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

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  • 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.  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. 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. 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. 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. 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
  • 17. 19906 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules The alien must remain abroad while waivers are intended to address and, if abroad. Individuals filing under the new USCIS adjudicates the waiver the waiver is merited, avoid. process would be subject to a biometrics application. Currently, USCIS The current waiver adjudication collection requirement to assist in adjudicates waiver applications filed process also creates inefficiencies and identifying other possible grounds of abroad at various locations in other costs for the Federal Government. inadmissibility and ensure the integrity countries and within the United States, Overseas adjudication processing times of the process. If USCIS has reason to depending on where the alien applied for waivers vary by location and the believe that, at the time of the visa for his or her immigrant visa. If USCIS number of waiver requests pending at interview, the individual may be approves the waiver, it notifies DOS, any given time. Processing times are inadmissible on grounds of and DOS may issue the immigrant visa affected by the resources, personnel, inadmissibility other than the unlawful if DOS determines that the alien is and space available at USCIS offices presence grounds, USCIS would deny otherwise eligible to receive an abroad and the U.S. Embassy or the application. If USCIS denies the immigrant visa. If the waiver is denied, consulate in a particular location. It is provisional waiver application, USCIS the alien is subject to the unlawful expensive for USCIS to maintain staff will follow the NTA issuance policy in presence bars and must remain outside outside the United States, and space in effect at the time of adjudication to of the United States for 3 or 10 years U.S. Embassies and consulates is determine if it will initiate removal before being able to reapply for an limited. Waiver processing times also proceedings against the applicant.4 immigrant visa. The alien may file an are affected by the need for USCIS and If USCIS approves the provisional appeal of a denied waiver application DOS to transfer cases between the two unlawful presence waiver, the approval with the USCIS Administrative Appeals agencies when adjudicating the would be provisional. It would become Office, or file another waiver immigrant visa application and waiver fully effective only upon the alien’s application in the future. request. These limitations often prolong departure from the United States and a The 3-year and 10-year unlawful the overall waiver adjudication process determination by DOS that the alien is, presence bars do not apply unless and and contribute significantly to the time in light of the approved provisional until the alien departs from the United U.S. citizens and their family members unlawful presence waiver, otherwise States. As noted above, many aliens are separated from their immediate admissible and eligible for an immigrant who would trigger these bars if they relatives. visa. If USCIS denies the provisional depart from the United States are, for F. Notice of Intent unlawful presence waiver, the alien may other reasons, statutorily ineligible to On January 9, 2012, USCIS published apply for a waiver of the 3- or 10-year apply for adjustment of status to that of a notice of intent announcing its intent unlawful presence bar through the an LPR while in the United States. to change the current process for filing current process described above, Consequently, these aliens must depart and adjudication of certain applications following the immigrant visa interview the United States and apply for for waivers of inadmissibility filed in with a DOS consular officer. Given that immigrant visas at a U.S. Embassy or connection with an immediate relative USCIS is establishing these provisional consulate abroad before being able to immigrant visa application.3 The notice waiver procedures purely as a matter of return to the United States as explained the proposed process that agency discretion, USCIS will not, in immigrants. The action required to USCIS was considering and that USCIS the interests of administrative efficiency obtain lawful permanent residence in would further develop, and ultimately and finality, allow for more than one the United States, departure from the finalize, the proposal through the provisional unlawful presence waiver United States in order to apply for an rulemaking process. filing. USCIS also will not permit immigrant visa at a consulate abroad, is On January 10, 2012, USCIS administrative appeals or motions to the very action that triggers the INA conducted a stakeholder engagement to reopen or reconsider the denial of a section 212(a)(9)(B)(i) inadmissibility discuss the notice of intent. USCIS provisional unlawful presence waiver grounds. provided an overview of how the request. See proposed 8 CFR 212.7(e)(3) E. Problems With the Current proposed process changes may affect and (10). USCIS, however, proposes to Inadmissibility Waiver Process filing and adjudication, and USCIS retain its discretionary authority to addressed questions from stakeholders. reopen or reconsider a case on a USCIS Under the current system, the entire More than 900 people participated via motion when warranted. See 8 CFR waiver adjudication process occurs telephone and in person. Topics 103.5(a)(5). USCIS is committed to while the immediate relative remains covered included eligibility, procedures, issuing Requests for Evidence (RFE) in outside of the United States, separated and consequences of an approval or considering applications that it receives from his or her U.S. citizen spouse or denial of a provisional waiver request. from unrepresented individuals or parent. In some cases, the waiver others if their applications are missing processing time can take well over one IV. Proposed Changes critical information needed to year for reasons explained below. As a A. Overview of Proposed Provisional demonstrate extreme hardship. USCIS result, many immediate relatives are Unlawful Presence Waiver Process believes that RFEs will allow the reluctant to proceed abroad to obtain an applicant to address any deficiencies immigrant visa. In addition, the DHS proposes to allow certain and to provide any additional processing delays and extended ‘‘immediate relatives’’ (spouse, parents, information to establish eligibility forTKELLEY on DSK3SPTVN1PROD with PROPOSALS5 absences of immediate relatives can and children (unmarried and under the the provisional waiver. However, cause many U.S. citizens and their age of 21)) of U.S. citizens, as defined families to experience extreme in INA section 201(b)(2)(A)(i), 8 U.S.C. 4 See USCIS Memorandum, Revised Guidance for humanitarian and financial hardships. 1151(b)(2)(A)(i), to apply for a waiver of the Referral of Cases and Issuance of Notices to As such, an immediate relative’s inadmissibility of the unlawful presence Appear (NTAs) in Cases Involving Inadmissible and extended absence from the United bars before leaving the United States to Removable Aliens (Nov. 7, 2011), available at: http://www.uscis.gov/USCIS/Laws/Memoranda/ States can give rise to the sort of attend their immigrant visa interviews Static_Files_Memoranda/ extreme hardships to U.S. citizen family NTA%20PM%20(Approved%20as%20final%2011- members that the unlawful presence 3 See 77 FR 1040 (Jan. 9, 2012). 7-11).pdf. VerDate Mar<15>2010 19:28 Mar 30, 2012 Jkt 226001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 E:FRFM02APP5.SGM 02APP5
  • 18. Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 19907 allowing applicants to file multiple grounds of inadmissibility under INA annual limit on the number of applications would significantly section 212(a)(9), 8 U.S.C. 1182(a)(9). immediate relatives who may be interfere with the interagency An approved provisional unlawful admitted to the United States each year; operations between USCIS and DOS and presence waiver would facilitate consequently, visas for these aliens can substantially delay immigrant visa immigrant visa issuance shortly after the be processed without awaiting processing. first consular interview. DHS believes availability of an immigrant visa that this process change would reduce number. B. Rationale for Proposed Change the overall visa processing time, the USCIS proposes to limit the The 3-year and 10-year unlawful period of separation of the U.S. citizen provisional unlawful presence waiver presence bars do not apply unless the from his or her immediate relative, and process to aliens who would be subject alien departs from the United States. the financial and emotional impact on only to the unlawful presence bars at Accordingly, aliens who have accrued the U.S. citizen and his or her family the time of visa issuance because of the more than 180 days of unlawful due to the immediate relative’s absence unique nature of INA section presence do not trigger the from the United States. It also may 212(a)(9)(B), as described above, and inadmissibility ground unless and until encourage individuals to take because preliminary data collected from they depart. Many of these aliens are not affirmative steps to obtain an immigrant DHS systems shows that approximately eligible to adjust status to that of an LPR visa to become an LPR as reduced 80% of the waiver applications filed while remaining in the United States waiting times abroad would render it an overseas are filed by aliens solely and must depart from the United States efficient, more predictable process, inadmissible under the unlawful to apply for and obtain an immigrant rather than one with unpredictable and presence bars. Accordingly, this visa at a U.S. Embassy or consulate prolonged periods of separation. proposed rule would likely affect a large abroad. Therefore, the action required For USCIS and DOS, the proposed number of U.S. citizens and their from the alien in order to obtain LPR changes would minimize the case families who could be reunited more status—the departure to attend the transfers that are currently part of the quickly with their immediate relatives. immigrant visa interview—is the very waiver process and save both agencies action that triggers the 3-year or 10-year time and resources. If USCIS could Finally, USCIS is further limiting unlawful presence bar. process and adjudicate the provisional eligibility for a provisional unlawful If DHS could approve an application unlawful presence waivers presence waiver only to immediate for a provisional waiver of the unlawful domestically, USCIS could move a large relatives of U.S. citizens who can presence bars prior to the alien’s part of its workload to USCIS Service establish that denial of the waiver immigrant visa interview abroad, the Centers or field offices in the United would result in extreme hardship to consular officer could issue the States with resources that are less their U.S. citizen spouse or parents, as immigrant visa without delay following expensive than overseas staffing provided in INA section 212(a)(9)(B)(v). the interview. The alien would not have resources and that are available and DHS would not modify the extreme to wait abroad while USCIS adjudicates flexible enough to accommodate filing hardship standard. the waiver request. Instead, the alien surges. By adjudicating the provisional USCIS is not extending this could remain in the United States with unlawful presence waiver applications provisional unlawful presence waiver his or her U.S. citizen spouse or parent domestically, USCIS also may be able to process to preference aliens. Preference while USCIS adjudicates his or her better standardize its waiver processing aliens do not qualify as immediate provisional unlawful presence waiver times for all requests for waivers of relatives of U.S. citizens; they include request. U.S. citizens, aliens, and their inadmissibility that are filed by unmarried sons and daughters of U.S. family members also could better plan applicants who process their immigrant citizens (21 years of age or older); for the immediate relative’s departure visas at a U.S. Embassy or consulate. spouses, children, unmarried sons and for the consular interview and eventual Most waivers of inadmissibility filed daughters of LPRs; married sons and return to the United States. The concept overseas are filed by aliens who are daughters of U.S. citizens; and siblings of allowing applicants to apply for a subject to the unlawful presence bars of U.S. citizens. Unlike immediate waiver while still in the United States, only. relatives, the preference categories have in advance of their departure, is not new USCIS has identified immediate annual numerical limitations set by and has been implemented in other relatives of U.S. citizens to participate statute. The processing of visas for these contexts. For example, certain aliens in this streamlined process, in part, aliens depends on the availability of an who previously were ordered removed because the focus on U.S. citizens and immigrant visa number, while or were removed from the United States their immediate relatives is consistent immediate relatives always have visa must obtain the Secretary’s consent to with Congress’ prioritization in the availability. reapply for admission to the United immigration laws of family Additionally, USCIS is not extending States because they are inadmissible reunification.5 Congress did not set an this provisional unlawful presence under INA section 212(a)(9)(A), 8 U.S.C. waiver process to immediate relatives 1182(a)(9)(A). By law, consent to 5 Congress’ emphasis on family reunification has who are basing their claim on extreme reapply must be obtained before the long been reflected in immigration statutes. See, hardship to an LPR spouse or parent. e.g., S. Rep. No. 89–748, at 13 (1965) (Comm. Rep. alien seeks to return to the United for the Immigration Act of 1965, Pub. L. 89–236, 79 For the provisional unlawful presence States. However, such aliens have been Stat. 911) (‘‘Reunification of families is to be the waiver, the qualifying relative must beTKELLEY on DSK3SPTVN1PROD with PROPOSALS5 allowed to request consent to reapply in foremost consideration. The closer the family a U.S. citizen. Preference aliens and advance, while still in the United States relationship the higher the preference. In order that immediate relatives whose qualifying the family unit may be preserved as much as before they depart and trigger possible, parents of adult U.S. citizens, as well as relative for the extreme hardship claim inadmissibility under INA section spouses and children, may enter the United States is an LPR can still apply for a waiver 212(a)(9)(A). Thus, the proposed without numerical limitation.’’) (emphasis added); under the current waiver process, after provisional unlawful waiver process is see also Statement by President George Bush Upon a consular interview abroad. Signing S.358 (Immigration Act of 1990), 1990 consistent with past practice with U.S.C.C.A.N. 6801–1 (Nov. 29, 1990) (‘‘The Act respect to certain pre-departure maintains our Nation’s historic commitment to immigrant visas allocated on the basis of family adjudications that address other family reunification by increasing the number of ties’’). VerDate Mar<15>2010 19:28 Mar 30, 2012 Jkt 226001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 E:FRFM02APP5.SGM 02APP5
