[Federal Register Volume 77, Number 63 (Monday, April 2, 2012)]
[Proposed Rules]
[Pages 19902-19923]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-7698]



[[Page 19901]]

Vol. 77

Monday,

No. 63

April 2, 2012

Part VI





Department of Homeland Security





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8 CFR Parts 103 and 212





Provisional Unlawful Presence Waivers of Inadmissibility for Certain 
Immediate Relatives; Proposed Rule

  Federal Register / Vol. 77 , No. 63 / Monday, April 2, 2012 / 
Proposed Rules  

[[Page 19902]]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 103 and 212

[CIS No. 2519-2011; DHS Docket No. USCIS-2012-0003]
RIN 1615-AB99


Provisional Unlawful Presence Waivers of Inadmissibility for 
Certain Immediate Relatives

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

ACTION: Proposed rule.

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SUMMARY: On January 9, 2012, U.S. Citizenship and Immigration Services 
(USCIS) announced its intention 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. USCIS now proposes to amend its regulations 
to allow certain immediate relatives of U.S. citizens who are 
physically present in the United States to request provisional unlawful 
presence waivers under the Immigration and Nationality Act of 1952, as 
amended (INA or Act), prior to departing from the United States for 
consular processing of their immigrant visa applications. Currently, 
such aliens must depart from the United States and request waivers of 
inadmissibility during the overseas immigrant visa process, often 
causing U.S. citizens to be separated for extended periods from their 
immediate relatives who are otherwise eligible for an immigrant visa 
and admission for lawful permanent residence. Under the proposal, USCIS 
would grant a provisional unlawful presence waiver that would become 
fully effective upon the alien's departure from the United States and 
the U.S. Department of State (DOS) consular officer's determination at 
the time of the immigrant visa interview that, in light of the approved 
provisional unlawful presence waiver and other evidence of record, the 
alien is otherwise admissible to the United States and eligible to 
receive an immigrant visa. USCIS does not envision issuing Notices to 
Appear (NTA) to initiate removal proceedings against aliens whose 
provisional waiver applications have been approved. However, if USCIS, 
for example, discovers acts, omissions, or post-approval activity that 
would meet the criteria for NTA issuance or determines that the 
provisional waiver was granted in error, USCIS may issue an NTA, 
consistent with USCIS's NTA issuance policy, as well as reopen the 
provisional waiver approval and deny the waiver request. USCIS 
anticipates that the proposed changes will significantly reduce the 
length of time U.S. citizens are separated from their immediate 
relatives who are required to remain outside of the United States for 
immigrant visa processing and during adjudication of a waiver of 
inadmissibility for the unlawful presence. USCIS also believes that the 
proposed process, which reduces the degree of interchange between the 
DOS and USCIS, will create efficiencies for both the U.S. Government 
and most applicants. In addition to codifying the new process, USCIS 
proposes amendments clarifying other regulations.
    Even after USCIS begins accepting provisional unlawful presence 
waiver applications, the filing or approval of a provisional unlawful 
presence waiver application will not: confer any legal status, protect 
against the accrual of additional unlawful presence, authorize an alien 
to enter the United States without securing a visa or other appropriate 
entry document, convey any interim benefits (e.g., employment 
authorization, parole, or advance parole), or protect an alien from 
being placed in removal proceedings or removed from the United States.
    Do not send an application requesting a provisional waiver under 
the procedures under consideration in this proposed rule. Any 
provisional waiver application filed before the rule becomes final and 
effective will be rejected and the application package returned to the 
applicant, including any fees. USCIS will begin accepting provisional 
waiver applications only after a final rule is issued and the 
procedural change becomes effective.

DATES: Written comments should be submitted on or before June 1, 2012.

ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2012-0003, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: You may submit comments directly to USCIS by email 
at [email protected]. Include DHS Docket No. USCIS-2012-0003 in 
the subject line of the message.
     Mail: Sunday Aigbe, Chief, Regulatory Products Division, 
Office of the Executive Secretariat, U.S. Citizenship and Immigration 
Services, Department of Homeland Security, 20 Massachusetts Avenue NW., 
Washington, DC 20529-2020. To ensure proper handling, please reference 
DHS Docket No. USCIS-2012-0003 on your correspondence. This mailing 
address may be used for paper, disk, or CD-ROM submissions.
     Hand Delivery/Courier: Sunday Aigbe, Chief, Regulatory 
Products Division, Office of the Executive Secretariat, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
20 Massachusetts Avenue NW., Washington, DC 20529-2020. Contact 
Telephone Number is (202) 272-8377.

FOR FURTHER INFORMATION CONTACT: Roselyn Brown-Frei, Office of Policy 
and Strategy, Residence and Naturalization Division, 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).

