[Federal Register Volume 77, Number 5 (Monday, January 9, 2012)]
[Proposed Rules]
[Pages 1040-1043]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-140]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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 

  Federal Register / Vol. 77, No. 5 / Monday, January 9, 2012 / 
Proposed Rules  

[[Page 1040]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 212

RIN 1615-ZB10


Provisional Waivers of Inadmissibility for Certain Immediate 
Relatives of U.S. Citizens

AGENCY: U.S. Citizenship and Immigration Services, Department of 
Homeland Security.

ACTION: Notice of intent.

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SUMMARY: U.S. Citizenship and Immigration Services (USCIS) intends to 
change its current process for filing and adjudication of certain 
applications for waivers of inadmissibility filed in connection with an 
immediate relative immigrant visa application. Specifically, USCIS is 
considering regulatory changes that will allow certain immediate 
relatives of U.S. citizens to request provisional waivers under section 
212(a)(9)(B)(v) of the Immigration and Nationality Act of 1952, as 
amended (INA or Act), 8 U.S.C. 1182(a)(9)(B)(v), prior to departing the 
United States for consular processing of their immigrant visa 
applications. An alien would be able to obtain such a waiver only if a 
Petition for Alien Relative, Form I-130, is filed by a U.S. citizen on 
his or her behalf and that petition has been approved, thereby 
classifying the alien as an ``immediate relative'' for purposes of the 
immigration laws, and he or she demonstrates that the denial of the 
waiver would result in extreme hardship to the alien's U.S. citizen 
spouse or parent ``qualifying relative.'' The qualifying relative for 
purposes of the waiver is not necessarily the immediate relative who 
filed the immigrant visa petition on the alien relative's behalf.

FOR FURTHER INFORMATION CONTACT: Roselyn Brown-Frei, Office of Policy 
and Strategy, U.S. Citizenship and Immigration Services, Department of 
Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529-
2099, telephone (202) 272-1470 (this is not a toll free number).

SUPPLEMENTARY INFORMATION: 

I. Background

A. Overview

    The proposed process is intended to reduce the time that U.S. 
citizens are separated from immediate relatives who are required to 
remain outside the United States for immigrant visa application 
processing and during the adjudication of waivers of inadmissibility. 
Through this change, USCIS does not intend to modify the standard for 
assessing eligibility for these waivers, including whether the denial 
of the waiver would result in extreme hardship to a U.S. citizen spouse 
or parent (``qualifying relative''). For purposes of the waiver under 
section 212(a)(9)(B)(v) of the Act, a ``qualifying relative'' is a U.S. 
citizen spouse or parent or a lawful permanent resident spouse or 
parent who would suffer extreme hardship if their relative were not 
allowed to immigrate. For purposes of this provisional waiver program, 
DHS intends to limit who may participate in this program to immediate 
relatives who can demonstrate extreme hardship to a U.S. citizen spouse 
or parent. Even if they obtain a provisional waiver, eligible aliens 
who are required to obtain a visa through consular processing would 
still be required to depart from the United States to apply for an 
immigrant visa. The purpose of the new process is to reduce the time 
that U.S. families remain separated while their relative proceeds 
through the immigrant visa process.
    Certain grounds of inadmissibility can bar aliens from being 
admitted to the United States or obtaining an immigrant visa, 
preventing U.S. citizens from reuniting with their immediate relatives. 
However, the Secretary of Homeland Security, through USCIS, may waive 
some of those grounds. An alien who is subject to one or more grounds 
of inadmissibility must obtain a waiver, if available, from USCIS 
before he or she may be issued an immigrant visa by a Department of 
State consular officer at a U.S. embassy or consulate overseas.
    The bars to admission under section 212(a)(9)(B)(i)(I) and (II) of 
the INA, 8 U.S.C. 1182(a)(9)(B)(i)(I) and (II), based on accrual of 
unlawful presence in the United States, comprise one such ground. 
Typically, under current processes, aliens who are immediate relatives 
of U.S. citizens applying for immigrant visas at Department of State 
consular posts must apply for waivers of unlawful presence while 
outside the United States after a finding of inadmissibility is made by 
a Department of State consular officer in conjunction with their 
immigrant visa applications. As a result, U.S. citizen petitioners are 
often separated for long periods of time from their immediate relatives 
who are applying for immigrant visas and have accrued a certain period 
of unlawful presence in the United States. This revised process, which 
eliminates the time-consuming interchange between the Department of 
State and USCIS, would significantly reduce the amount of time that 
American families will be separated from their immediate relatives. 
USCIS also believes that efficiencies can be gained through this 
revised process for both the U.S. Government and most applicants.
    USCIS intends to limit consideration for the provisional waiver to 
aliens who qualify for classification as immediate relatives of U.S. 
citizens, who have a U.S. citizen spouse or parent who would suffer 
extreme hardship if the waiver were denied, and for whom the sole basis 
for inadmissibility is unlawful presence in the United States of more 
than 180 days. USCIS would grant a provisional waiver if the alien 
meets the eligibility requirements described in this Notice, including 
demonstrating that the applicant's qualifying U.S. citizen spouse or 
parent would suffer extreme hardship and that the applicant warrants a 
favorable exercise of discretion. The provisional waiver would be 
granted before the alien leaves the United States to attend his or her 
immigrant visa interview with a consular officer. The provisional 
waiver, however, would not become effective unless and until the alien 
departs from the United States. If the alien is otherwise eligible for 
the immigrant visa, the consular officer may then approve the issuance 
of the visa so that the alien may proceed to immigrate to the United 
States for permanent residence.
    This notice of intent generally describes the proposal that USCIS 
is considering. USCIS will further develop, and ultimately finalize, 
this proposal through the rulemaking process. This effort is consistent 
with