  • 19. 19908 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules This approach is consistent with the would become conditional permanent As a general matter, the U.S. citizen Secretary’s authority to determine how residents based on a marriage to a U.S. petitioner and the conditional best to administer the immigration laws citizen for less than two years are also permanent resident must jointly seek to and is within USCIS’s discretion to considered immediate relatives. Such remove the condition within the 90-day determine the most efficient means for aliens are included in the category of period immediately preceding the effectuating the waiver process. This eligible individuals who could seek a second anniversary of the date the alien new process is only a change in filing provisional unlawful presence waiver. obtained conditional permanent procedures (i.e., where an alien can seek See INA section 201(b)(2)(A)(i), 8 U.S.C. residence status. See id. If the U.S. a waiver of inadmissibility); it is not a 1151(b)(2)(A)(i); INA section 204(l), 8 citizen petitioner and the conditional substantive change in how USCIS U.S.C. 1154(l); and INA section 216, 8 permanent resident fail to do so, the determines extreme hardship. Limiting U.S.C. 1186. alien’s conditional permanent resident eligibility for this alternative waiver USCIS has considered the possibility status is terminated automatically, and process to immediate relatives of U.S. that the proposed process may lead to any waiver granted in connection with citizens who can establish extreme an increase in fraudulent family-based the status is automatically void. See id.; hardship to a U.S. citizen spouse or immigrant visa petitions. USCIS is see also 8 CFR 212.7 and 216.4(a)(6). parent is consistent with Congress’ committed to preventing and detecting Furthermore, if USCIS determines that policy choice of focusing on fraud in its immigration benefits the marriage was entered into to evade reunification of U.S. citizen families. programs and to implementing existing the immigration laws, USCIS cannot Focusing on hardship to U.S. citizens in preventive measures provided in the approve future petitions for that alien. the development of this discretionary immigration laws. See INA section 204(c), 8 U.S.C. 1154(c). procedure also is consistent with Fraud detection and prevention are The administrative process for permissible distinctions that may be integral to USCIS’s mission and to its removal of conditions and the USCIS drawn between U.S. citizens and aliens standard operating procedures assessment of whether the marriage was and between classes of aliens in governing adjudications. USCIS’s Fraud entered into to evade the immigration immigration laws and policies, see, e.g., Detection and National Security laws provide strong tools for combating Fiallo v. Bell, 430 U.S. 787, 792 (1977); division (FDNS) focuses entirely on potential fraud. USCIS, therefore, is not Mathews v. Diaz, 426 U.S. 67, 81 (1976), fraud detection and national security. proposing to exclude from the and with the governmental interest in FDNS investigates fraud in the benefit provisional unlawful presence waiver encouraging naturalization, see, e.g., process and makes appropriate referrals process aliens who have been married City of Chicago v. Shalala, 189 F.3d 598, to U.S. Immigration and Customs less than two years and will be admitted 608 (7th Cir. 1999), and cases cited Enforcement (ICE), the Department of as conditional residents. However, in therein.6 Justice, or other law enforcement the case of marriages that would be DHS recognizes that certain agencies when such fraud should be subject to the conditional LPR immediate relatives of U.S. citizens may considered for criminal prosecution. provisions of INA section 216, USCIS not be eligible to avail themselves of USCIS also has established standard reserves the right, in the exercise of this alternative waiver process. Aliens operating procedures in field offices for discretion, to interview the alien and who need a waiver of inadmissibility for referrals to FDNS on potential fraud the U.S. citizen spouse (as provided in unlawful presence based on extreme cases that may require additional proposed 8 CFR 212.7(e)(7) of this hardship to an LPR spouse or parent can review. For fraud prevention, FDNS proposed rule) in connection with the still apply for such waivers after their conducts benefit fraud assessments to provisional waiver application, when consular interviews abroad. detect any patterns or increase in USCIS determines that the facts in a C. Aliens Eligible To Seek a Provisional fraudulent practices in a particular particular case warrant additional Unlawful Presence Waiver application type or area of the United inquiry and review. USCIS proposes to limit the States. 2. Alien Must Be Present in the United provisional unlawful presence waiver to Congress also provided in the States When Filing the Provisional aliens who meet the following criteria: immigration laws several measures Unlawful Presence Waiver Application aimed at preventing marriage fraud, and for the Biometrics Appointment 1. Alien Must Be the Beneficiary of an focusing especially on potential for Approved Immediate Relative Petition fraud in marriages of less than two USCIS proposes to limit the category USCIS proposes to limit this proposed years’ duration. For instance, Congress of immediate relatives eligible for the provisional unlawful presence waiver mandated that aliens married less than provisional unlawful presence waiver to process to aliens who are ‘‘immediate two years are subject to conditional aliens who are present in the United relatives’’ under INA section resident status for two years after States but who are required to depart to 201(b)(2)(A)(i), 8 U.S.C. 1151(b)(2)(A)(i). admission as an immigrant. See INA immigrate through the DOS consular See proposed 8 CFR 212.7(e)(2). section 216, 8 U.S.C. 1186a; 8 CFR part process abroad. See proposed 8 CFR Immediate relatives of U.S. citizens 216; 8 CFR 235.11. Once USCIS 212.7(e)(2)(i). Eligible immediate include spouses of U.S. citizens; approves an immediate relative petition relatives also must be present in the unmarried children under the age of 21 for an alien married to a U.S. citizen, United States to provide biometrics at of U.S. citizens; and parents of U.S. and DOS determines that the alien is an USCIS Application Support CenterTKELLEY on DSK3SPTVN1PROD with PROPOSALS5 citizens over age 21. Certain surviving admissible and eligible for an immigrant (ASC). This new biometric requirement spouses and children of deceased U.S. visa, the alien can seek admission to the will help USCIS determine if the alien citizens, self-petitioners, and aliens who United States as an LPR. If, however, the potentially is subject to other grounds of alien has been married to the U.S. inadmissibility or does not merit a 6 The Department has not determined whether it citizen for less than two years before the favorable exercise of discretion, and is might extend the availability of this procedure to date of admission, the alien is admitted consistent with the agency’s security other aliens. See, Beach Commc’ns v. FCC, 508 U.S. 307, 316 (1993) (observing that policymakers ‘‘must conditionally for a two-year period and, and public safety priorities. Aliens who be allowed leeway to approach a perceived problem during that period, is considered a are outside the United States may not incrementally’’). conditional resident. seek a provisional unlawful presence VerDate Mar<15>2010 19:28 Mar 30, 2012 Jkt 226001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 E:FRFM02APP5.SGM 02APP5
  • 20. Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 19909 waiver but can proceed through the under the current waiver process Any alien who can only qualify for a current waiver process. following the consular interview. See waiver based on extreme hardship to an proposed 8 CFR 212.2(e)(7) and (e)(10). LPR spouse or parent can still apply for 3. Alien Must Seek a Visa Based on the Furthermore, USCIS’s determination a waiver under the existing process after Approved Immediate Relative Petition that it does not have reason to believe an immigrant visa interview at a U.S. USCIS proposes to require an alien that the individual may be inadmissible Embassy or consulate abroad. seeking a provisional unlawful presence on grounds other than the 3-year or 10- waiver to submit evidence year unlawful presence bar at the time 6. Alien Must Be Age 17 or Older at the demonstrating that he or she has of the immigrant visa interview does not Time of Filing a Provisional Unlawful initiated the immigrant visa process preclude DOS from making its own Presence Waiver with the DOS NVC based upon the admissibility determination and its own USCIS proposes to accept provisional approved immediate relative petition, finding that the individual may be unlawful presence waiver applications by submitting evidence that he or she ineligible for the immigrant visa despite for immediate relatives 17 years of age has paid the immigrant visa processing the approved provisional unlawful and older but reject applications filed by fee required by DOS. Such evidence is presence waiver. Jurisdiction for making those under the age of 17. Unlawful required to ensure that the alien is final ineligibility findings in relation to presence does not begin to accrue until pursuing consular processing, as the the consular immigrant visa process lies an alien who is unlawfully present in provisional unlawful presence waiver with DOS, not with USCIS. Similarly, the United States reaches the age of 18. would be granted to facilitate the neither USCIS’s approval of the Accepting waiver applications from an immigrant visa interview. The alien, provisional unlawful presence waiver alien who is 17 years of age or older however, is not eligible to apply under application nor DOS’s visa eligibility would prevent an alien’s prolonged the proposed process if he or she has determination and subsequent separation from his or her U.S. citizen already been scheduled for an immigrant visa issuance guarantees that relative in the event that the alien’s immigrant visa interview at a DOS an alien will be admitted to the United immigrant visa interview is scheduled Embassy or consulate abroad. See States by U.S. Customs and Border after his or her 18th birthday. proposed 8 CFR 212.7(e)(2) and (3). Protection (CBP) if CBP determines that USCIS analyzed whether cases already the individual is inadmissible on D. Aliens Ineligible for a Provisional scheduled for visa interview should be grounds other than those that were Unlawful Presence Waiver included in the provisional unlawful validly waived. See INA sections 204(e), Under the proposed rule, immediate presence waiver process. USCIS 221(h); 8 U.S.C. 1154(e), 1201(h). relatives of U.S. citizens would not be determined that resource constraints eligible for a provisional unlawful and timing issues warranted exclusion 5. Alien Must Meet the Requirements for the Unlawful Presence Waiver presence waiver under proposed 8 CFR of these cases from participation. 212.7(e) if: Therefore, any immigrant visa An alien must meet all statutory i. They are outside the United States; applicants who have already had their requirements for the unlawful presence ii. They are not the beneficiaries of appointments scheduled, whether they waiver, as outlined in INA section either an approved Petition for Alien actually appeared for the interview or 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v), Relative, Form I–130, classifying them not, should proceed with the immigrant including the limitation that the alien as an immediate relative, or an visa process and not delay. must show extreme hardship to a U.S. approved Petition for Amerasian, citizen spouse or parent.7 The alien also Widow(er), and Special Immigrant, 4. Alien Must Be Inadmissible Based must establish that he or she warrants Solely on Unlawful Presence at the Form I–360, classifying them as an a favorable exercise of discretion. immediate relative; Time of the Immigrant Visa Interview Under current policy, USCIS iii. They are not actively pursuing With DOS considers the death of a U.S. citizen consular processing of an immigrant USCIS proposes to further limit this petitioner to be the functional visa based on the approved immediate provisional unlawful presence waiver equivalent of extreme hardship for relative petition and have not paid the process to immediate relatives whose purposes of a waiver sought by an immigrant visa processing fee to DOS; only ground of inadmissibility is, or applicant who is a surviving immediate iv. They have been scheduled for an would be upon departure from the relative of a deceased U.S. citizen and immigrant visa interview at the time United States, the 3-year or 10-year who meets the requirements of INA they submit an application for a unlawful presence bars under INA section 204(l), 8 U.S.C. 1154(l), if the provisional unlawful presence waiver; section 212(a)(9)(B)(i)(I) or (II), 8 U.S.C. extreme hardship being claimed by the v. They fail to comply with the 1182(a)(9)(B)(i)(I) or (II) at the time of surviving beneficiary would have been biometric capture requirements; the consular interview. See proposed on account of extreme hardship to the vi. They are under the age of 17 years 8 CFR 212.7(e)(2) and (e)(3)(i). USCIS U.S. citizen petitioner if he or she had when the provisional unlawful presence proposes that if, when processing the survived. Note, however, that the waiver application is filed; provisional waiver application, USCIS finding of extreme hardship merely vii. They are in removal proceedings has reason to believe that an alien may permits, and never compels, a favorable that have not been terminated or be inadmissible on a ground of exercise of discretion.8 dismissed; inadmissibility other than unlawful viii. They have not had the charging document (Notice to Appear) to initiateTKELLEY on DSK3SPTVN1PROD with PROPOSALS5 presence under INA section 7 INA section 212(a)(9)(B)(v), 8 U.S.C. 212(a)(9)(B)(i) at the time of the visa 1182(a)(9)(B)(v), allows for consideration of extreme removal proceedings cancelled; hardship to a U.S. citizen spouse or parent or to an interview with DOS, USCIS will deny LPR spouse or parent. As explained previously, ix. They are in removal proceedings the provisional unlawful presence USCIS is limiting eligibility for the provisional that have been administratively closed waiver application. Such a denial of a waiver to those who can show extreme hardship to provisional unlawful presence waiver a U.S. citizen spouse or parent. available at http://www.uscis.gov/USCIS/Laws/ 8 See USCIS Memorandum, Approval of Petitions Memoranda/2011/January/Death-of-Qualifying- request would not be appealable; and Applications after the Death of the Qualifying Relative.pdf; see also Matter of Cervantes-Gonzalez, however, it would not preclude the Relative under New Section 204(l) of the 22 I. & N. Dec. 560, 565 (BIA 1999), aff’d, 244 F.3d alien from filing a waiver application Immigration and Nationality Act (Dec. 16, 2010), 1001 (9th Cir. 2001). VerDate Mar<15>2010 19:28 Mar 30, 2012 Jkt 226001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 E:FRFM02APP5.SGM 02APP5
