requests for 1182(a)(9)(B)(i), if the alien is otherwise being paid by applicants to the Federal evidence. USCIS would not issue ineligible for an immigrant visa, or if Government for form processing and Notices of Intent to Deny (NOIDs). If DOS terminates the alien’s immigrant additional opportunity costs of time USCIS approves the provisional waiver visa registration under INA section being incurred by applicants to provide application, USCIS would notify the 203(g), 8 U.S.C. 1153(g). the information required by the forms. applicant and DOS of the approval. C. Costs and Benefits The cost estimate for this rule also Denials cannot be appealed and aliens This proposed rule is expected to includes the impact of this induced will not have the right to seek motions result in a reduction in the time that demand, which we estimate will range to reopen or reconsider USCIS’s U.S. citizens are separated from their from approximately $72.6 million to decision. Aliens whose provisional alien immediate relatives, thus reducing approximately $261.3 million at seven waiver requests are denied, however, the financial and emotional hardship for percent over ten years. may still apply for a waiver through the current I–601 waiver process. USCIS these families. In addition, the Federal Estimates for the costs of the proposed also reserves the authority to reopen and Government would achieve increased rule were developed assuming that reconsider on its own motion an efficiencies in processing immigrant current demand is constrained because approval or a denial of a provisional visas for individuals subject to the of concerns that families may endure waiver application at any time. inadmissibility bar. lengthy separations under the current DHS estimates the discounted total system. Because of uncertainties as to 4. Effect of Waiver ten-year cost of this rule would range the degree of the current constraint of An approved provisional waiver from approximately $100.6 million to demand, DHS used a range of constraint would not become effective until the approximately $303.8 million at a seven levels with corresponding increases in alien departs from the United States, percent discount rate. Compared with demand to estimate the costs. The costs appears for his or her immigrant visa the current waiver process, this rule for each increase in demand are interview and is found admissible and proposes that the provisional waiver summarized below. Estimated increase in costs with an increase in demand of: 25% 50% 75% 90% Cost of Biometrics Collection and Processing 10 year Costs Undiscounted ................................................... $40,353,130 $48,423,756 $56,494,382 $61,336,758 Total 10 year Costs Discounted at 7% ................................... 27,967,676 33,561,211 39,154,746 42,510,867 Total 10 year Costs Discounted at 3% ................................... 34,221,714 41,066,057 47,910,400 52,017,006 Costs of Applications for the Additional (Induced) Demand for Immigrant Visas 10 year Costs Undiscounted ................................................... $104,738,108 $209,476,215 $314,214,323 $377,057,188 Total 10 year Costs Discounted at 7% ................................... 72,591,182 145,182,365 217,773,547 261,328,257 Total 10 year Costs Discounted at 3% ................................... 88,823,781 177,647,563 266,471,344 319,765,613 Total Costs to New Applicants 10 year Costs Undiscounted ................................................... $145,091,238 $257,899,971 $370,708,705 $438,393,945 Total 10 year Costs Discounted at 7% ................................... 100,558,858 178,743,575 256,928,293 303,839,123TKELLEY on DSK3SPTVN1PROD with PROPOSALS5 Total 10 year Costs Discounted at 3% ................................... 123,045,496 218,713,620 314,381,745 371,782,619 III. Background Stat. 2135, 6 U.S.C. 112, and section 103 naturalization laws. The Secretary of the INA, 8 U.S.C. 1103, charge the would effectuate these proposed A. Legal Authority Secretary of Homeland Security changes under the broad authority to The Homeland Security Act of 2002, (Secretary) with administration and administer the Department of Homeland Public Law 107–296, section 102, 116 enforcement of the immigration and Security and the authorities provided VerDate Mar<15>2010 19:28 Mar 30, 2012 Jkt 226001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:FRFM02APP5.SGM 02APP5
  16. 16. Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 19905 under the Homeland Security Act of accrue unlawful presence while they are If USCIS approves the petition for the 2002, the immigration and nationality under 18 years of age. See INA section alien relative, many aliens are eligible to laws, and other delegated authority. 212(a)(9)(B)(iii)(I), 8 U.S.C. apply for adjustment of status to that of 1182(a)(9)(B)(iii)(I). Similarly, an LPR under INA section 245, 8 U.S.C. B. Grounds of Inadmissibility individuals with pending asylum claims 1255, or other provisions of law. U.S. immigration laws provide generally are not considered to be Through adjustment of status, the alien mechanisms for U.S. citizens to bring accruing unlawful presence while their can obtain LPR status in the United their families into the United States for applications are pending. See INA States without having to depart. There family reunification, including, in some section 212(a)(9)(B)(iii)(II), 8 U.S.C. are various reasons why an alien may be cases, their immediate relatives who 1182(a)(9)(B)(iii)(II). Battered women statutorily ineligible for adjustment of have previously violated the and children and victims of a severe status. For example, the alien would be immigration laws. At the same time, form of trafficking in persons are not ineligible if he or she entered the United however, the immigration laws subject to the INA section 212(a)(9)(B)(i) States without inspection and prescribe acts, conditions, and conduct ground of inadmissibility at all if they admission or parole. Also, there are that bar aliens, including immediate demonstrate that there was a substantial some individuals who are eligible to relatives of U.S. citizens, from being connection between their