Table of Contents:

I. Public Participation
II. Executive Summary
III. Background
    A. Legal Authority
    B. Grounds of Inadmissibility
    C. Unlawful Presence
    D. Current Waiver Process
    E. Problems With the Current Inadmissibility Waiver Process
    F. Notice of Intent
IV. Proposed Changes
    A. Overview of Proposed Provisional Unlawful Presence Waiver 
Process
    B. Rationale for Proposed Change
    C. Aliens Eligible To Seek a Provisional Unlawful Presence 
Waiver
    D. Aliens Ineligible for a Provisional Unlawful Presence Waiver
    E. Filing, Adjudication, and Decisions
    F. Motions To Reopen or Reconsider or Appeals of Denied 
Provisional Unlawful Presence Waiver Applications
    G. Terms and Conditions of the Provisional Unlawful Presence 
Waiver
    H. Validity of the Provisional Unlawful Presence Waiver
    I. Limitations of a Provisional Unlawful Presence Waiver
    J. Clarification of 8 CFR 212.7(a)(1) and (a)(4)
V. Public Input
VI. Statutory and Regulatory Requirements
    A. Unfunded Mandates Reform Act of 1995
    B. Small Business Regulatory Enforcement Fairness Act of 1996
    C. Executive Orders 12866 (Regulatory Planning and Review) and 
13563 (Improving Regulation and Regulatory Review)
    D. Executive Order 13132: This proposed rule will not have 
substantial direct effects on the States, on the relationship 
between the National Government and the States, or on the 
distribution of power and responsibilities among the various levels 
of government. Therefore, in accordance with section 6 of

[[Page 19903]]

Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.
    E. Executive Order 12988 Civil Justice Reform
    F. Paperwork Reduction Act
    G. Regulatory Flexibility Act

SUPPLEMENTARY INFORMATION:

I. Public Participation

    All interested parties are invited to participate in this 
rulemaking by submitting written data, views, or arguments on all 
aspects of this proposed rule. Comments that will provide the most 
assistance to DHS in developing these procedures will reference a 
specific portion of this rule, explain the reason for any recommended 
change, and include data, information, or authority that supports the 
recommended change.
    Instructions: All submissions must include the agency name and DHS 
Docket No. USCIS-2012-0003. All comments received will be posted 
without change to http://www.regulations.gov, including any personal 
information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.

II. Executive Summary

A. Purpose of the Regulatory Action

1. Need for the Regulatory Action
    Currently, certain spouses, children and parents of U.S. citizens 
(``immediate relatives'') who are in the United States are not eligible 
to apply for lawful permanent resident status (LPR) without leaving the 
United States because they entered the country unlawfully. These 
immediate relatives must travel abroad to obtain an immigrant visa from 
the Department of State (DOS) and, in many cases, also must request 
from the Department of Homeland Security (DHS) a waiver of the 
inadmissibility that resulted from their unlawful presence while they 
remain outside of the United States, separated from their U.S. citizen 
spouses, parents, or children. In some cases, waiver application 
processing can take well over a year, and the prolonged separation from 
immediate relatives can cause many U.S. citizens to experience extreme 
humanitarian and financial hardships. In addition, the action required 
for these immediate relatives to obtain LPR status in the United 
States--departure from the United States to apply for an immigrant visa 
at a DOS consulate abroad--is the very action that triggers the 
unlawful presence inadmissibility grounds under INA section 
212(a)(9)(B)(i). As a result, many immediate relatives who may qualify 
for an immigrant visa are reluctant to proceed abroad to seek an 
immigrant visa.
2. Proposed Provisional Unlawful Waiver Process
    DHS proposes to change its current process for the filing and 
adjudication of certain waivers of inadmissibility for qualifying 
immediate relatives of U.S. citizens, who are physically present in the 
United States, but must proceed abroad to obtain their immigrant visas. 
DHS proposes to allow qualifying immediate relatives to apply for a 
provisional waiver of their inadmissibility for unlawful presence while 
they are still in the United States and before they leave to attend 
their immigrant visa interview abroad.
    Approving an application for a provisional unlawful presence waiver 
prior to the immediate relative's immigrant visa interview will allow 
the DOS consular officer to issue the immigrant visa without delay if 
there are no other grounds of inadmissibility and if the immediate 
relative otherwise is eligible to be issued an immigrant visa. The 
immediate relative would not have to wait abroad during the period when 
USCIS adjudicates his or her waiver request, but rather could remain in 
the United States with his or her U.S. citizen spouse or parent during 
that period. As a result, U.S. citizens' separation from their 
immediate relatives would be significantly reduced. In addition, given 
the greater certainty that will result from this process, U.S. citizens 
and their family members would also be able to better plan for the 
immediate relative's departure and eventual return to the United 
States.
3. Legal Authority
    The Secretary of Homeland Security's authority for this proposed 
procedural change can be found in 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 Immigration and Nationality Act (INA or the Act), 8 
U.S.C. 1103, which give the Secretary the authority to administer and 
enforce the immigration and nationality laws. The Secretary's 
discretionary authority to waive the ground of inadmissibility for 
unlawful presence can be found in INA section 212(a)(9)(B)(v), 8 U.S.C. 
1182(a)(9)(B)(v). The regulation governing certain inadmissibility 
waivers is 8 CFR 212.7, and the fee schedule for waiver requests is 
found at 8 CFR 103.7.