  • 21. 19910 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules but not subsequently reopened for the to initiate removal proceedings USCIS would adjudicate the provisional issuance of a final voluntary departure cancelled. unlawful presence waiver. The alien order; Aliens who cannot participate in the still would have the burden to establish x. They are subject to a final order of proposed provisional unlawful presence that he or she is eligible for the waiver removal issued under section 235, 238 waiver process may still pursue a and meets the requirements outlined in or 240 of the Act or any other provision waiver through the current waiver INA section 212(a)(9)(B)(v), with the of law (including an in absentia removal process. additional limitation that the alien must order under section 240(b)(5) of the E. Filing, Adjudication, and Decisions establish extreme hardship only to his Act); or her U.S. citizen spouse or parent. See xi. They have a pending application 1. Filing the Provisional Unlawful Presence Waiver Application proposed 8 CFR 212.7(e)(2) and 8 CFR with USCIS for lawful permanent 212.7(e)(7). The alien also would have resident status in the United States; DHS proposes to require an alien to demonstrate that he or she warrants xii. USCIS has reason to believe that seeking a provisional unlawful presence a favorable exercise of the Secretary’s the alien may be subject to other waiver to file an application on the form discretion. See INA section grounds of inadmissibility at the time of designated by USCIS, with the fees 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v); immigrant visa interview with DOS; prescribed in proposed 8 CFR proposed 8 CFR 212.7(e)(6). If the alien xiii. They have not established to 103.7(b)(1) and (b)(1)(i)(C), and in accordance with the form instructions. meets all eligibility requirements, and a USCIS’s satisfaction that denial of the waiver would result in extreme See proposed 8 CFR 212.7(a)(1) and favorable exercise of discretion is hardship to the alien’s U.S. citizen (e)(4). For this new process, USCIS has warranted, USCIS would approve the spouse or parent or that a favorable created and proposes to use a new provisional unlawful presence waiver. exercise of discretion is merited; or Application for Provisional Unlawful See 8 CFR 212.7(e)(2). xiv. The alien has previously filed a Presence Waiver, Form I–601A. The 3. Requests for Evidence provisional unlawful presence waiver filing fee for the Form I–601A will be application. the same as Form I–601, which is DHS proposes to issue RFEs in While individuals with cases pending currently $585, since the adjudication accordance with USCIS regulations at with the NVC who have paid the time required for both forms is the 8 CFR 103.2 and applicable USCIS immigrant visa processing fee to DOS same.9 See proposed 8 CFR policy. USCIS will not issue Notices of and not yet been scheduled for a 103.7(b)(1)(i)(AA). USCIS will not Intent to Deny (NOIDs) to provisional consular visa interview would be accept fee waiver requests for the Form unlawful presence waiver applicants. eligible to apply for the provisional I–601A. The biometrics fee is currently DHS proposes to limit RFEs solely to the unlawful presence waiver, applicants $85 and also cannot be waived. See issues of whether the alien has who have had their immigrant visa proposed 8 CFR 103.7(b)(1)(i)(C) and 8 established extreme hardship and/or interviews scheduled will not be CFR 103.17. The new Form I–601A will minimize the potential for confusion merits a favorable exercise of discretion. allowed to participate in the provisional USCIS is committed to issuing RFEs to waiver process. The inclusion of these between the provisional waiver process and the current Form I–601 waiver address applications it receives that are cases was analyzed but resource missing critical information needed to constraints and the close coordination process. Additionally, applicants for a demonstrate extreme hardship. USCIS with DOS on the timeframes for provisional unlawful presence waiver also has determined that issuing NOIDS interview scheduling once the would be required to undergo could significantly interfere with the provisional waiver application has been filed, led to the decision to exclude the biometrics collection to ensure the operational agreements between USCIS cases from participation. NVC and integrity of the process and assist USCIS and DOS and could substantially delay USCIS intend that both document in determining if the applicants have immigrant visa processing. If an alien collection for the immigrant visa other potential grounds of fails to respond to an RFE within the interview and waiver adjudication inadmissibility. See proposed 8 CFR stated time frame, USCIS may deny the 212.7(e)(5). DHS would deny the provisional unlawful presence waiver should occur as parallel processes that provisional unlawful presence waiver application as abandoned. See 8 CFR will conclude at the same time, thus application based on abandonment of 103.2(b)(13)(i). allowing NVC to schedule the the application if the applicant fails to immigrant visa interview and transfer 4. Denials provide biometrics or fails to appear at the case to post with no additional the biometrics appointment. See delay. Therefore, any immigrant visa USCIS would deny a provisional proposed 8 CFR 103.2(b)(13) and applicant who has already had his or unlawful presence waiver application proposed 8 CFR 212.7(e)(5). her appointment scheduled, whether without issuing an RFE when the alien they actually appeared for the interview 2. Adjudication of the Provisional fails to meet any of the specified or not, should proceed with the Unlawful Presence Waiver Application eligibility criteria described in proposed immigrant visa process and not delay. Once a provisional unlawful presence 8 CFR 212.7(e). An alien whose DHS is considering development of a waiver application is properly filed, provisional unlawful presence waiver process to permit filing of provisional application is denied may seek a waiverTKELLEY on DSK3SPTVN1PROD with PROPOSALS5 unlawful presence waiver applications 9 The INA provides for the collection of fees at a after the DOS consular officer has made by certain individuals who: (a) Are in level that will ensure recovery of the full costs of providing adjudication and naturalization services, an admissibility determination at the removal proceedings but have had such including services provided without charge to immigrant visa interview at a U.S. proceedings administratively closed and asylum applicants and certain other applicants. INA were subsequently granted voluntary Embassy or consulate abroad. See section 286(m), 8 U.S.C. 1356(m). The INA provides departure, (b) were in removal that the fees may recover administrative costs as proposed 8 CFR 212.7(e)(10). An alien proceedings that have been terminated well. For further information about USCIS fees, see may not seek multiple provisional U.S. Citizenship and Immigration Services Fee unlawful presence waivers. See or dismissed or (c) have had the Schedule, 75 FR 58962 (Sept. 24, 2010) and 75 FR charging document (Notice To Appear) 33445 (June 11, 2010). proposed 8 CFR 212.7(e)(3). VerDate Mar<15>2010 19:28 Mar 30, 2012 Jkt 226001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:FRFM02APP5.SGM 02APP5
  • 22. Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 19911 5. Rejections of Provisional Unlawful proposed 8 CFR 212.7(e)(10). Rather, immigrant visa registration of an alien Presence Waiver Applications such aliens could apply for a waiver in accordance with INA section 203(g), USCIS also proposes to codify the through the current consular immigrant 8 U.S.C. 1153(g).10 DOS may terminate criteria for when an application will be visa process. See id. an alien’s immigrant visa registration if USCIS proposes to retain its authority the alien fails to apply for an immigrant rejected and fees returned to the and discretion to reopen or reconsider a visa within one year following applicant. The goal is to reduce the decision on its own motion. See notification to the alien of the likelihood than an alien will proposed 8 CFR 212.7(a)(4)(v) and 8 availability of such visa. DOS, however, erroneously file a waiver application CFR 212.7(e)(12). For the provisional may reinstate the alien’s immigrant visa and further delay his or her immigrant unlawful presence waiver process, registration if the alien establishes that visa processing. USCIS would reject a USCIS may reopen the decision and within two years following the date of request for a provisional unlawful deny or approve the provisional notification of the availability of such presence waiver if the alien: unlawful presence waiver at any time if visa that such failure to apply was due A. Fails to pay the required fees for USCIS finds that the decision was to circumstances beyond his or her the waiver application or biometrics issued in error or approval is no longer control. See INA section 203(g), 8 U.S.C. collection or pay the correct fee; warranted. USCIS would follow the 1153(g); 22 CFR 42.83. Thus, the grant B. Fails to sign the waiver application; requirements of 8 CFR 103.5(a)(5) before of the provisional unlawful presence C. Fails to provide his or her family reopening a case and denying a waiver waiver is valid as long as the alien’s name, domestic home address, and date application. A USCIS decision to deny immigrant visa registration has not been of birth; a provisional unlawful presence waiver terminated by DOS pursuant to INA D. Is under the age of 17 years. is not subject to administrative appeal. 203(g) and the underlying immigrant E. Does not include evidence of an USCIS’s decision is discretionary and is visa petition has not been revoked, approved petition that classifies the not a final agency action subject to withdrawn, or otherwise terminated. alien as an immediate relative of a U.S. judicial review, since USCIS’s decision Furthermore, the validity of the citizen; is without prejudice to the alien’s ability provisional unlawful presence waiver F. Does not include a copy of the to seek a waiver from USCIS through the also is dependent on the continued immigrant visa fee receipt evidencing consular immigrant visa process. See validity of the approved immediate that the alien has paid the immigrant proposed 8 CFR 212.7(a)(3) and (e)(8) relative petition. See proposed 8 CFR visa processing fee to DOS; and (e)(10). 212.7(a)(4), (e)(11), (e)(12) and (e)(13). If G. Has indicated on the provisional the approval of the visa petition or self- unlawful presence waiver application G. Terms and Conditions of the petition is revoked for any reason, the that a visa interview has been scheduled Provisional Unlawful Presence Waiver provisional waiver would be with DOS; or DHS proposes that a provisional automatically revoked, unless it is H. Has not indicated on the unlawful presence waiver will not otherwise reinstated for humanitarian provisional unlawful presence waiver become a final waiver unless and until reasons or converted to a widow/ application that the qualifying relative the alien departs from the United States, widower petition. Under proposed 8 is a U.S. citizen spouse or parent. he or she presents himself or herself for CFR 212.7(a)(4) and 8 CFR (e)(13), the See proposed 8 CFR 212.7(e)(4)(ii). An the immigrant visa interview at a U.S. provisional unlawful presence waiver alien whose application was rejected is Embassy or consulate abroad, and the also would be revoked automatically not prohibited from filing a new DOS consular officer determines that, in when: An immigrant visa ineligibility provisional unlawful presence waiver light of the approval of the provisional cannot be overcome; the approved application according to the procedures waiver and other evidence of record, the immigrant visa application is outlined in proposed 8 CFR 212.7(e). alien is otherwise admissible to the withdrawn, or otherwise rendered United States and eligible for an invalid at any time; or when DOS 6. Withdrawal of the Request for a immigrant visa. See proposed 8 CFR Provisional Unlawful Presence Waiver terminates the registration of the 212.7(e)(11). Once DOS determines that immigrant visa application pursuant to An alien may withdraw a provisional the alien is eligible for an immigrant INA section 203(g), 8 U.S.C. 1153(g), unlawful presence waiver application at visa, the provisional unlawful presence and DOS has not reinstated the any time prior to a final decision. waiver will become final and fully registration in accordance with section Subsequent to the withdrawal, the case effective, subject to 8 CFR 212.7(a)(4). 203(g), 8 U.S.C. 1153(g). Termination of will be closed, and the alien and his or See proposed 8 CFR 212.7(a)(4) and 8 registration under INA section 203(g), 8 her representative (if applicable) will be CFR 212.7(e)(11) and (e)(12). U.S.C. 1153(g), also automatically notified. DOS/NVC also will be notified A provisional unlawful presence revokes the approval of the underlying of the action. See proposed 8 CFR waiver would only be effective for immediate relative petition under 8 CFR 212.7(e)(8) and (9). An alien who immigrant visa issuance based on the 205.1(a)(1). withdraws an application for a approved immediate relative petition. If Finally, a provisional unlawful provisional unlawful presence waiver the consular officer determines that the presence waiver grant is revoked will not be permitted to later file a new alien is inadmissible on other grounds, automatically if the alien, at any time, application, and the filing fees will not the provisional unlawful presence be refunded. waiver is automatically revoked and the 10 INA section 203(g) provides in relevant part:TKELLEY on DSK3SPTVN1PROD with PROPOSALS5 alien would be required to file a new ‘‘The Secretary of State shall terminate the F. Motions To Reopen or Reconsider or registration of any alien who fails to apply for an waiver application that covers all Appeals of Denied Provisional Unlawful immigrant visa within one year following applicable grounds of inadmissibility, notification to the alien of the availability of such Presence Waiver Applications including the 3-year or 10-year unlawful visa, but the Secretary shall reinstate the Aliens seeking a provisional unlawful presence bar. See proposed 8 CFR registration of any such alien who establishes presence waiver would not be able to 212.7(e)(13). within 2 years following the date of notification of the availability of such visa that such failure to file a motion to reopen or motion to DHS also proposes to limit the grant apply was due to circumstances beyond the alien’s reconsider or to appeal a denial of a of a provisional unlawful presence control.’’ See also 22 CFR 42.83 (implementing INA request for a provisional waiver. See waiver to the time period of the section 203(g)). VerDate Mar<15>2010 19:28 Mar 30, 2012 Jkt 226001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 E:FRFM02APP5.SGM 02APP5