[[Page 1041]]

Executive Order 13563's call for agencies to ``consider how best to 
promote retrospective analysis of rules that may be outmoded, 
ineffective, insufficient, or excessively burdensome, and to modify, 
streamline, expand, or repeal them in accordance with what has been 
learned.'' Do not send an application requesting a provisional waiver 
under the procedures under consideration in this notice. Any 
application requesting this new process will be rejected, and the 
application package returned to the applicant, including any fees, 
until a final rule is issued and the change becomes effective.

B. Authority

    The Homeland Security Act of 2002, Public Law 107-296, section 102, 
116 Stat. 2135, 6 U.S.C. 112, and section 103 of the INA, 8 U.S.C. 
1103, charge the Secretary of Homeland Security with administration and 
enforcement of the immigration and naturalization laws. The Secretary 
would effectuate these proposed changes under the broad authority to 
administer the Department of Homeland Security and the authorities 
provided under the Homeland Security Act of 2002, the immigration and 
nationality laws, and other delegated authority.

C. Grounds of Inadmissibility

    U.S. immigration laws provide mechanisms for U.S. citizens to 
petition for certain family members for admission to the United States 
for purposes of family reunification. At the same time, however, the 
immigration laws prescribe acts, conditions, and conduct that bar 
aliens, including immediate relatives of U.S. citizens, from being 
admitted to the United States or obtaining an immigrant visa. Such 
acts, conditions, and conduct include certain criminal offenses, public 
health concerns, fraud, misrepresentation, failure to possess proper 
documents, accrual of more than 180 days of unlawful presence in the 
United States, and terrorism. The grounds of inadmissibility are set 
forth in section 212(a) of the INA, 8 U.S.C. 1182(a).
    The Secretary of Homeland Security has the discretion to waive 
certain inadmissibility grounds, upon the filing of a request by an 
alien who meets the relevant statutory requirements. If the Secretary, 
through USCIS, grants such a waiver, the waived ground will no longer 
bar the alien's admission, readmission, or immigrant visa eligibility 
based on that specific ground of inadmissibility.
    One of the inadmissibility grounds is described in section 
212(a)(9)(B)(i) of the Act, 8 U.S.C. 1182(a)(9)(B)(i). Under part (I) 
of this provision, an alien who was unlawfully present in the United 
States for more than 180 days but less than one year, and who then 
departs voluntarily from the United States before the commencement of 
removal proceedings, will be inadmissible for three years from the date 
of departure. Under part (II) of the same provision, an alien who was 
unlawfully present for one year or more and then departs before, 
during, or after removal proceedings, will be inadmissible for ten 
years from the date of the departure.
    The three- and ten-year unlawful presence bars do not take effect 
unless and until an alien departs from the United States. By statute, 
aliens are not considered to be accruing unlawful presence for purposes 
of section 212(a)(9)(B)(i) if they fall into certain categories. For 
example, aliens do not accrue unlawful presence while they are under 18 
years of age. See INA section 212(a)(9)(B)(iii)(I), 8 U.S.C. 
1182(a)(9)(B)(i)(iii)(I). Similarly, individuals with pending asylum 
claims generally are not considered to be accruing unlawful presence 
while their applications are pending. See INA section 
212(a)(9)(B)(iii)(II), 8 U.S.C. 1182(a)(9)(B)(i)(iii)(II). Battered 
women and children and victims of a severe form of trafficking in 