B. Summary of the Major Provisions of the Regulatory Action in Question

    DHS proposes to allow certain immediate relatives to file 
provisional waiver applications before they depart from the United 
States for their immigrant visa interviews.
1. Eligibility for the Provisional Waiver
    Individuals may request a provisional waiver if:
    i. Their sole ground of inadmissibility at the time of the 
immigrant visa interview with DOS would be unlawful presence for more 
than 180 days;
    ii. They are the beneficiary of an approved Form I-130, Petition 
for Alien Relative or Form I-360, Petition for Amerasian, Widow(er), 
and Special Immigrant (classifying them as immediate relatives), and 
seek an immigrant visa from DOS based on this approved petition;
    iii. They are physically present in the United States when they 
file the application for the provisional unlawful presence waiver;
    iv. They appear for biometrics capture in the United States;
    v. They establish that a U.S. citizen spouse or parent would 
experience extreme hardship if the individual is denied admission to 
the United States as an LPR;
    vi. They warrant a favorable exercise of discretion; and
    vii. They are 17 years or older at the time of filing an 
application for a provisional unlawful presence waiver.
2. Ineligibility for the Provisional Unlawful Presence Waiver
    Individuals are ineligible for a provisional waiver if:
    i. They are outside the United States;
    ii. They do not have an approved Form I-130 or Form I-360 petition, 
classifying them as an immediate relative;
    iii. They have not paid the immigrant visa processing fee to DOS 
and are not actively pursuing the immigrant visa process based on the 
approved petition;
    iv. They have already been scheduled for an immigrant visa 
interview;
    v. They are under the age of 17 years when the provisional unlawful 
presence waiver is filed;
    vi. They are in removal proceedings that have not been terminated 
or dismissed;
    vii. They have not had the charging document (Notice to Appear) to 
initiate removal proceedings cancelled;
    viii. They are in removal proceedings that have been 
administratively closed but not subsequently reopened for the issuance 
of a final voluntary departure order;

[[Page 19904]]

    ix. They are subject to a final order of removal;
    x. They have a pending application for adjustment of status to that 
of an LPR in the United States;
    xi. USCIS has reason to believe they would be subject to one or 
more other grounds of inadmissibility;
    xii. They fail to establish extreme hardship or do not merit a 
favorable exercise of discretion; or
    xiii. They previously filed a provisional unlawful presence waiver 
application.
3. Adjudication and Decision
    USCIS would adjudicate the provisional unlawful presence waiver 
application and issue requests for evidence. USCIS would not issue 
Notices of Intent to Deny (NOIDs). If USCIS approves the provisional 
waiver application, USCIS would notify the applicant and DOS of the 
approval. Denials cannot be appealed and aliens will not have the right 
to seek motions to reopen or reconsider USCIS's decision. Aliens whose 
provisional waiver requests are denied, however, may still apply for a 
waiver through the current I-601 waiver process. USCIS also reserves 
the authority to reopen and reconsider on its own motion an approval or 
a denial of a provisional waiver application at any time.
4. Effect of Waiver
    An approved provisional waiver would not become effective until the 
alien departs from the United States, appears for his or her immigrant 
visa interview and is found admissible and otherwise eligible for the 
immigrant visa by DOS. The provisional waiver would then become a 
permanent waiver, waiving the inadmissibility based on the period of 
unlawful presence noted in the waiver request.
5. Revocation
    An approved provisional waiver is automatically revoked if DOS 
denies the immigrant visa application or if the underlying immigrant 
visa petition approval is revoked, withdrawn, or otherwise rendered 
invalid. An approved waiver also is revoked if the alien is 
inadmissible on grounds other than for unlawful presence under INA 
section 212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i), if the alien is 
otherwise ineligible for an immigrant visa, or if DOS terminates the 
alien's immigrant visa registration under INA section 203(g), 8 U.S.C. 
1153(g).