  • 23. 19912 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules reenters or attempts to reenter the J. Clarification of 8 CFR 212.7(a)(1) and section 212(a) of the Act.’’ In addition, United States without admission or (a)(4) the second sentence in 8 CFR 212.7 parole. See proposed 8 CFR 212.7(e)(13). DHS also proposes two clarifying about ‘‘forwarding’’ of an application amendments to 8 CFR 212.7(a)(1) and from DOS to USCIS is not necessary. H. Validity of the Provisional Unlawful The second sentence is an internal case Presence Waiver (a)(4). See proposed 8 CFR 212.7(a)(1) and (a)(4). The first clarifying management provision that does not Once the provisional waiver takes full amendment is necessary because of an directly affect how an applicant seeks effect in accordance with this rule, the amendment to 8 CFR 212.7(a)(1) that the benefit. For these reasons, DHS proposes to alien would no longer be inadmissible DHS included as part of the final rule revise 8 CFR 212.7(a)(1) so that its text to the United States under INA section published in the Federal Register on more fully aligns with the purpose of 212(a)(9)(B) based on previously- August 29, 2011, at 76 FR 53764 the August 29, 2011 final rule. Rather accrued unlawful presence. The alien’s (August 29, 2011 final rule). The August than referring only to three types of period of unlawful presence in the 29, 2011 final rule provides the waivers that an alien may seek, the United States upon which the waiver is regulatory framework that will enable amended provision would apply to any based would be permanently waived, USCIS to migrate from a paper file- waiver of inadmissibility that an alien other than for conditional permanent based, nonintegrated systems currently seeks by filing the Form I–601 residents whose status is terminated and environment to an electronic customer- or any future form that may be certain K nonimmigrants, as described focused, centralized case management designated by USCIS for waivers of below. See proposed 8 CFR 212.7(a)(4) environment for benefits processing. grounds of inadmissibility under these and (e)(12). The consular officer could Before the August 29, 2011 final rule provisions. The proposed amendment issue the immigrant visa since the alien entered into effect on November 28, would remove what is now the second is no longer inadmissible. 2011, 8 CFR 212.7(a)(1) read: sentence in current 8 CFR 212.7(a)(1). I. Limitations of a Provisional Unlawful Form I–601 must be filed in accordance Finally, the proposed amendments with the instructions on the form. When filed would clarify who can apply for the Presence Waiver at a consular office, Form I–601 shall be waivers covered under 8 CFR forwarded to USCIS for a decision upon 212.7(a)(1). The application for, or grant of, a conclusion that the alien is admissible but for DHS also proposes to amend 8 CFR provisional unlawful presence waiver the grounds for which a waiver is sought. under this proposed rule does not create 212.7(a)(4), concerning the validity of a a lawful immigration status or extend The August 29, 2011 final rule revised waiver of inadmissibility. Two general any authorized period of stay to the the provision, effective November 28, principles are that a waiver of alien while the provisional waiver 2011, so that it now reads: inadmissibility applies only to the application is pending review with Any alien who is inadmissible under sections specific grounds for which a waiver is USCIS or while the alien is waiting for 212(g), (h), or (i) of the Act who is eligible sought, and that, except as described in his or her immigrant visa interview. If for a waiver of such inadmissibility may file this rule with respect to provisional an alien is present in the United States on the form designated by USCIS, with the unlawful presence waivers, the waiver, fee prescribed in 8 CFR 103.7(b)(1) and in once granted, is valid indefinitely. DHS without lawful immigration status, he or accordance with the form instructions. When she remains subject to removal, as does not intend to alter these principles, filed at the consular section of an embassy or and the proposed amendment includes provided by law. See INA section 240, consulate, the Department of State will 8 U.S.C. 1229a. A pending or approved them. forward the application to USCIS for a One exception to these general application for a provisional unlawful decision after the consular official concludes that the alien is otherwise admissible. principles relates to aliens who obtain a presence waiver also will not toll the waiver of inadmissibility in conjunction accrual of unlawful presence, but a 8 CFR 212.7(a)(1), as amended at 76 FR with an application for lawful grant of the provisional unlawful 53787 (emphasis added). Deletion of the permanent resident status and who are presence waiver will cover specific reference to the Form I–601 is admitted as LPRs on a conditional basis inadmissibility under both the 3-year consistent with the purpose of the under section 216 or 216A of the Act, and the 10-year bars under INA section August 29, 2011 final rule by facilitating 8 U.S.C. 1186 or 1186A. For any such 212(a)(9)(B)(i). A pending or approved the move to electronic filing and case aliens, termination of conditional LPR application for a provisional unlawful management. The reference to aliens status would also terminate the validity presence waiver will not protect the ‘‘inadmissible under sections 212(g), (h), of the waiver. The waiver would be alien from any other grounds of or (i) of the Act,’’ however, is an error. restored if the alien challenges the inadmissibility that he or she may be The cited provisions are not grounds of termination in removal proceedings and subject to in the future, such as the bar inadmissibility but are the statutory the removal proceedings result in the for unlawful reentry after previous bases for some of the waivers of restoration of the alien’s status as an immigration violation in the United inadmissibility that an alien may seek LPR. See current 8 CFR 212.7(a)(4) and States, under INA section 212(a)(9)(C), 8 under 8 CFR 212.7. For example, an proposed 8 CFR 212.7(a)(4). U.S.C. 1182(a)(9)(C). A pending or alien who is inadmissible based on the Another exception is necessarily approved provisional unlawful presence 3-year and 10-year unlawful presence inferred from the statute. Sections waiver does not provide an individual bar under INA section 212(a)(9)(B)(i), 101(a)(15)(K)(i) and 214(d) of the Act, 8 with the right to obtain advance parole,TKELLEY on DSK3SPTVN1PROD with PROPOSALS5 8 U.S.C. 1182(a)(9)(B)(i), uses the same U.S.C. 1101(a)(15)(K)(i) and 1184(d), the right to enter the United States, or application process to seek a waiver of permit the nonimmigrant admission of the right to obtain and be granted any inadmissibility for unlawful presence ´ the alien fiance(e) of a citizen of the other immigration benefit. Finally, a under INA section 212(a)(9)(B)(v), 8 United States. Although technically pending or approved provisional U.S.C. 1182(a)(9)(B)(v). Therefore, the issued nonimmigrant visas and unlawful presence waiver does not reference to INA section 212(g), (h) and admitted as nonimmigrants, the guarantee issuance of an immigrant visa (i) is removed and replaced with the ´ fiance(e), and any accompanying or or admission to the United States based more general reference ‘‘who is following-to-join children, are treated upon the immigrant visa. inadmissible under any provision of like immigrants who are immediate VerDate Mar<15>2010 19:28 Mar 30, 2012 Jkt 226001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 E:FRFM02APP5.SGM 02APP5
  • 24. Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 19913 relatives. See Matter of Le, 25 I&N Dec. annual effect on the economy of $100 DHS estimates the discounted total 541 (BIA 2011), and Matter of Sesay, million or more; a major increase in ten-year cost of this rule would range 25 I&N Dec. 431 (BIA 2011). DOS costs or prices; or significant adverse from approximately $100.6 million to regulations require such aliens to effects on competition, employment, approximately $303.8 million at a seven qualify for immigrant visas. 22 CFR investment, productivity, innovation, or percent discount rate. Compared with 41.81(d). Since the publication of a final on the ability of United States-based the current waiver process, this rule rule on August 10, 1988, DHS has companies to compete with foreign- proposes that the provisional waiver ´ allowed nonimmigrant fiance(e)s and based companies in domestic and applicants submit biometric their children to seek inadmissibility export markets. information. Included in this cost waivers as immigrants. See Marriage estimate is the cost of collecting Fraud Amendments Regulations, 53 FR C. Executive Orders 12866 (Regulatory biometrics, which we estimate will 30011 (Aug. 10, 1988). This practice is Planning and Review) and 13563 range from approximately $28 million to consistent with the principle, (Improving Regulation and Regulatory approximately $42.5 million at seven recognized in Matter of Le and Matter of Review) percent over ten years. In addition, as ´ Sesay, that the fiance(e) and 1. Executive Orders 12866 and 13563 this rule significantly streamlines the accompanying children are similar in direct agencies to assess the costs and current process, DHS expects that important respects to immigrants who benefits of available regulatory additional applicants will apply for the are immediate relatives. The statutory alternatives and, if regulation is provisional waiver compared to the provisions, including INA sections necessary, to select regulatory current waiver process. To the extent 212(a)(9)(B)(v), (g), (h) and (i), 8 U.S.C. approaches that maximize net benefits that this rule induces new demand for 1182(a)(9)(B)(v), (g), (h), and (i), (including potential economic, immediate relative visas, additional however, generally make the waivers environmental, public health and safety forms such as the Petitions for Alien available only to ‘‘spouses’’ of citizens effects, distributive impacts, and Relative, Form I–130 will be filed ´ and LPRs. The fiance(e) is not yet a equity). Executive Order 13563 compared to the pre-rule baseline. spouse. For this reason, a waiver emphasizes the importance of These additional forms will involve fees ´ granted to a fiance(e), and any quantifying both costs and benefits, of being paid by applicants to the Federal accompanying or following-to-join reducing costs, of harmonizing rules, Government for form processing and children, can only be fully effective and of promoting flexibility. This rule is additional opportunity costs of time once the intended marriage takes place. a ‘‘significant regulatory action,’’ being incurred by applicants to provide DHS proposes to amend 8 CFR although not an economically the information required by the forms. 212.7(a)(4) to make this necessary significant regulatory action, under The cost estimate for this rule also corollary explicit. section 3(f) of Executive Order 12866. includes the impact of this induced Accordingly, the Office of Management demand, which we estimate will range V. Public Input and Budget has reviewed this from approximately $72.6 million to DHS invites comments from all approximately $261.3 million at seven interested parties, including advocacy regulation. This effort is consistent with Executive Order 13563’s call for percent over ten years. groups, nongovernmental organizations, A key uncertainty that impacts any community-based organizations, and agencies to ‘‘consider how best to cost estimate of this rule is the legal representatives who specialize in promote retrospective analysis of rules uncertainty involving the actual number immigration law on any and all aspects that may be outmoded, ineffective, of people that will avail themselves to of this proposed rule. DHS is insufficient, or excessively burdensome, this streamlined provisional waiver specifically seeking comments on: and to modify, streamline, expand, or process. USCIS is not aware of any data repeal them in accordance with what A. The proposed waiver process; that will allow us to estimate with has been learned.’’ B. Proposed filing procedures; and precision the increase in demand due to C. Any alternatives to the proposed waiver Summary this rule. For cost estimating purposes, process that may be more effective than the DHS has analyzed the cost of an current USCIS overseas waiver process. The proposed rule would allow increase in demand of 25%, 50%, 75% certain immediate relatives of U.S. and 90% compared to the existing VI. Statutory and Regulatory citizens who are physically present in Requirements waiver process. the United States to apply for a A. Unfunded Mandates Reform Act of provisional waiver of the 3-year or 2. Problems Addressed by the Proposed 1995 10-year bar for accrual of unlawful Changes This proposed rule will not result in presence prior to departing for consular Currently, aliens undergoing consular the expenditure by State, local and processing of their immigrant visa. This processing of their immediate relative tribal governments, in the aggregate, or new provisional unlawful presence visas cannot apply for an unlawful by the private sector, of $100 million or waiver process would be available to presence waiver until the consular more in any one year, and it will not aliens whose only ground of officer determines that they are significantly or uniquely affect small inadmissibility is, or would be, the inadmissible during their immigrant governments. Therefore, no actions were 3-year or 10-year unlawful presence bar. visa interviews. The current unlawful deemed necessary under the provisions This proposed rule is expected to presence waiver process requires theseTKELLEY on DSK3SPTVN1PROD with PROPOSALS5 of the Unfunded Mandates Reform Act result in a reduction in the time that immediate relatives to remain abroad of 1995. U.S. citizens are separated from their until USCIS adjudicates the waiver. alien immediate relatives, thus reducing DOS can only issue the immigrant visa B. Small Business Regulatory the financial and emotional hardship for upon notification from USCIS that the Enforcement Fairness Act of 1996 these families. In addition, the Federal waiver has been approved. As This proposed rule is not a major rule Government would achieve increased previously mentioned, the processing as defined by section 804 of the Small efficiencies in processing immediate time under the current waiver process Business Regulatory Enforcement Act of relative visas for individuals subject to can take over one year. Because of these 1996. This rule will not result in an the inadmissibility bar. lengthy processing times, U.S. citizens VerDate Mar<15>2010 19:28 Mar 30, 2012 Jkt 226001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 E:FRFM02APP5.SGM 02APP5