persons are not subject to the section 212(a)(9)(B)(i) ground of 
inadmissibility at all if they demonstrate that there was a substantial 
connection between their victimization and their unlawful presence. See 
INA 212(a)(9)(B)(iii)(IV)-(V), 8 U.S.C. 1182(a)(9)(B)(i)(iii)(IV)-(V). 
Aliens who are subject to the unlawful presence bars must apply for and 
be granted a waiver in order to receive an immigrant visa and be 
admitted to the United States.
    The Secretary of Homeland Security has the discretion to waive the 
three- and ten-year unlawful presence bars if the alien is seeking 
admission as an immigrant and if the alien demonstrates that the denial 
of his or her admission to the United States would cause ``extreme 
hardship'' to the alien's qualifying relative. See INA section 
212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v). The qualifying relative for 
purposes of the waiver is not necessarily the relative who filed the 
immigrant visa petition on the alien relative's behalf. For example, an 
alien applicant's U.S. citizen spouse may have filed the immigrant visa 
petition on the applicant's behalf, but the applicant's unlawful 
presence waiver application may be based on extreme hardship to the 
applicant's U.S. citizen parent. Because the granting of a waiver is 
discretionary, the alien also must establish that he or she merits a 
favorable exercise of discretion.

D. Current Process and Problems

    An alien who must apply for permanent residence through consular 
immigrant visa processing outside the United States must appear for an 
interview with a Department of State consular officer abroad. 
Currently, if the consular officer determines that the alien is subject 
to the three- or ten-year bar, the consular officer advises the alien 
that he or she is eligible to apply for a section 212(a)(9)(B)(v) 
waiver by filing a Form I-601, Application for Waiver of Grounds of 
Inadmissibility, with USCIS. Under current rules, an individual is not 
permitted to apply for the section 212(a)(9)(B)(v) waiver before the 
consular officer has made the inadmissibility determination.
    Once the Form I-601 is filed, in most cases, the file is 
transferred from the Department of State to USCIS. USCIS adjudicates 
that waiver request while the alien remains outside the United States 
and awaits a decision. If USCIS approves the waiver, USCIS notifies the 
Department of State, and the Department of State may then issue the 
immigrant visa if the applicant is otherwise eligible. If the waiver is 
denied, the alien may appeal the decision to the USCIS Administrative 
Appeals Office and, if the denial is upheld, the alien must remain 
outside the United States for three or ten years before being able to 
reapply for an immigrant visa. However, a denial does not preclude the 
alien from filing another Form I-601 in the future.
    The three- and ten-year unlawful presence bars under section 
212(a)(9)(B)(i)(I) and (II) of the Act do not apply unless and until 
the applicant departs from the United States. At the same time, many 
aliens who would trigger these bars if they depart from the United 
States are, for other reasons, statutorily ineligible to apply for 
adjustment of status to lawful permanent residence while remaining in 
the United States. Consequently, they must depart to regularize their 
immigration status by applying for their immigrant visas at a U.S. 
embassy or consulate abroad. The action required to regularize the 
status of an alien, departure from the United States, therefore is the 
very action that triggers the section 212(a)(9)(B)(i) inadmissibility 
that bars that alien from obtaining the immigrant visa.