C. Costs and Benefits

    This proposed rule is expected to result in a reduction in the time 
that U.S. citizens are separated from their alien immediate relatives, 
thus reducing the financial and emotional hardship for these families. 
In addition, the Federal Government would achieve increased 
efficiencies in processing immigrant visas for individuals subject to 
the inadmissibility bar.
    DHS estimates the discounted total ten-year cost of this rule would 
range from approximately $100.6 million to approximately $303.8 million 
at a seven percent discount rate. Compared with the current waiver 
process, this rule proposes that the provisional waiver applicants 
submit biometric information. Included in this cost estimate is the 
cost of collecting biometrics, which we estimate will range from 
approximately $28 million to approximately $42.5 million at seven 
percent over ten years. In addition, as this rule significantly 
streamlines the current process, DHS expects that additional applicants 
will apply for the provisional unlawful presence waiver compared to the 
current waiver process. To the extent that this rule induces new demand 
for immediate relative visas, additional forms such as the Form I-130, 
Petition for Alien Relative, will be filed compared to the pre-rule 
baseline. These additional forms will involve fees being paid by 
applicants to the Federal Government for form processing and additional 
opportunity costs of time being incurred by applicants to provide the 
information required by the forms. The cost estimate for this rule also 
includes the impact of this induced demand, which we estimate will 
range from approximately $72.6 million to approximately $261.3 million 
at seven percent over ten years.
    Estimates for the costs of the proposed rule were developed 
assuming that current demand is constrained because of concerns that 
families may endure lengthy separations under the current system. 
Because of uncertainties as to the degree of the current constraint of 
demand, DHS used a range of constraint levels with corresponding 
increases in demand to estimate the costs. The costs for each increase 
in demand are summarized below.

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                           Estimated increase in costs with an increase in demand of:
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                                             25%                50%                75%                90%
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                                  Cost of Biometrics Collection and Processing
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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
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                  Costs of Applications for the Additional (Induced) Demand for Immigrant Visas
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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
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                                          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        303,839,123
Total 10 year Costs Discounted at 3%        123,045,496        218,713,620        314,381,745        371,782,619
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III. Background

A. Legal 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 (Secretary) 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

[[Page 19905]]

under the Homeland Security Act of 2002, the immigration and 
nationality laws, and other delegated authority.

B. Grounds of Inadmissibility

    U.S. immigration laws provide mechanisms for U.S. citizens to bring 
their families into the United States for family reunification, 
including, in some cases, their immediate relatives who have previously 
violated the immigration laws. 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 and 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 has 
the discretion to waive certain inadmissibility grounds, if the alien 
files a request and if he or she meets the relevant statutory and 
regulatory requirements and agency policy. If the Secretary grants the 
waiver, the waived ground will no longer bar the alien's admission, 
readmission, or immigrant visa eligibility.

C. Unlawful Presence

    The inadmissibility grounds based on accrual of unlawful presence 
in the United States can be found in INA section 212(a)(9)(B)(i), 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 3 years from the date of departure. Under part (II) of 
the same provision, an alien who was unlawfully present in the United 
States for one year or more and then departs the United States before, 
during, or after removal proceedings, will be inadmissible for 10 years 
from the date of the departure.
    These 3-year and 10-year unlawful presence bars do not take effect 
unless and until an alien departs from the United States. See, e.g., 
Matter of Rodarte-Roman, 23 I. & N. Dec. 905 (BIA 2006). By statute, 
aliens are not considered to accrue unlawful presence for purposes of 
INA 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)(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)(iii)(II). Battered women 
and children and victims of a severe form of trafficking in persons are 
not subject to the INA 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 section 212(a)(9)(B)(iii)(IV)-(V), 8 U.S.C. 1182(a)(9)(B)(iii)(IV)-
(V).
    The Secretary has the discretion to waive the 3-year and 10-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 U.S. citizen or LPR spouse or parent. See INA section 
212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v). Because the granting of a 
waiver is discretionary, the alien also must establish that he or she 
merits a favorable exercise of discretion. 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.