  • 25. 19914 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules may be separated from their immediate almost exclusively of alien immediate different categories, the estimation and relative family members for prolonged relatives present in the United States collection methodologies used, or other periods resulting in financial, without having been admitted or reasons of incompatibility. Absent emotional, and humanitarian hardships. paroled. information on the number of aliens Family unification is a foundational DHS does not maintain data on the who are in the United States without principle of immigration law. number of immediate relatives present having been inspected and admitted or The proposed rule would permit in the United States who would qualify paroled and who are immediate certain immediate relatives to apply for under the proposed unlawful presence relatives of U.S. citizens, DHS cannot a provisional unlawful presence waiver waiver process. The DHS Office of reliably estimate the affected population prior to departing the United States. Immigration Statistics (DHS OIS) of the proposed rule. USCIS would adjudicate the provisional estimates that the population of unlawful presence waiver and, if unauthorized immigrants (those present 4. Demand approved, would provide notification to without admission or parole) residing in DHS expects that the proposed rule, DOS. Thus, the provisionally approved the United States is approximately 10.8 once finalized and effective, will waiver would be available to the million as of January 2010.11 While all increase demand for both immigrant consular officer at the immigrant visa persons affected by the proposed rule visa petitions for alien relatives and interview. If the consular officer are within the estimated population of applications for waivers of determines there are no other 10.8 million, it is estimated that only a inadmissibility. Existing demand is impediments to admissibility and that portion are immediate relatives of U.S. constrained by the current process that the alien is otherwise eligible for citizens who meet the criteria required requires individuals to leave the United issuance of the immigrant visa, the visa for the new process. States and be separated for can be immediately issued. This Other estimates are equally unpredictable and sometimes lengthy proposed process change would inconclusive of the number of amounts of time from their immediate significantly reduce the amount of time immediate relatives of U.S. citizens who relatives in the United States in order to U.S. citizens are separated from their are subject to the unlawful presence obtain an immigrant visa to become an immediate alien relatives. In addition, bars. For example, the Pew Hispanic LPR. Immediate relatives eligible for the proposed changes would streamline Trust estimates that there are 9.0 million LPR status if issued a waiver of the immigrant visa waiver process, persons 12 living in mixed status inadmissibility may be reluctant to avail thereby increasing efficiencies. families in the United States that themselves of the current process 3. The Population Affected by the include at least one unauthorized adult because of the length of time that they Proposed Rule alien and at least one U.S.-born child. may be required to wait outside the This, and associated information from United States before they can be As explained above, only certain the Pew Hispanic Trust, does not admitted as LPRs. immediate relatives undergoing provide a reliable means for the The proposed process would allow an consular processing for an immigrant calculation of how many of the immediate relative who meets the visa who would be inadmissible based individuals in these families are U.S. eligibility criteria of this proposed rule on accrual of unlawful presence at the citizens rather than alien immediate to apply for a provisional unlawful time of the immigrant visa interview relatives, or the proportion of persons presence waiver and receive a decision would be eligible to apply under the with unlawful presence who are the on that application before departing the proposed waiver process. Immediate immediate relatives of LPRs rather than United States for a consular interview. relatives of U.S. citizens who are able to U.S. citizens.13 Nor do these data The streamlined procedure of this adjust status in the United States are not indicate how many persons within these proposed rule may reduce the affected. Immediate relatives who are families are under the age of 18 14 or reluctance of aliens who may wish to eligible for adjustment of status in the have alternative methods of normalizing obtain an immigrant visa to become an United States generally include those their immigration status without having LPR but are deterred by the lengthy who were admitted to the United States to leave the United States and, separation from family members on nonimmigrant visas (student, tourist, consequently, are unlikely to be affected imposed by the current process and etc.) or who were paroled, including by the proposed rule. uncertainty related to the ultimate those who are present in the United Data from different sources cannot be success of obtaining an approved States after the expiration of their reliably combined because of inadmissibility waiver. authorized periods of stay. differences in their total estimates for The costs associated with normalizing In most instances, aliens present in the United States without having been a qualifying immediate relative’s status 11 Department of Homeland Security, Office of admitted or paroled are not eligible to also may be a constraint to demand. Immigration Statistics, Estimates of the adjust their status and must leave the Unauthorized Immigrant Population Residing in the These current costs include: 15 United States for immigrant visa United States: January 2010. Available at: http:// 1. Petition for Alien Relative, Form I–130, processing at a U.S. Embassy or www.dhs.gov/xlibrary/assets/statistics/ to establish a qualifying relationship to a U.S. publications/ois_ill_pe_2010.pdf. citizen; fee cost = $420.00. consulate abroad to immigrate to the 12 Pew Hispanic Trust, Unauthorized Immigrants: United States. Since these aliens are 2. Application for Waiver of Grounds of Length of Residency, Patterns of Parenthood, present in the United States without December 2011, pg. 6. Available at http://www. Inadmissibility, Form I–601, to obtain a waiver of inadmissibility for unlawfulTKELLEY on DSK3SPTVN1PROD with PROPOSALS5 having been admitted or paroled, many pewhispanic.org/files/2011/12/Unauthorized- Characteristics.pdf. presence; fee cost = $585.00. already have accrued more than 180 13 The proposed rule applies only to alien days of unlawful presence and, if so, immediate relatives of U.S. citizens, not to alien 15 Fees quoted are as of December 2011. Source would become inadmissible under the relatives of lawful permanent residents. for DOS fees: http://travel.state.gov/visa/temp/ unlawful presence bars upon their 14 In the Pew Hispanic Trust report Unauthorized types/types_1263.html#perm. Source for USCIS departure from the United States to Immigrants: Length of Residency, Patterns of fees: http://www.uscis.gov/portal/site/uscis/ Parenthood, ‘‘families’’ are defined as adults age 18 menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/ attend their immigrant visa interviews. and older who live with their minor children (i.e., ?vgnextoid=b1ae408b1c4b3210VgnVCM100000b92c While there may be limited exceptions, younger than 18) and unmarried, dependent a60aRCRD&vgnextchannel=b1ae408b1c4b3210Vgn the affected population would consist children younger than 25. VCM100000b92ca60aRCRD. VerDate Mar<15>2010 19:28 Mar 30, 2012 Jkt 226001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 E:FRFM02APP5.SGM 02APP5
  • 26. Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 19915 3. Time and expense of preparing the The costs listed above are not new to historical volumes of immediate evidence to support the ‘‘extreme hardship’’ this proposed rule; they are required relatives who are seeking waivers for requirements for a waiver of inadmissibility. under the current process. unlawful presence are limited, at best, The evidentiary requirements could include Under the proposed process, aliens due to the lack of data. Historical sworn statements from family members, would be required to submit biometrics estimates show only those aliens who friends and acquaintances, medical records, after filing the provisional unlawful have taken the steps to obtain an psychiatric/psychological records, school presence waiver application, along with immigrant visa to become LPRs. The records, evidence of illness of family the corresponding fee (currently data are silent, however, on that members, financial information and tax $85.00). This biometric fee would be in population of aliens who have not returns, letters from teachers, support letters addition to the visa security fee required from churches and community organizations, initiated action to become LPRs due to by DOS for the immigrant visa current uncertainties and risks. evidence of health and emotional problems application. The proposed requirement that may result from the separation, and such Therefore, we recognize that the to submit biometrics, with the estimates provided below may other documentation; cost = variable. associated fee and travel costs, would be understate what would actually occur if 4. Travel from the United States to the a small portion of the total costs of the this rule becomes effective. immediate relative’s home country or visa application process. country where the visa is being processed, The current level of demand, shown As there are no annual limitations on and any additional living expenses required in Table 1, is a result of the existing the number of immediate relative visas to support two households while awaiting an constraints described previously: The that can be issued, the increase in the immigrant visa; cost = variable. possibility of lengthy separation of 5. Immigrant visa processing fees paid to: annual demand for waivers would be determined by the size of the affected immediate relatives and their U.S. (a) The Department of State ($330), processed population and the increased propensity citizen relatives; uncertainty of the on the basis of a USCIS-approved I–130 to apply. As previously mentioned, a ultimate success of obtaining an petition; and (b) USCIS ($165). Total fee cost = $495.00. potential increase in demand might be approved inadmissibility waiver; and 6. An Affidavit of Support Under Section limited, as is current demand, by the the financial constraints (costs). Because 213A of the Act, Form I–864; fee cost = costs previously noted. of the variability in timing between $88.00. With the absence of an estimate of the when immigrant visa petitions and 7. Immigrant visa background and security affected population, we have calculated waiver applications are submitted and check surcharge per person applying for any a preliminary estimate for the increase adjudicated and the time when an immigrant visa category; fee cost = $74.00. in demand based on historical records immigrant visa is issued, comparisons 8. Other forms, affidavits, etc. as required and assumptions on the range of between the totals within a single year for individual applications; cost = variable. demand. Forecasts of demand based on are not meaningful. TABLE 1—HISTORICAL IMMIGRATION DATA—FISCAL YEARS 2001 THROUGH 2010 Petitions for Immediate rel- Ineligibility Ineligibility Fiscal year alien relative, ative visas finding 16 overcome 17 Form I–130 issued 2001 ................................................................................................................. 18 903,348 172,087 5,384 6,157 2002 ................................................................................................................. 392,655 178,142 2,555 3,534 2003 ................................................................................................................. 362,756 154,760 3,301 1,764 2004 ................................................................................................................. 367,436 151,724 4,836 2,031 2005 ................................................................................................................. 370,427 180,432 7,140 2,148 2006 ................................................................................................................. 437,744 224,187 13,710 3,264 2007 ................................................................................................................. 546,833 219,323 15,312 7,091 2008 ................................................................................................................. 172,000 238,848 31,069 16,922 2009 ................................................................................................................. 188,749 227,517 24,886 12,584 2010 ................................................................................................................. 217,238 215,947 22,093 18,826 10 year average ............................................................................................... 395,919 196,297 13,029 7,432 Ineligibility Findings overcome (10 year average) ........................................... n/a n/a n/a 57.0% Note: Sums may not total due to rounding. Sources: Petitions for Alien Relative, Form I–130, from USCIS. Immediate relative visas issued are from individual annual Report(s) of the Visa Office, Department of State Visa Statistics, accessible at http://travel.state.gov/visa/statistics/statistics_1476.html. Ineligibility data are also from the individual annual report(s) of the Visa Office, Department of State Visa Statistics and appears in Table XX of each annual report. As is evident, each of the data sets in The estimate of future demand under Ineligibility Overcome in Table 1 refer Table 1 demonstrates a wide variability. the new process would be determined only to ineligibility where the grounds by the number of ineligibility findings. of inadmissibility were the 3-year or the 16 Both the Ineligibility Finding and Ineligibility The data for Ineligibility Findings and 10-year unlawful presence bar. This Overcome columns refer only to ineligibility in which the grounds of inadmissibility were the 3- data, however, also includes immediateTKELLEY on DSK3SPTVN1PROD with PROPOSALS5 year or the 10-year unlawful presence bar. This by the proposed rule. Comparisons between the relatives of LPRs who are not affected by figure is not limited to immigrant petitioners who totals of Ineligibility Findings/Ineligibility this rule. DHS has provided the data in are immediate relatives of U.S. citizens and Overcome within a single year are not meaningful because of the variability in timing between when Table 1 to provide historical context includes relatives of LPRs. Ineligibility findings were low between 2001 and 2005/2006 because an ineligibility finding is made and when (and if) noting that the last three years of many individuals were not seeking immigrant visas it is overcome. ineligibility findings are well above the through the consular process overseas; instead, they 18 The number of Petitions for Alien Relative, 10-year historical average. For this adjusted to lawful permanent resident status Form I–130, filed in 2001 is high because many stateside under INA section 245(i). filed petitions in anticipation of the INA section reason, DHS used the estimate for the 17 Id. Ineligibility Findings/Ineligibility Overcome 245(i) sunset date, which occurred on April 30, future filings for waivers of includes immediate relatives who are not affected 2001. inadmissibility made by the USCIS VerDate Mar<15>2010 19:28 Mar 30, 2012 Jkt 226001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 E:FRFM02APP5.SGM 02APP5