[[Page 1042]]

II. Proposed Waiver Process

A. Proposed Process

    The proposed change would create a more streamlined and efficient 
process for waiver applicants whose sole inadmissibility ground is 
unlawful presence, while simultaneously minimizing family separation. 
If the waiver determination, with respect to unlawful presence, were 
made in advance of the immigrant visa interview and the applicant 
otherwise were eligible for the immigrant visa, the consular officer 
could simply issue the immigrant visa at the time of the visa 
interview. The new process thus will reduce the movement of the case 
back and forth between the Department of State and USCIS, which 
significantly prolongs the overall process and increases the time that 
U.S. citizens are separated from their immediate family members. 
Additionally, the new process would reduce U.S. Government costs 
associated with the movement of cases, and provide a more efficient 
visa process overall.

B. Affected Visa Categories

    USCIS intends to limit this process change to aliens who are 
immediate relatives of U.S. citizens, as defined in section 
201(b)(2)(A)(i) of the Act, 8 U.S.C. 1151(b)(2)(A)(i), who must depart 
from the United States to obtain immigrant visas, and whose U.S. 
citizen spouse or parent would suffer extreme hardship if the applicant 
were denied admission to the United States. The term ``immediate 
relative'' means the spouse, parent or child (unmarried and under 21 
years old) of a U.S. citizen, except that, in the case of a parent, the 
U.S. citizen son or daughter petitioning for an immigrant visa must be 
at least 21 years old. Certain self-petitioners (i.e., widows/widowers 
of U.S. citizen and their minor unmarried children) may also be 
considered immediate relatives. See INA 201(b)(2)(A)(i), 8 U.S.C. 
1151(b)(2)(A)(i). Individuals applying for a waiver must also establish 
that the grant of the provisional waiver is warranted as a matter of 
discretion.
    Because the focus on family unification of U.S. citizens and their 
immediate relatives is consistent with Congress' prioritization in the 
immigration laws, USCIS has identified immediate relatives of U.S. 
citizens as the class of aliens to consider for this procedural change. 
In addition, Congress did not set an annual limitation for the number 
of immediate relatives of U.S. citizens admitted to the United States. 
Therefore, these relatives always have an immigrant visa immediately 
available, and the visa thus can be processed immediately upon 
approval.

C. Ground of Inadmissibility Considered for Provisional Waiver

    USCIS intends to further limit this procedural change to waivers 
filed by immediate relatives of U.S. citizens whose only ground of 
inadmissibility is the three- or ten-year unlawful presence bar under 
section 212(a)(9)(B)(i)(I) or (II) of the Act, 8 U.S.C. 
1182(a)(9)(B)(i)(I) or (II). Aliens who require waivers for one or more 
additional grounds of inadmissibility, such as fraud or willful 
misrepresentation (section 212(i) waiver) or certain criminal offenses 
(section 212(h) waiver), in conjunction with their immigrant visa 
applications must continue to file a Form I-601 while outside of the 
United States in accordance with the existing process.
    To qualify for the provisional waiver process, an applicant must 
establish not only that he or she is the immediate relative of a U.S. 
citizen, but also that denial of the waiver would result in extreme 
hardship to a qualifying relative. The qualifying relative must be a 
U.S. citizen spouse or parent but does not need to be the U.S. citizen 
petitioner. Only extreme hardship from the denial of a waiver to a 
qualifying U.S. citizen relative makes an alien eligible for the 
provisional waiver process; extreme hardship to the alien himself or 
herself as a result of denial does not make the alien eligible. An 
alien whose waiver application is based on extreme hardship to a lawful 
permanent resident spouse or parent must continue to apply for the 
waiver from outside the United States in accordance with existing 
procedures. Eligible aliens, furthermore, must be the beneficiaries of 
petitions classifying them as immediate relatives of U.S. citizens, and 
thus have visas immediately available. Because the granting of a waiver 
is discretionary, eligible aliens also must establish that they merit a 
favorable exercise of discretion. The standard for assessing whether 
denial of the waiver would result in extreme hardship to the U.S. 
citizen spouse or parent of such aliens will remain unchanged.