D. Current Waiver Process

    If a U.S. citizen wishes to sponsor an alien spouse, parent, or 
child (unmarried and under the age of 21)--known as ``immediate 
relatives'' in the immigration laws, see INA section 201(b)(2)(A)(i), 8 
U.S.C. 1151(b)(2)(A)(i)--to immigrate to the United States as an LPR, 
he or she must first file a Petition for Alien Relative, Form I-130, 
with USCIS, with appropriate fees and in accordance with USCIS form 
instructions.\1\ See INA section 204(a), 8 U.S.C. 1154(a); 8 CFR 204.1 
and 8 CFR 204.2. USCIS determines if an alien qualifies for 
classification as an immediate relative of the U.S. citizen.\2\ Id.
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    \1\ U.S. citizens also may sponsor unmarried sons and daughters 
(21 years of age and older) and married sons and daughters, and 
lawful permanent residents may sponsor spouses, children (unmarried 
and under the age of 21), and unmarried sons and daughters (21 years 
of age and older). See INA sections 203(a), 204(a), 8 U.S.C. 
1153(a), 1154(a). Because these relatives would not be eligible for 
the provisional waiver process for the reasons described in this 
proposed rule, they are not included in this discussion.
    \2\ Certain immediate relatives (i.e., widows/widowers of U.S. 
citizen and their minor unmarried children) can self-petition by 
filing a Form I-360, Petition for Amerasian, Widow(er) or Special 
Immigrant. Additionally, if the U.S. citizen spouse is deceased 
after the Form I-130 has been filed, the I-130 converts 
automatically to an approved I-360 widow/widower petition if the I-
130 was approved at the time of the U.S. citizen's death. If the I-
130 was pending at the time of the U.S. citizen's death, the pending 
I-130 converts automatically to a pending I-360 widow/widower 
petition.
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    If USCIS approves the petition for the alien relative, many aliens 
are eligible to apply for adjustment of status to that of an LPR under 
INA section 245, 8 U.S.C. 1255, or other provisions of law. Through 
adjustment of status, the alien can obtain LPR status in the United 
States without having to depart. There are various reasons why an alien 
may be statutorily ineligible for adjustment of status. For example, 
the alien would be ineligible if he or she entered the United States 
without inspection and admission or parole. Also, there are some 
individuals who are eligible to adjust status in the United States but 
choose to proceed through consular processing abroad. An alien who is 
seeking LPR status based on an approved Form I-130 but who is 
ineligible for adjustment of status must obtain an immigrant visa from 
a consular officer abroad before the alien can return to the United 
States and be admitted as an immigrant.
    If USCIS determines that the alien qualifies as an immediate 
relative of a U.S. citizen, and the alien will be pursuing consular 
processing of an immigrant visa application abroad, USCIS forwards the 
approved petition to the DOS National Visa Center (NVC). At the NVC, 
DOS begins to process the immigrant visa application and requests that 
the applicant submit the fee and the documents required for visa 
processing. Upon submission of all necessary documents by the alien, 
DOS schedules the alien for an immigrant visa interview with a DOS 
consular officer at a U.S. Embassy or consulate abroad. During the 
immigrant visa interview, the consular officer determines whether the 
alien is admissible to the United States and eligible for an immigrant 
visa. If the consular officer finds that the alien is subject to any 
ground of inadmissibility, including the 3-year or 10-year unlawful 
presence bars, the consular officer informs the alien that he or she 
may file an Application for Waiver of Grounds of Inadmissibility, Form 
I-601 (waiver application), with USCIS or, where USCIS is not present, 
with DOS, if a waiver is authorized for the relevant ground of 
inadmissibility. If the waiver application is filed with DOS, DOS 
forwards it to USCIS for adjudication.

[[Page 19906]]

    The alien must remain abroad while USCIS adjudicates the waiver 
application. Currently, USCIS adjudicates waiver applications filed 
abroad at various locations in other countries and within the United 
States, depending on where the alien applied for his or her immigrant 
visa. If USCIS approves the waiver, it notifies DOS, and DOS may issue 
the immigrant visa if DOS determines that the alien is otherwise 
eligible to receive an immigrant visa. If the waiver is denied, the 
alien is subject to the unlawful presence bars and must remain outside 
of the United States for 3 or 10 years before being able to reapply for 
an immigrant visa. The alien may file an appeal of a denied waiver 
application with the USCIS Administrative Appeals Office, or file 
another waiver application in the future.
    The 3-year and 10-year unlawful presence bars do not apply unless 
and until the alien departs from the United States. As noted above, 
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 that of an LPR while in the United States. 
Consequently, these aliens must depart the United States and apply for 
immigrant visas at a U.S. Embassy or consulate abroad before being able 
to return to the United States as immigrants. The action required to 
obtain lawful permanent residence in the United States, departure from 
the United States in order to apply for an immigrant visa at a 
consulate abroad, is the very action that triggers the INA section 
212(a)(9)(B)(i) inadmissibility grounds.

E. Problems With the Current Inadmissibility Waiver Process

    Under the current system, the entire waiver adjudication process 
occurs while the immediate relative remains outside of the United 
States, separated from his or her U.S. citizen spouse or parent. In 
some cases, the waiver processing time can take well over one year for 
reasons explained below. As a result, many immediate relatives are 
reluctant to proceed abroad to obtain an immigrant visa. In addition, 
the processing delays and extended absences of immediate relatives can 
cause many U.S. citizens and their families to experience extreme 
humanitarian and financial hardships. As such, an immediate relative's 
extended absence from the United States can give rise to the sort of 
extreme hardships to U.S. citizen family members that the unlawful 
presence waivers are intended to address and, if the waiver is merited, 
avoid.
    The current waiver adjudication process also creates inefficiencies 
and costs for the Federal Government. Overseas adjudication processing 
times for waivers vary by location and the number of waiver requests 
pending at any given time. Processing times are affected by the 
resources, personnel, and space available at USCIS offices abroad and 
the U.S. Embassy or consulate in a particular location. It is expensive 
for USCIS to maintain staff outside the United States, and space in 
U.S. Embassies and consulates is limited. Waiver processing times also 
are affected by the need for USCIS and DOS to transfer cases between 
the two agencies when adjudicating the immigrant visa application and 
waiver request. These limitations often prolong the overall waiver 
adjudication process and contribute significantly to the time U.S. 
citizens and their family members are separated from their immediate 
relatives.