  • 27. 19916 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules Office of Performance and Quality relative visas issued and ineligibility The DHS preliminary estimates were (OPQ), Data Analysis and Reporting findings presented in Table 1, OPQ’s formulated based on general Branch, as the basis for the estimated estimate of 19,200 applications for assumptions of the level of constraints future filings. The current OPQ estimate waivers of unlawful presence represents on demand removed by the proposed for future waivers of inadmissibility is as reasonable of an approximation as rule. DHS does not know of any approximately 24,000 per year. possible for future demand based on available data that would enable a Currently, 80 percent (or 19,200) of all available data of the current waiver calculation of the increases in filing waivers of inadmissibility are filed on process. propensities or an increase in the DHS anticipates that the changes the basis of inadmissibility due to the number of inadmissibility findings or proposed would encourage immediate unlawful presence bars.19 This estimate the percentage of inadmissibility relatives who are unlawfully present to is further confirmed when examining findings where the inadmissibility bar is initiate actions to obtain an immigrant the most recent 5-year period between visa to become LPRs when they overcome. FY 2006–FY 2010 where the average otherwise would be reluctant to under Table 2 indicates the estimate of unlawful presence ineligibility finding the current process. As confidence in demand under the current process. This is approximately 21,400. In light of the the new process increases, demand is the baseline demand expected in the recent upward trend of immediate would be expected to trend upward. absence of the proposed rule. TABLE 2—BASELINE ESTIMATES OF GROWTH IN PETITIONS FOR ALIEN RELATIVES AND INELIGIBILITY FINDINGS BASED ON UNLAWFUL PRESENCE UNDER THE CURRENT PROCESS Petitions for Ineligibility Fiscal year alien relative, finding 21 Form I–130 20 Year 1 .......................................................................................................................................................... 405,510 19,665 Year 2 .......................................................................................................................................................... 415,340 20,142 Year 3 .......................................................................................................................................................... 425,410 20,630 Year 4 .......................................................................................................................................................... 435,720 21,130 Year 5 .......................................................................................................................................................... 446,280 21,642 Year 6 .......................................................................................................................................................... 457,100 22,167 Year 7 .......................................................................................................................................................... 468,180 22,704 Year 8 .......................................................................................................................................................... 479,530 23,255 Year 9 .......................................................................................................................................................... 491,150 23,818 Year 10 ........................................................................................................................................................ 503,050 24,395 10 Year Totals ...................................................................................................................................... 4,527,570 219,549 Note: Sums may not total due to rounding. Based on the data available on for the previous 10 years based on DHS does not have data available that requests for waivers under the current reports by the DHS OIS.22 This is an would permit an estimation of the process, Table 2 forecasts the number of imperfect calculation, as the escalation of change in this variable. findings of inadmissibility due to undocumented population has declined Thus, this estimate of future petitions accrual of unlawful presence. The since its peak in 2007,23 but because of for alien relatives and ineligibility results presented in Table 2 are meant the data association problems noted findings is based on a range of to show forecasts for future demand for previously, DHS used the 10-year (long assumptions concerning the current waivers due to unlawful presence bars term) compound average growth rate. constraint on demand. As a result, Table under the current process. DHS assumes 3 provides a scenario analysis utilizing that in every case where a consular The ineligibility findings in Table 2 are calculated using the estimate of estimates of various amounts of officer determines inadmissibility based 19,200 average annual waivers filed on constraint on demand. For example, an on unlawful presence, the alien would apply for a waiver. Thus, Table 2 the basis of unlawful presence, which assumption that demand is currently represents the baseline totals we would equates to 0.04849 ineligibility findings constrained by 25 percent would mean expect in the absence of the proposed for every alien relative petition based on that there would be a 25 percent waiver process. the 10-year average. Again, these increase from the baseline in the In these calculations, the petitions for calculations are imperfect since they are number of I–601A applications for each an alien relative made by U.S. citizens based on immigrant visas granted for the year under the proposed rule. The are expected to increase annually by the alien relative population (both findings of this range analysis are 2.4 percent compound annual growth immediate relative and family presented in Table 3. rate for the undocumented population preference).TKELLEY on DSK3SPTVN1PROD with PROPOSALS5 19 The 80 percent estimate was calculated by the Unauthorized Immigrant Population Residing in 22 DHS Office of Immigration Statistics, Estimates USCIS based on data from all I–601s completed by the United States: January 2010, pg. 1. Subsequent of the Unauthorized Immigrant Population Residing overseas offices from August 2010 to October 28, years are increased at the same 2.4 percent growth in the United States: January 2010, pg. 1. The 2.4 2011 and comparing those that listed only unlawful rate. As a comparison, the U.S. population as a percent (rounded) compound annual growth rate is presence as an inadmissibility ground. 20 The first year estimate is the 10 year average whole rose at a compound annual growth rate of calculated from the estimated populations of 0.930 percent over the same period. unauthorized immigrants living in the United States of 395,919 multiplied by the 2.4 percent compound annual growth rate for the undocumented 21 Ineligibility Findings are calculated at the in 2000 (8.5 million) and in 2010 (10.8 million). population for the previous 10 years reported in the USCIS estimate of .04849 per 100,000 petitions for 23 Id. DHS Office of Immigration Statistics, Estimates of an alien relative. 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  • 28. Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 19917 TABLE 3—PRELIMINARY ESTIMATES OF INADMISSIBILITY FINDINGS REQUIRING AN UNLAWFUL PRESENCE WAIVER, FORM I– 601A ASSOCIATED WITH THE INCREASED DEMAND OF THE PROPOSED RULE Expected demand for Form I–601A with current constrained demand of Year 25 Percent 50 Percent 75 Percent 90 Percent Year 1 ...................................................................................... 24,581 29,498 34,414 37,364 Year 2 ...................................................................................... 25,177 30,213 35,248 38,269 Year 3 ...................................................................................... 25,788 30,945 36,103 39,197 Year 4 ...................................................................................... 26,413 31,695 36,978 40,147 Year 5 ...................................................................................... 27,053 32,463 37,873 41,120 Year 6 ...................................................................................... 27,709 33,250 38,792 42,117 Year 7 ...................................................................................... 28,380 34,056 39,733 43,138 Year 8 ...................................................................................... 29,068 34,882 40,696 44,184 Year 9 ...................................................................................... 29,773 35,727 41,682 45,255 Year 10 .................................................................................... 30,494 36,593 42,692 46,351 10 Year Totals .................................................................. 274,436 329,324 384,211 417,143 Note: Numbers may not total due to rounding. Table 4 is the expected increase in are obtained by subtracting the baseline estimates under the proposed rule in inadmissibility waiver applications due estimates in Table 2 (without the Table 3. to the proposed rule. These estimates proposed rule) from the preliminary TABLE 4—PRELIMINARY ESTIMATES OF THE ADDITIONAL INELIGIBILITY FINDINGS REQUIRING AN INADMISSIBILITY WAIVER UNDER THE PROPOSED RULE [Induced demand] 24 Additional ineligibility findings requiring an inadmissibility waiver with current constrained demand of Year 25 Percent 50 Percent 75 Percent 90 Percent Year 1 ...................................................................................... 4,916 9,833 14,749 17,699 Year 2 ...................................................................................... 5,035 10,071 15,106 18,128 Year 3 ...................................................................................... 5,158 10,315 15,473 18,567 Year 4 ...................................................................................... 5,283 10,565 15,848 19,017 Year 5 ...................................................................................... 5,411 10,821 16,232 19,478 Year 6 ...................................................................................... 5,542 11,083 16,625 19,950 Year 7 ...................................................................................... 5,676 11,352 17,028 20,434 Year 8 ...................................................................................... 5,814 11,627 17,441 20,929 Year 9 ...................................................................................... 5,955 11,909 17,864 21,436 Year 10 .................................................................................... 6,099 12,198 18,296 21,956 10 Year Totals .................................................................. 54,887 109,775 164,662 197,594 Note: Numbers may not total due to rounding. 5. Costs following costs associated with average of one hour for service and to The proposed rule would require submitting biometrics with an have biometrics collected. provisional waiver applicants to submit application for the provisional unlawful DHS recognizes that the individuals biometrics to USCIS. This is the only presence waiver: The required USCIS impacted by the proposed rule are new cost applicants would incur under fee and the opportunity and mileage unlawfully present and are generally not the proposed provisional unlawful costs of traveling to a USCIS ASC to eligible to work; however, consistent presence waiver process in comparison have the biometric recorded. with other DHS rulemakings, we use to the current waiver process. The other wage rates as a mechanism to estimate The current USCIS fee for collecting the opportunity or time valuation costs costs of the proposed rule emanate from and processing biometrics is $85.00. In the increase in the demand created by associated with the required biometric addition, DHS estimates the opportunity collection. The Federal minimum wage the proposed rule. These other costs costs for travel to an ASC in order to include the fees and preparation costs is currently $7.25 per hour.25 In order to have the biometric recorded based on anticipate the full opportunity cost of for forms prepared by individuals whoTKELLEY on DSK3SPTVN1PROD with PROPOSALS5 the cost of travel (time and mileage) providing biometrics, DHS multiplied would not file under the current rule. plus the average wait time to have the For the biometric collection, the alien biometric collected. While travel times 25 U.S. Dep’t of Labor, Wage and Hour Division. immediate relative would incur the The minimum wage is as of July 24, 2009. Bureau and distances will vary, DHS estimates of Labor Statistics, Occupational Employment and 24 The increased ineligibility findings in Table 4 that the average round-trip to an ASC Wages—May 2010 National Occupational are the difference in ineligibility findings from the will be 50 miles, and that the average Employment and Wage Estimates (May 17, 2011), different assumptions of the level of constrained time for that trip will be 2.5 hours. DHS available at: http://www.dol.gov/whd/ demand in Table 3 and the baseline ineligibility estimates that an alien will wait an minimumwage.htm.http://www.bls.gov/ findings shown in Table 2. news.release/pdf/ocwage.pdf. VerDate Mar<15>2010 19:28 Mar 30, 2012 Jkt 226001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 E:FRFM02APP5.SGM 02APP5
  • 29. 19918 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules the minimum hourly wage rate by 1.44 and the mileage charge of $25.50, DHS The incremental costs of the biometric to account for the full cost of employee estimates that the cost per provisional requirement of the rule are computed as benefits such as paid leave, insurance, waiver applicant to be $62.04 for travel the $147.04 cost per provisional and retirement, which equals $10.44 per to and service at the ASC.27 When the unlawful presence waiver multiplied by hour.26 In addition, the cost of travel $85.00 biometric fee is added, the total the total number of applicants for includes a mileage charge based on the estimated additional cost per provisional waivers applying after the estimated 50 mile round trip at the GSA provisional unlawful presence waiver proposed rule is finalized. This rate of $0.51 per mile, which equals over the current waiver process is population is represented in Table 3. $25.50 for each applicant. $147.04. All other fees charged by The incremental costs of the additional Using an opportunity cost of time of USCIS and DOS to apply for immediate biometric fee are shown in Table 5. $10.44 per hour and the 3.5 hour relative visas remain the same under the estimated time for travel and service current and proposed processes.28 TABLE 5—COSTS OF PROPOSED BIOMETRIC REQUIREMENT TO IMMEDIATE RELATIVES FILING A PROVISIONAL WAIVER APPLICATION [Table 3 multiplied by $147.04] Additional inadmissibility waiver application fees with current constrained demand of Year 25 Percent 50 Percent 75 Percent 90 Percent Year 1 ...................................................................................... $3,614,451 $4,337,342 $5,060,232 $5,493,966 Year 2 ...................................................................................... 3,702,070 4,442,484 5,182,898 5,627,146 Year 3 ...................................................................................... 3,791,827 4,550,193 5,308,558 5,763,577 Year 4 ...................................................................................... 3,883,724 4,660,468 5,437,213 5,903,260 Year 5 ...................................................................................... 3,977,849 4,773,418 5,568,988 6,046,330 Year 6 ...................................................................................... 4,074,291 4,889,149 5,704,007 6,192,922 Year 7 ...................................................................................... 4,173,051 5,007,661 5,842,271 6,343,037 Year 8 ...................................................................................... 4,274,217 5,129,061 5,983,904 6,496,811 Year 9 ...................................................................................... 4,377,791 5,253,349 6,128,907 6,654,242 Year 10 .................................................................................... 4,483,859 5,380,631 6,277,403 6,815,466 10 Year Totals Undiscounted ........................................... 40,353,130 48,423,756 56,494,382 61,336,758 10 Year Totals Discounted at 7.0 percent ....................... 27,967,676 33,561,211 39,154,746 42,510,867 10 Year Totals Discounted at 3.0 percent ....................... 