D. Adjudication and Decisions

    After filing the Form I-601 with USCIS, DHS envisions that an alien 
seeking a provisional waiver would be required to undergo biometrics 
collection. USCIS would deny the application for a provisional waiver 
if other possible grounds of inadmissibility are found or arise during 
adjudication.
    If the application is approved, USCIS would notify the Department 
of State and the alien of the provisional approval. In all instances, a 
Department of State consular officer would make the formal 
inadmissibility finding during or following the immigrant visa 
interview abroad, and if no other grounds of inadmissibility arise, the 
provisional waiver under section 212(a)(9)(B)(v) of the Act granted by 
USCIS would facilitate immigrant visa issuance. If, however, the 
consular officer finds during adjudication of the immigrant visa 
application that the individual is subject to another ground of 
inadmissibility that can be waived, the alien would need to file 
another waiver application with USCIS.
    This process would not alter the requirement that an alien depart 
from the United States to apply for an immigrant visa. An alien who 
receives a provisional waiver under section 212(a)(9)(B)(v) of the Act 
for the three- or ten-year bar under section 212(a)(9)(B)(i)(I) or (II) 
of the Act would not gain the benefit of such waiver unless he or she 
departs from the United States. The departure from the United States 
would have to take place to activate the provisional waiver under 
section 212(a)(9)(B)(v) of the Act.

E. Excluded Visa Categories

    Aliens who would not be eligible for this provisional waiver 
adjudication process and aliens who are denied provisional approval of 
their waiver requests would continue to follow current agency processes 
for filing and adjudication of waiver requests. Aliens who fall under 
any other family- or employment-based or other visa category or whose 
section 212(a)(9)(B)(v) waiver eligibility would be based on extreme 
hardship to a lawful permanent resident alien relative would not be 
considered for provisional waivers. Aliens who are subject to other 
grounds of inadmissibility or removal also would not be considered for 
provisional waivers. Further, aliens with waiver applications under 
section 212(a)(9)(B)(v) of the Act currently pending in either 
administrative or judicial proceedings would not qualify for this new 
process.

III. Conclusion

    This document outlines the key elements of USCIS's proposed change 
to its current process for filing and adjudication of waivers of 
inadmissibility for unlawful presence for immediate relative of U.S. 
citizens. The focus on family unification of U.S. citizens and their 
immediate relatives is consistent with Congress's prioritization

[[Page 1043]]

in the immigration laws; the new process will reduce the movement of 
the case back and forth between the Department of State and USCIS, 
which significantly prolongs the overall process and increases the time 
that U.S. citizens are separated from their immediate family members. 
The proposed change would affect only when and where certain aliens can 
apply for waivers of the unlawful presence grounds of inadmissibility; 
it would not change the extreme hardship standard for evaluating 
eligibility for the waiver nor would it change whether aliens subject 
to these grounds of inadmissibility must depart the U.S. to apply for 
their immigrant visas. USCIS plans to effectuate this proposal through 
the regulatory process. USCIS will issue a proposed rulemaking that 
will explain the proposal in further detail and that will invite 
comment from all interested parties. Note: Do not send an application 
requesting a provisional waiver under the procedures under 
consideration in this notice. Any application requesting this new 
process will be rejected and the application package returned to the 
applicant, including any fees, until a final rule is issued and the 
change becomes effective.

Janet Napolitano,
Secretary of Homeland Security.
[FR Doc. 2012-140 Filed 1-6-12; 8:45 am]
BILLING CODE 9111-97-P