victimization adjust status in the United States but admitted to the United States or and their unlawful presence. See INA choose to proceed through consular obtaining an immigrant visa. Such acts, section 212(a)(9)(B)(iii)(IV)–(V), 8 U.S.C. processing abroad. An alien who is conditions, and conduct include certain 1182(a)(9)(B)(iii)(IV)–(V). seeking LPR status based on an criminal offenses, public health The Secretary has the discretion to concerns, fraud and misrepresentation, approved Form I–130 but who is waive the 3-year and 10-year unlawful ineligible for adjustment of status must failure to possess proper documents, presence bars if the alien is seeking accrual of more than 180 days of obtain an immigrant visa from a admission as an immigrant and if the consular officer abroad before the alien unlawful presence in the United States, alien demonstrates that the denial of his and terrorism. The grounds of can return to the United States and be or her admission to the United States admitted as an immigrant. inadmissibility are set forth in section would cause ‘‘extreme hardship’’ to the 212(a) of the INA, 8 U.S.C. 1182(a). The alien’s U.S. citizen or LPR spouse or If USCIS determines that the alien Secretary has the discretion to waive parent. See INA section 212(a)(9)(B)(v), qualifies as an immediate relative of a certain inadmissibility grounds, if the 8 U.S.C. 1182(a)(9)(B)(v). Because the U.S. citizen, and the alien will be alien files a request and if he or she granting of a waiver is discretionary, the pursuing consular processing of an meets the relevant statutory and alien also must establish that he or she immigrant visa application abroad, regulatory requirements and agency merits a favorable exercise of discretion. USCIS forwards the approved petition policy. If the Secretary grants the Aliens who are subject to the unlawful to the DOS National Visa Center (NVC). waiver, the waived ground will no presence bars must apply for and be At the NVC, DOS begins to process the longer bar the alien’s admission, immigrant visa application and requests granted a waiver in order to receive an readmission, or immigrant visa that the applicant submit the fee and the immigrant visa and be admitted to the eligibility. documents required for visa processing. United States. C. Unlawful Presence Upon submission of all necessary D. Current Waiver Process documents by the alien, DOS schedules The inadmissibility grounds based on the alien for an immigrant visa If a U.S. citizen wishes to sponsor an accrual of unlawful presence in the interview with a DOS consular officer at alien spouse, parent, or child United States can be found in INA a U.S. Embassy or consulate abroad. (unmarried and under the age of 21)— section 212(a)(9)(B)(i), 8 U.S.C. During the immigrant visa interview, known as ‘‘immediate relatives’’ in the 1182(a)(9)(B)(i). Under part (I) of this the consular officer determines whether immigration laws, see INA section provision, an alien who was unlawfully the alien is admissible to the United 201(b)(2)(A)(i), 8 U.S.C. present in the United States for more States and eligible for an immigrant 1151(b)(2)(A)(i)—to immigrate to the than 180 days but less than one year, visa. If the consular officer finds that the United States as an LPR, he or she must and who then departs voluntarily from alien is subject to any ground of first file a Petition for Alien Relative, the United States before the inadmissibility, including the 3-year or Form I–130, with USCIS, with commencement of removal proceedings, 10-year unlawful presence bars, the appropriate fees and in accordance with will be inadmissible for 3 years from the consular officer informs the alien that USCIS form instructions.1 See INA date of departure. Under part (II) of the he or she may file an Application for section 204(a), 8 U.S.C. 1154(a); 8 CFR same provision, an alien who was Waiver of Grounds of Inadmissibility, 204.1 and 8 CFR 204.2. USCIS unlawfully present in the United States Form I–601 (waiver application), with determines if an alien qualifies for for one year or more and then departs USCIS or, where USCIS is not present, classification as an immediate relative the United States before, during, or after with DOS, if a waiver is authorized for of the U.S. citizen.2 Id. removal proceedings, will be the relevant ground of inadmissibility. If inadmissible for 10 years from the date 1 U.S. citizens also may sponsor unmarried sons the waiver application is filed with of the departure. and daughters (21 years of age and older) and DOS, DOS forwards it to USCIS for These 3-year and 10-year unlawful married sons and daughters, and lawful permanent adjudication.TKELLEY on DSK3SPTVN1PROD with PROPOSALS5 presence bars do not take effect unless residents may sponsor spouses, children and until an alien departs from the (unmarried and under the age of 21), and unmarried sons and daughters (21 years of age and older). See Petition for Amerasian, Widow(er) or Special United States. See, e.g., Matter of INA sections 203(a), 204(a), 8 U.S.C. 1153(a), Immigrant. Additionally, if the U.S. citizen spouse Rodarte-Roman, 23 I. & N. Dec. 905 (BIA 1154(a). Because these relatives would not be is deceased after the Form I–130 has been filed, the 2006). By statute, aliens are not eligible for the provisional waiver process for the I–130 converts automatically to an approved I–360 considered to accrue unlawful presence reasons described in this proposed rule, they are widow/widower petition if the I–130 was approved not included in this discussion. at the time of the U.S. citizen’s death. If the I–130 for purposes of INA section 2 Certain immediate relatives (i.e., widows/ was pending at the time of the U.S. citizen’s death, 212(a)(9)(B)(i) if they fall into certain widowers of U.S. citizen and their minor unmarried the pending I–130 converts automatically to a categories. For example, aliens do not children) can self-petition by filing a Form I–360, pending I–360 widow/widower petition. VerDate Mar<15>2010 19:28 Mar 30, 2012 Jkt 226001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 E:FRFM02APP5.SGM 02APP5

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