34,221,714 41,066,057 47,910,400 52,017,006 Note: Numbers may not total due to rounding. In addition to the costs of the more complete estimate of the impact of 1. Cost of Form I–130: Preparation cost = biometric requirement, DHS expects this rule. The additional fees and ($30.74 × 1.5 hours) = $46.12; USCIS fee to that the proposed rule will induce an preparation costs are shown in Table 6. cover processing costs = $420.00. Total increase in demand for immediate In determining the preparation cost cost = $466.12. relative visas, which will generate new for the forms, different labor rates were 2. Cost of Form I–601A: Preparation cost = fees paid to the USCIS and DOS. As the used depending on the citizenship ($10.44 × 1.5 hours) = $15.66; USCIS fee to status of the petitioner. If the form is cover processing costs = $585.00. Total only new requirement imposed by this completed by the alien immediate cost = $600.66. rule on provisional waiver applicants relative (Form I–601A), the loaded 3. Cost of Form I–864: Preparation cost = compared with the current waiver minimum wage of $10.44 per hour was ($30.74 × 6.0 hours) = $184.46; DOS fee to process is biometrics, fees collected for cover processing costs = $88.00. Total used. If the form is completed by a U.S. filing forms that are already required cost = $272.46. citizen, we used the mean hourly wage (such as the Form I–130) are not costs for ‘‘all occupations’’ as reported by the 4. Cost of Immigrant Visa Processing Fees: of this rule. The new fees are those Bureau of Labor Statistics and then DOS fee to cover processing costs = $330; generated by the additional demand adjusted that wage upward to account USCIS fee to cover processing costs = $165. shown in Table 4 and are transfers made for the costs of employee benefits, such Total cost = $495.00. by applicants to USCIS and DOS to as annual leave, for a fully loaded 5. Cost of Visa Security fee: Preparation cover the cost of processing the forms. hourly wage rate of $30.74.29 The times cost = DOS fee to cover processing In addition to the fees, there are to complete the forms are based on the costs = $74.00. nominal costs associated with USCIS form instructions for the completing the forms. We estimate the Based on the above, the total costs per individual forms. amount of these fees and their These costs are calculated by the application: ($466.12 + 600.66 + 272.46 associated preparation costs to give a formula: + 495.00 + 74.00) = $1,908.24.TKELLEY on DSK3SPTVN1PROD with PROPOSALS5 26 U.S. Department of Labor, Bureau of Labor viewed online at http://www.bls.gov/news.release/ 29 The 30.74 rate is calculated by multiplying the Statistics, Economic News Release, Table 1. ecec.t01.htm. $21.35 average hourly wage for all occupations May 27 ($10.44 per hour × 3.5 hours) + ($0.51 per mile Employer costs per hour worked for employee 2010 (available at http://www.bls.gov/oes/current/ compensation and costs as a percent of total × 50 miles) = $62.04. oes_nat.htm#00-0000) by the 1.44 fully loaded 28 The proposed Application for a Provisional compensation: Civilian workers, by major multiplier. occupational and industry group, March 2011, Waiver of Inadmissibility, Form I–601A, would carry the same USCIS fee as Form I–601. 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  • 30. Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 19919 TABLE 6—COSTS FOR PREPARING AND FILING USCIS AND DOS FORMS [Table 3 multiplied by $1,908.24] Additional preparation costs and filing fees with current constrained demand of Year 25 Percent 50 Percent 75 Percent 90 Percent Year 1 ...................................................................................... $9,381,448 $18,762,897 $28,144,345 $33,773,214 Year 2 ...................................................................................... 9,608,865 19,217,730 28,826,595 34,591,914 Year 3 ...................................................................................... 9,841,834 19,683,667 29,525,501 35,430,601 Year 4 ...................................................................................... 10,080,355 20,160,710 30,241,065 36,289,278 Year 5 ...................................................................................... 10,324,660 20,649,320 30,973,979 37,168,775 Year 6 ...................................................................................... 10,574,980 21,149,960 31,724,940 38,069,927 Year 7 ...................................................................................... 10,831,315 21,662,630 32,493,945 38,992,734 Year 8 ...................................................................................... 11,093,896 22,187,793 33,281,689 39,938,027 Year 9 ...................................................................................... 11,362,724 22,725,449 34,088,173 40,905,808 Year 10 .................................................................................... 11,638,030 23,276,060 34,914,091 41,896,909 10 Year Totals Undiscounted ........................................... 104,738,108 209,476,215 314,214,323 377,057,188 10 Year Totals Discounted at 7.0 percent ....................... 72,591,182 145,182,365 217,773,547 261,328,257 10 Year Totals Discounted at 3.0 percent ....................... 88,823,781 177,647,563 266,471,344 319,765,613 Note: Sums may not total due to rounding. The totals in Table 6 are calculated by processed and the additional expense of reduce the time spent in their home multiplying the induced demand shown supporting two households while country, this rule would allow for such in Table 4 by the $1,908.24 shown awaiting an immigrant visa. Such costs existing costs to be reduced and these above. We acknowledge there are are highly variable and depend on the savings represent a benefit of this rule. additional costs to the existing process, circumstances of the specific petitioner. The total cost to applicants is shown such as travel from the United States to We did not estimate the impacts of these in Table 7 as the sum of Table 5 and the immediate relative’s home country variable costs. To the extent that this where the immigrant visa is being rule allows immediate relatives to Table 6. TABLE 7—TOTAL COSTS TO APPLICANTS OF THE PROPOSED RULE [Table 5 plus Table 6] Estimated total cost current constrained demand of Year 25 Percent 50 Percent 75 Percent 90 Percent Year 1 ...................................................................................... $12,995,900 $23,100,239 $33,204,577 $39,267,181 Year 2 ...................................................................................... 13,310,935 23,660,213 34,009,492 40,219,059 Year 3 ...................................................................................... 13,633,661 24,233,860 34,834,059 41,194,178 Year 4 ...................................................................................... 13,964,079 24,821,178 35,678,278 42,192,538 Year 5 ...................................................................................... 14,302,508 25,422,738 36,542,968 43,215,105 Year 6 ...................................................................................... 14,649,271 26,039,109 37,428,947 44,262,850 Year 7 ...................................................................................... 15,004,366 26,670,291 38,336,216 45,335,771 Year 8 ...................................................................................... 15,368,114 27,316,854 39,265,594 46,434,838 Year 9 ...................................................................................... 15,740,515 27,978,798 40,217,080 47,560,050 Year 10 .................................................................................... 16,121,890 28,656,692 41,191,494 48,712,375 10 Year Totals Undiscounted ........................................... 145,091,238 257,899,971 370,708,705 438,393,945 10 Year Totals Discounted at 7.0 percent ....................... 100,558,858 178,743,575 256,928,293 303,839,123 10 Year Totals Discounted at 3.0 percent ....................... 123,045,496 218,713,620 314,381,745 371,782,619 Note: Sums may not total due to rounding. Costs to the Federal Government visa waiver process. The primary under the current process, and so include the possible costs of additional benefits of the proposed changes are cannot predict how the time spent apart adjudication personnel associated with qualitative and result from reduced would be reduced under the proposed increased volume and the associated separation time for U.S. citizens and provisional waiver process. equipment (computers, telephones) and their alien relatives. In addition to the As a result of streamlining the occupancy costs (if additional space is obvious humanitarian and emotional unlawful presence waiver process, there required). However, we expect these benefits derived from family also would be efficiencies realized by costs to be offset by the additional fee reunification, there also would be both USCIS and DOS. The proposedTKELLEY on DSK3SPTVN1PROD with PROPOSALS5 revenue collected for form processing. significant financial benefits accruing to process would enable USCIS to process Consequently, this rule does not impose the U.S. citizen due to the shortened and adjudicate the provisional unlawful additional costs on the Federal period he or she would have to presence waivers domestically. As a Government. financially support the alien relative result, USCIS could move a large part of 6. Benefits abroad. DHS is currently unable to its workload to Service Centers or field estimate the average duration of time an offices with resources that are less The benefits of the proposed rule are immediate relative must spend abroad expensive than overseas staffing the result of streamlining the immigrant while awaiting waiver adjudication resources and that are flexible enough to VerDate Mar<15>2010 19:28 Mar 30, 2012 Jkt 226001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 E:FRFM02APP5.SGM 02APP5
  • 31. 19920 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules accommodate filing surges. In addition, performance of the functions of the agency, small businesses, small governmental the proposed process would allow DOS including whether the information will have jurisdictions, and small organizations to review these cases once, as opposed practical utility; during the development of their rules. to the current unlawful presence (2) Evaluate the accuracy of the agency’s The term ‘‘small entities’’ comprises estimate of the burden of the collection of process where these cases are reviewed information, including the validity of the small businesses, not-for-profit twice, at a minimum. DHS anticipates methodology and assumptions used; organizations that are independently that the new process will make the (3) Enhance the quality, utility, and clarity owned and operated and are not immigrant visa process more efficient. of the information to be collected; and dominant in their fields, and DHS encourages public comment on (4) Minimize the burden of the collection governmental jurisdictions with the benefits, both quantitative and of information on those who are to respond, populations of less than 50,000. qualitative, of this proposed rule. including through the use of appropriate DHS has reviewed this regulation in automated, electronic, mechanical, or other accordance with the Regulatory D. Executive Order 13132 technological collection techniques or other Flexibility Act and certifies that this This proposed rule will not have forms of information technology, e.g., permitting electronic submission of rule will not have a significant substantial direct effects on the States, economic impact on a substantial on the relationship between the responses. number of small entities. The factual National Government and the States, or Overview of information collection: basis for this determination is that this on the distribution of power and a. Type of information collection: rule directly regulates individuals who responsibilities among the various Revised information collection. are the immediate relatives of U.S. levels of government. Therefore, in b. Abstract: This collection will be citizens seeking to apply for an accordance with section 6 of Executive used by individuals who file a request unlawful presence waiver of Order 13132, it is determined that this for a provisional unlawful presence inadmissibility in order to be eligible to rule does not have sufficient federalism waiver of the inadmissibility grounds obtain an immigrant visa outside the implications to warrant the preparation under INA section 212(a)(9)(B)(v), 8 United States. The impact is on these of a federalism summary impact U.S.C. 1182(a)(9)(B)(v). Such persons as individuals, so that they are statement. individuals are subject to biometric not, for purposes of the Regulatory E. Executive Order 12988 Civil Justice collection in connection with the filing Flexibility Act, within the definition of Reform of the waiver. small entities established by 5 U.S.C. c. Title of Form/Collection: Section 3(c) of Executive Order 12988 601(6). Application for Provisional Unlawful requires Executive agencies to review Presence Waiver. List of Subjects regulations in light of applicable d. Agency form number, if any, and standards in section 3(a) and section 8 CFR Part 103 the applicable component of the 3(b) to determine whether they are met Department of Homeland Security Administrative practice and or it is unreasonable to meet one or sponsoring the collection: Form I–601A, procedures, Authority delegations more of them. DHS has completed the U.S. Citizenship and Immigration (government agencies), Freedom of required review and determined that, to Services. Information; Privacy, Reporting and the extent permitted by law, this final e. Affected public who will be asked recordkeeping requirements, Surety rule meets the relevant standards of or required to respond: Individuals or bonds. Executive Order 12988. Households: Individuals who are 8 CFR Part 212 F. Paperwork Reduction Act immediate relatives of U.S. citizens and who are applying from within the Administrative practice and Under the Paperwork Reduction Act United States for a waiver of procedure, Aliens, Immigration, of 1995 (PRA), Public Law 104–13, all inadmissibility under INA section Passports and visas, Reporting and Departments are required to submit to 212(a)(9)(B)(v) prior to obtaining an recordkeeping requirements. the Office of Management and Budget immigrant visa abroad. Accordingly, DHS proposes to amend (OMB), for review and approval, any f. An estimate of the total numbers of chapter I of title 8 of the Code of Federal reporting and recordkeeping respondents: 38,277. Regulations as follows. requirements inherent in a rule. See g. Hours per response: 1.5 hours per Public Law 104–13, 109 Stat. 163 (May response. PART 103—POWERS AND DUTIES; 22, 1995). This proposed rule requires h. Total Annual Reporting Burden: AVAILABILITY OF RECORDS that an applicant requesting a 57,416. provisional unlawful presence waiver Comments concerning this form can 1. The authority citation for part 103 complete an Application for Provisional be submitted to Sunday Aigbe, Chief, continues to read as follows: Waiver of Unlawful Presence, Form I– Regulatory Products Division, Office of Authority: 5 U.S.C. 301, 552, 552a; 8 601A. This form is considered an the Executive Secretariat, U.S. U.S.C. 1101, 1103, 1304, 1356, 1365b; 31 information collection and is covered Citizenship and Immigration Services, U.S.C. 9701; Pub. L. 107–296, 116 Stat. 2135 under the PRA. DHS will be submitting Department of Homeland Security, 20 (6 U.S.C. 1 et seq. ); E.O. 12356, 47 FR 14874, an information collection request to Massachusetts Avenue NW., 15557, 3 CFR, 1982 Comp., p.166; 8 CFR part OMB for review and approval under the 2. Washington, DC 20529–2020.TKELLEY on DSK3SPTVN1PROD with PROPOSALS5 PRA. 2. Section 103.7 is amended by Accordingly, DHS is requesting G. Regulatory Flexibility Act revising paragraph (b)(1)(i)(AA) to read comments on this information The Regulatory Flexibility Act of 1980 as follows: collection for 60 days until June 1, 2012. (RFA), 5 U.S.C. 601–612, as amended by Comments on this information the Small Business Regulatory § 103.7 Fees. collection should address one or more Enforcement Fairness Act of 1996, * * * * * of the following four points: Public Law 104–121 (March 29, 1996), (b) * * * (1) Evaluate whether the collection of requires Federal agencies to consider (1) * * * information is necessary for the proper the potential impact of regulations on (i) * * * VerDate Mar<15>2010 19:28 Mar 30, 2012 Jkt 226001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 E:FRFM02APP5.SGM 02APP5