F. Notice of Intent

    On January 9, 2012, USCIS published a notice of intent announcing 
its intent to change the current process for filing and adjudication of 
certain applications for waivers of inadmissibility filed in connection 
with an immediate relative immigrant visa application.\3\ The notice 
explained the proposed process that USCIS was considering and that 
USCIS would further develop, and ultimately finalize, the proposal 
through the rulemaking process.
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    \3\ See 77 FR 1040 (Jan. 9, 2012).
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    On January 10, 2012, USCIS conducted a stakeholder engagement to 
discuss the notice of intent. USCIS provided an overview of how the 
proposed process changes may affect filing and adjudication, and USCIS 
addressed questions from stakeholders. More than 900 people 
participated via telephone and in person. Topics covered included 
eligibility, procedures, and consequences of an approval or denial of a 
provisional waiver request.

IV. Proposed Changes

A. Overview of Proposed Provisional Unlawful Presence Waiver Process

    DHS proposes to allow certain ``immediate relatives'' (spouse, 
parents, and children (unmarried and under the age of 21)) of U.S. 
citizens, as defined in INA section 201(b)(2)(A)(i), 8 U.S.C. 
1151(b)(2)(A)(i), to apply for a waiver of inadmissibility of the 
unlawful presence bars before leaving the United States to attend their 
immigrant visa interviews abroad. Individuals filing under the new 
process would be subject to a biometrics collection requirement to 
assist in identifying other possible grounds of inadmissibility and 
ensure the integrity of the process. If USCIS has reason to believe 
that, at the time of the visa interview, the individual may be 
inadmissible on grounds of inadmissibility other than the unlawful 
presence grounds, USCIS would deny the application. If USCIS denies the 
provisional waiver application, USCIS will follow the NTA issuance 
policy in effect at the time of adjudication to determine if it will 
initiate removal proceedings against the applicant.\4\
---------------------------------------------------------------------------

    \4\ See USCIS Memorandum, Revised Guidance for the Referral of 
Cases and Issuance of Notices to Appear (NTAs) in Cases Involving 
Inadmissible and Removable Aliens (Nov. 7, 2011), available at: 
http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/NTA%20PM%20(Approved%20as%20final%2011-7-11).pdf.
---------------------------------------------------------------------------

    If USCIS approves the provisional unlawful presence waiver, the 
approval would be provisional. It would become fully effective only 
upon the alien's departure from the United States and a determination 
by DOS that the alien is, in light of the approved provisional unlawful 
presence waiver, otherwise admissible and eligible for an immigrant 
visa.
    If USCIS denies the provisional unlawful presence waiver, the alien 
may apply for a waiver of the 3- or 10-year unlawful presence bar 
through the current process described above, following the immigrant 
visa interview with a DOS consular officer. Given that USCIS is 
establishing these provisional waiver procedures purely as a matter of 
agency discretion, USCIS will not, in the interests of administrative 
efficiency and finality, allow for more than one provisional unlawful 
presence waiver filing. USCIS also will not permit administrative 
appeals or motions to reopen or reconsider the denial of a provisional 
unlawful presence waiver request. See proposed 8 CFR 212.7(e)(3) and 
(10). USCIS, however, proposes to retain its discretionary authority to 
reopen or reconsider a case on a USCIS motion when warranted. See 8 CFR 
103.5(a)(5). USCIS is committed to issuing Requests for Evidence (RFE) 
in considering applications that it receives from unrepresented 
individuals or others if their applications are missing critical 
information needed to demonstrate extreme hardship. USCIS believes that 
RFEs will allow the applicant to address any deficiencies and to 
provide any additional information to establish eligibility for the 
provisional waiver. However,

[[Page 19907]]

allowing applicants to file multiple applications would significantly 
interfere with the interagency operations between USCIS and DOS and 
substantially delay immigrant visa processing.

B. Rationale for Proposed Change

    The 3-year and 10-year unlawful presence bars do not apply unless 
the alien departs from the United States. Accordingly, aliens who have 
accrued more than 180 days of unlawful presence do not trigger the 
inadmissibility ground unless and until they depart. Many of these 
aliens are not eligible to adjust status to that of an LPR while 
remaining in the United States and must depart from the United States 
to apply for and obtain an immigrant visa at a U.S. Embassy or 
consulate abroad. Therefore, the action required from the alien in 
order to obtain LPR status--the departure to attend the immigrant visa 
interview--is the very action that triggers the 3-year or 10-year 
unlawful presence bar.
    If DHS could approve an application for a provisional waiver of the 
unlawful presence bars prior to the alien's immigrant visa interview 
abroad, the consular officer could issue the immigrant visa without 
delay following the interview. The alien would not have to wait abroad 
while USCIS adjudicates the waiver request. Instead, the alien could 
remain in the United States with his or her U.S. citizen spouse or 
parent while USCIS adjudicates his or her provisional unlawful presence 
waiver request. U.S. citizens, aliens, and their family members also 
could better plan for the immediate relative's departure for the 
consular interview and eventual return to the United States. The 
concept of allowing applicants to apply for a waiver while still in the 
United States, in advance of their departure, is not new and has been 
implemented in other contexts. For example, certain aliens who 
previously were ordered removed or were removed from the United States 
must obtain the Secretary's consent to reapply for admission to the 
United States because they are inadmissible under INA section 
212(a)(9)(A), 8 U.S.C. 1182(a)(9)(A). By law, consent to reapply must 
be obtained before the alien seeks to return to the United States. 
However, such aliens have been allowed to request consent to reapply in 
advance, while still in the United States before they depart and 
trigger inadmissibility under INA section 212(a)(9)(A). Thus, the 
proposed provisional unlawful waiver process is consistent with past 
practice with respect to certain pre-departure adjudications that 
address other grounds of inadmissibility under INA section 212(a)(9), 8 
U.S.C. 1182(a)(9).
    An approved provisional unlawful presence waiver would facilitate 
immigrant visa issuance shortly after the first consular interview. DHS 
believes that this process change would reduce the overall visa 
processing time, the period of separation of the U.S. citizen from his 
or her immediate relative, and the financial and emotional impact on 
the U.S. citizen and his or her family due to the immediate relative's 
absence from the United States. It also may encourage individuals to 
take affirmative steps to obtain an immigrant visa to become an LPR as 
reduced waiting times abroad would render it an efficient, more 
predictable process, rather than one with unpredictable and prolonged 
periods of separation.
    For USCIS and DOS, the proposed changes would minimize the case 
transfers that are currently part of the waiver process and save both 
agencies time and resources. If USCIS could process and adjudicate the 
provisional unlawful presence waivers domestically, USCIS could move a 
large part of its workload to USCIS Service Centers or field offices in 
the United States with resources that are less expensive than overseas 
staffing resources and that are available and flexible enough to 
accommodate filing surges. By adjudicating the provisional unlawful 
presence waiver applications domestically, USCIS also may be able to 
better standardize its waiver processing times for all requests for 
waivers of inadmissibility that are filed by applicants who process 
their immigrant visas at a U.S. Embassy or consulate. Most waivers of 
inadmissibility filed overseas are filed by aliens who are subject to 
the unlawful presence bars only.
    USCIS has identified immediate relatives of U.S. citizens to 
participate in this streamlined process, in part, because the focus on 
U.S. citizens and their immediate relatives is consistent with 
Congress' prioritization in the immigration laws of family 
reunification.\5\ Congress did not set an annual limit on the number of 
immediate relatives who may be admitted to the United States each year; 
consequently, visas for these aliens can be processed without awaiting 
availability of an immigrant visa number.
---------------------------------------------------------------------------

    \5\ Congress' emphasis on family reunification has long been 
reflected in immigration statutes. See, e.g., S. Rep. No. 89-748, at 
13 (1965) (Comm. Rep. for the Immigration Act of 1965, Pub. L. 89-
236, 79 Stat. 911) (``Reunification of families is to be the 
foremost consideration. The closer the family relationship the 
higher the preference. In order that the family unit may be 
preserved as much as possible, parents of adult U.S. citizens, as 
well as spouses and children, may enter the United States without 
numerical limitation.'') (emphasis added); see also Statement by 
President George Bush Upon Signing S.358 (Immigration Act of 1990), 
1990 U.S.C.C.A.N. 6801-1 (Nov. 29, 1990) (``The Act maintains our 
Nation's historic commitment to family reunification by increasing 
the number of immigrant visas allocated on the basis of family 
ties'').
---------------------------------------------------------------------------

    USCIS proposes to limit the provisional unlawful presence waiver 
process to aliens who would be subject only to the unlawful presence 
bars at the time of visa issuance because of the unique nature of INA 
section 212(a)(9)(B), as described above, and because preliminary data 
collected from DHS systems shows that approximately 80% of the waiver 
applications filed overseas are filed by aliens solely inadmissible 
under the unlawful presence bars. Accordingly, this proposed rule would 
likely affect a large number of U.S. citizens and their families who 
could be reunited more quickly with their immediate relatives.
    Finally, USCIS is further limiting eligibility for a provisional 
unlawful presence waiver only to immediate relatives of U.S. citizens 
who can establish that denial of the waiver would result in extreme 
hardship to their U.S. citizen spouse or parents, as provided in INA 
section 212(a)(9)(B)(v). DHS would not modify the extreme hardship 
standard.
    USCIS is not extending this provisional unlawful presence waiver 
process to preference aliens. Preference aliens do not qualify as 
immediate relatives of U.S. citizens; they include unmarried sons and 
daughters of U.S. citizens (21 years of age or older); spouses, 
children, unmarried sons and daughters of LPRs; married sons and 
daughters of U.S. citizens; and siblings of U.S. citizens. Unlike 
immediate relatives, the preference categories have annual numerical 
limitations set by statute. The processing of visas for these aliens 
depends on the availability of an immigrant visa number, while 
immediate relatives always have visa availability.
    Additionally, USCIS is not extending this provisional unlawful 
presence waiver process to immediate relatives who are basing their 
claim on extreme hardship to an LPR spouse or parent. For the 
provisional unlawful presence waiver, the qualifying relative must be a 
U.S. citizen. Preference aliens and immediate relatives whose 
qualifying relative for the extreme hardship claim is an LPR can still 
apply for a waiver under the current waiver process, after a consular 
interview abroad.