  • 32. Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 19921 (AA) Application for Waiver of are specified in the application for paragraph (e)(2) of this section. USCIS Ground of Inadmissibility (Form I–601) waiver. will only approve such provisional and Application for Provisional (ii) Except for K–1 and K–2 unlawful presence waiver applications Unlawful Presence Waiver (I–601A). For nonimmigrants and aliens lawfully in accordance with the conditions filing an application for waiver of admitted for permanent residence on a outlined in paragraph (e) of this section. grounds of inadmissibility or an conditional basis, an immigrant waiver Consistent with section 212(a)(9)(B)(v) application for a provisional unlawful of inadmissibility is valid indefinitely, of the Act, the decision whether to presence waiver: $585. even if the applicant later abandons or approve a provisional unlawful * * * * * loses lawful permanent resident status. presence waiver application is (iii) For a K–1 or K–2 nonimmigrant, discretionary. PART 212—DOCUMENTARY approval of the waiver is conditioned on (2) Eligible aliens. Except as provided REQUIREMENTS; NONIMMIGRANTS; the K–1 nonimmigrant marrying the in paragraph (e)(3) of this section, an WAIVERS; ADMISSION OF CERTAIN petitioner; if the K–1 nonimmigrant alien may be eligible to apply for and INADMISSIBLE ALIENS; PAROLE marries the K nonimmigrant petitioner, receive a provisional unlawful presence the waiver becomes valid indefinitely, waiver for the grounds of 3. The authority citation for part 212 subject to paragraph (a)(4)(iv) of this inadmissibility under section continues to read as follows: section, even if the applicant later 212(a)(9)(B)(i)(I) or (II) of the Act if he Authority: 8 U.S.C. 1101 and note, 1102, abandons or loses lawful permanent or she: 1103, 1182 and note, 1184, 1187, 1223, 1225, resident status. If the K–1 does not (i) Is present in the United States at 1226, 1227, 1255, 1359; 8 U.S.C. 1185 note marry the K nonimmigrant petitioner, the time of filing the application for a (section 7209 of Pub. L. 108–458); 8 CFR part the K–1 and K–2 nonimmigrants remain provisional unlawful presence waiver, 2. Section 212.1(q) also issued under section and for biometrics collection at a USCIS inadmissible for purposes of any 702, Pub. L. 110–229, 122 Stat. 754, 854. Application Support Center; application for a benefit on any basis 4. Section 212.7 is amended by: other than the proposed marriage (ii) Upon departure, would be a. Revising paragraphs (a)(1), (a)(3), between the K–1 and the K inadmissible only under section and (a)(4); and nonimmigrant petitioner. 212(a)(9)(B)(i) of the Act at the time of b. Adding paragraph (e). (iv) For an alien lawfully admitted for the immigrant visa interview; The revisions and addition read as permanent residence on a conditional (iii) Qualifies as an immediate relative follows: basis under section 216 of the Act, under section 201(b)(2)(A)(i) of the Act; removal of the conditions on the alien’s (iv) Is the beneficiary of an approved § 212.7 Waivers of certain grounds of status renders the waiver valid immediate relative petition; inadmissibility. indefinitely, even if the applicant later (v) Has a case pending with the (a)(1) Application. Except as provided abandons or loses lawful permanent Department of State based on the by 8 CFR 212.7(e), an applicant for an resident status. Termination of the approved immediate relative petition immigrant visa, adjustment of status, or alien’s status as an alien lawfully and has paid the immigrant visa a K or V nonimmigrant visa who is admitted for permanent residence on a processing fee as evidenced by a State inadmissible under any provision of conditional basis also terminates the Department Visa Processing Fee section 212(a) of the Act for which a validity of a waiver of inadmissibility Receipt; waiver is available under section 212 of that was granted to the alien. Separate (vi) Will depart from the United States the Act may apply for the related waiver notification of the termination of the to obtain the immediate relative by filing the form designated by USCIS, waiver is not required when an alien is immigrant visa; and with the fee prescribed in 8 CFR (vii) Meets the requirements for a notified of the termination of residence 103.7(b)(1), and in accordance with the waiver provided in section under section 216 of the Act, and no form instructions. Certain immigrants 212(a)(9)(B)(v) of the Act, except that appeal will lie from the decision to may apply for a provisional unlawful the alien must show extreme hardship terminate the waiver on this basis. If the presence waiver of inadmissibility as to his or her U.S. citizen spouse or alien challenges the termination in specified in 8 CFR 212.7(e). parent. removal proceedings, and the removal (3) Ineligible Aliens. Notwithstanding * * * * * proceedings end in the restoration of the paragraph (e)(2) of this section, an alien (3) Decision. If the waiver application alien’s status, the waiver will become is ineligible to apply for or receive a is denied, USCIS will provide a written effective again. provisional unlawful presence waiver decision and notify the applicant and (v) Nothing in this subsection under paragraph (e) of this section if: his or her attorney or accredited precludes USCIS from reopening and (i) USCIS has reason to believe that representative and will advise the reconsidering a decision if the decision the alien may be subject to grounds of applicant of appeal procedures, if any, is determined to have been made in inadmissibility other than unlawful in accordance with 8 CFR 103.3. The error. presence under section 212(a)(9)(B)(i)(I) denial of a provisional unlawful * * * * * or (II) of the Act at the time of the presence waiver is governed by 8 CFR (e) Provisional Unlawful Presence immigrant visa interview with the 212.7(e). Waivers of Inadmissibility for Certain Department of State; (4) Validity. (i) A provisional Immediate Relatives. The provisions of (ii) The alien is under the age of 17;TKELLEY on DSK3SPTVN1PROD with PROPOSALS5 unlawful presence waiver granted this paragraph (e) are applicable to (iii) The alien does not have a case according to paragraph (e) of this certain aliens who are pursuing pending with the Department of State, section is valid subject to the terms and consular immigrant visa processing as based on the approved immediate conditions as specified in paragraph (e). an immediate relative of a U.S. citizen. relative petition, and has not paid the In any other case, approval of an (1) In general. USCIS may adjudicate immigrant visa processing fee; immigrant waiver of inadmissibility applications for a provisional unlawful (iv) The alien has been scheduled for under this section applies only to the presence waiver of inadmissibility an immigrant visa interview at a U.S. grounds of inadmissibility, and the based on section 212(a)(9)(B)(v) of the Embassy or Consulate abroad at the time related crimes, events, or incidents that Act filed by eligible aliens described in the application is received by USCIS; VerDate Mar<15>2010 19:28 Mar 30, 2012 Jkt 226001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 E:FRFM02APP5.SGM 02APP5
  • 33. 19922 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules (v) The alien is in removal presence waiver under this section will (10) Appeals and Motions to Reopen. proceedings that have not been be required to provide biometrics in There is no administrative appeal from terminated or dismissed; accordance with 8 CFR 103.16 and a denial of a request for a provisional (vi) The alien has not had the 103.17, as specified on the form unlawful presence waiver under this charging document (Notice to Appear) instructions. section. The alien may not file, pursuant to initiate removal proceedings (ii) Failure to appear for biometrics to 8 CFR 103.5, a motion to reopen or cancelled; capture. If an alien fails to appear for reconsider a denial of a provisional (vii) The alien is in removal biometrics capture, the provisional unlawful presence waiver application proceedings that have been unlawful presence waiver application under this section. administratively closed but not will be considered abandoned and (11) Approval and Conditions. A subsequently reopened for the issuance denied pursuant to 8 CFR 103.2(b)(13). provisional unlawful presence waiver of a final voluntary departure order; The alien may not appeal or file a granted under this section: (viii) The alien is subject to a final motion to reopen or reconsider an (i) Does not take effect unless, and order of removal issued under section abandonment denial under 8 CFR 103.5. until, the alien who applied for and 235, 238, or 240 of the Act or any other (6) Burden of proof. The alien has the obtained the provisional unlawful provision of law (including an in burden to establish eligibility for the presence waiver: absentia removal order under section provisional unlawful presence waiver as (A) Departs from the United States; 240(b)(5) of the Act); described in this paragraph of this (B) Appears for an immigrant visa (ix) The alien is subject to section, and under section interview at a U.S. Embassy or reinstatement of a prior removal order 212(a)(9)(B)(v) of the Act, including that consulate; and under section 241(a)(5) of the Act; the alien merits a favorable exercise of (C) Is determined to be admissible and (x) The alien has a pending the Secretary’s discretion. otherwise eligible for an immigrant visa application with USCIS for lawful (7) Adjudication. USCIS will by a Department of State consular permanent resident status; or adjudicate the provisional unlawful officer in light of the approved (xi) The alien has previously filed a presence waiver application in provisional unlawful presence waiver. provisional unlawful presence waiver accordance with this paragraph of this (ii) Waives the alien’s inadmissibility application; section and section 212(a)(9)(B)(v) of the under section 212(a)(9)(B) of the Act (4) Filing. (i) An application for a Act. USCIS also may require the alien only for purposes of the application for provisional waiver of the grounds of and the U.S. citizen petitioner to appear an immigrant visa and admission to the inadmissibility for the unlawful for an interview pursuant to 8 CFR United States as an immediate relative presence bars under section 103.2(b)(9). If USCIS finds that the alien of a U.S. citizen. 212(a)(9)(B)(i)(I) or (II) of the Act must does not meet the eligibility (iii) Does not waive any ground of be filed in accordance with 8 CFR part requirements for the provisional inadmissibility other than the grounds 103 and on the form designated by unlawful presence waiver as described of inadmissibility under section USCIS. The prescribed fee under 8 CFR in this paragraph (e), USCIS will deny 212(a)(9)(B)(i)(I) or (II) of the Act. 103.7(b)(1) and supporting the waiver application. Notwithstanding (12) Validity. Until the provisional documentation must be submitted in 8 CFR 103.2(b)(16), USCIS may deny an unlawful presence waiver takes full accordance with the form instructions. application for a provisional unlawful effect as provided in paragraph (e)(11) of (ii) An application for a provisional presence waiver without prior issuance this section, USCIS may reopen and unlawful presence waiver application of a request for evidence or notice of reconsider its decision at any time. will be rejected and the fee and package intent to deny. Once a provisional unlawful presence returned to the alien if the alien: (A) Fails to pay the required fees for (8) Notice of Decision. USCIS will waiver takes full effect as defined in the waiver application or to pay the notify the alien or the alien’s attorney of paragraph (e)(11), the period of correct fee; record or accredited representative of unlawful presence for which the (B) Fails to sign the waiver the decision in accordance with 8 CFR provisional unlawful presence waiver is application; 103.2(b)(19). USCIS also may notify the granted is waived permanently and, in (C) Fails to provide his or her family Department of State. Denial of an accordance with and subject to name, domestic home address, and date application for a provisional unlawful paragraph (a)(4) of this section, the of birth; presence waiver is without prejudice to waiver is valid indefinitely. (D) Is under the age of 17 years; the alien filing a waiver application (13) Automatic Revocation. The (E) Does not include evidence of an under paragraph (a)(1) of this section approval of a provisional unlawful approved petition that classifies the after the immigrant visa interview presence waiver is revoked alien as an immediate relative of a U.S. overseas. Accordingly, denial of a automatically if: citizen; request for a provisional unlawful (i) The consular officer determines at (F) Does not include a copy of the fee presence waiver is not a final agency the time of the immigrant visa interview receipt evidencing that the alien has action for purposes of section 10(c) of that the alien is inadmissible on paid the immigrant visa processing fee the Administrative Procedure Act, 5 grounds other than section to DOS; U.S.C. 704. 212(a)(9)(B)(i)(I) or (II) of the Act; (G) Has indicated on the provisional (9) Withdrawal of waiver requests. An (ii) The immigrant visa petitionTKELLEY on DSK3SPTVN1PROD with PROPOSALS5 unlawful presence waiver application alien may withdraw his or her request approval associated with the provisional that an immigrant visa interview has for a provisional unlawful presence unlawful presence waiver is at any time been scheduled with DOS; or waiver at any time before the final revoked, withdrawn, or rendered (H) Has not indicated on the decision, but the alien will not be invalid but not otherwise reinstated for provisional unlawful presence waiver permitted to later file a new provisional humanitarian reasons or converted to a application that the qualifying relative unlawful presence waiver. Once the widow or widower petition; is a U.S. citizen spouse or parent. case is withdrawn, USCIS will close the (iii) The immigrant visa registration is (5) Biometrics. (i) All aliens who case and notify the alien and his or her terminated in accordance with section apply for a provisional unlawful attorney or accredited representative. 203(g) of the Act, and has not been VerDate Mar<15>2010 19:28 Mar 30, 2012 Jkt 226001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 E:FRFM02APP5.SGM 02APP5
  • 34. Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 19923 reinstated in accordance with section without being inspected and admitted 203(g) of the Act; or or paroled. (iv) The alien, at any time, reenters or * * * * * attempts to reenter the United States Janet Napolitano, Secretary. [FR Doc. 2012–7698 Filed 3–30–12; 8:45 am] BILLING CODE 9111–97–PTKELLEY on DSK3SPTVN1PROD with PROPOSALS5 VerDate Mar<15>2010 19:28 Mar 30, 2012 Jkt 226001 PO 00000 Frm 00023 Fmt 4701 Sfmt 9990 E:FRFM02APP5.SGM 02APP5