[[Page 19908]]

    This approach is consistent with the Secretary's authority to 
determine how best to administer the immigration laws and is within 
USCIS's discretion to determine the most efficient means for 
effectuating the waiver process. This new process is only a change in 
filing procedures (i.e., where an alien can seek a waiver of 
inadmissibility); it is not a substantive change in how USCIS 
determines extreme hardship. Limiting eligibility for this alternative 
waiver process to immediate relatives of U.S. citizens who can 
establish extreme hardship to a U.S. citizen spouse or parent is 
consistent with Congress' policy choice of focusing on reunification of 
U.S. citizen families. Focusing on hardship to U.S. citizens in the 
development of this discretionary procedure also is consistent with 
permissible distinctions that may be drawn between U.S. citizens and 
aliens and between classes of aliens in immigration laws and policies, 
see, e.g., Fiallo v. Bell, 430 U.S. 787, 792 (1977); Mathews v. Diaz, 
426 U.S. 67, 81 (1976), and with the governmental interest in 
encouraging naturalization, see, e.g., City of Chicago v. Shalala, 189 
F.3d 598, 608 (7th Cir. 1999), and cases cited therein.\6\
---------------------------------------------------------------------------

    \6\ The Department has not determined whether it might extend 
the availability of this procedure to other aliens. See, Beach 
Commc'ns v. FCC, 508 U.S. 307, 316 (1993) (observing that 
policymakers ``must be allowed leeway to approach a perceived 
problem incrementally'').
---------------------------------------------------------------------------

    DHS recognizes that certain immediate relatives of U.S. citizens 
may not be eligible to avail themselves of this alternative waiver 
process. Aliens who need a waiver of inadmissibility for unlawful 
presence based on extreme hardship to an LPR spouse or parent can still 
apply for such waivers after their consular interviews abroad.

C. Aliens Eligible To Seek a Provisional Unlawful Presence Waiver

    USCIS proposes to limit the provisional unlawful presence waiver to 
aliens who meet the following criteria:
1. Alien Must Be the Beneficiary of an Approved Immediate Relative 
Petition
    USCIS proposes to limit this proposed provisional unlawful presence 
waiver process to aliens who are ``immediate relatives'' under INA 
section 201(b)(2)(A)(i), 8 U.S.C. 1151(b)(2)(A)(i). See proposed 8 CFR 
212.7(e)(2). Immediate relatives of U.S. citizens include spouses of 
U.S. citizens; unmarried children under the age of 21 of U.S. citizens; 
and parents of U.S. citizens over age 21. Certain surviving spouses and 
children of deceased U.S. citizens, self-petitioners, and aliens who 
would become conditional permanent residents based on a marriage to a 
U.S. citizen for less than two years are also considered immediate 
relatives. Such aliens are included in the category of eligible 
individuals who could seek a provisional unlawful presence waiver. See 
INA section 201(b)(2)(A)(i), 8 U.S.C. 1151(b)(2)(A)(i); INA section 
204(l), 8 U.S.C. 1154(l); and INA section 216, 8 U.S.C. 1186.
    USCIS has considered the possibility that the proposed process may 
lead to an increase in fraudulent family-based immigrant visa 
petitions. USCIS is committed to preventing and detecting fraud in its 
immigration benefits programs and to implementing existing preventive 
measures provided in the immigration laws.
    Fraud detection and prevention are integral to USCIS's mission and 
to its standard operating procedures governing adjudications. USCIS's 
Fraud Detection and National Security division (FDNS) focuses entirely 
on fraud detection and national security. FDNS investigates fraud in 
the benefit process and makes appropriate referrals to U.S. Immigration 
and Customs Enforcement (ICE), the Department of Justice, or other law 
enforcement agencies when such fraud should be considered for criminal 
prosecution. USCIS also has established standard operating procedures 
in field offices for referrals to FDNS on potential fraud cases that 
may require additional review. For fraud prevention, FDNS conducts 
benefit fraud assessments to detect any patterns or increase in 
fraudulent practices in a particular application type or area of the 
United States.
    Congress also provided in the immigration laws several measures 
aimed at preventing marriage fraud, focusing especially on potential 
for fraud in marriages of less than two years' duration. For instance, 
Congress mandated that aliens married less than two years are subject 
to conditional resident status for two years after admission as an 
immigrant. See INA section 216, 8 U.S.C. 1186a; 8 CFR part 216; 8 CFR 
235.11. Once USCIS approves an immediate relative petition for an alien 
married to a U.S. citizen, and DOS determines that the alien is 
admissible and eligible for an immigrant visa, the alien can seek 
admission to the United States as an LPR. If, however, the alien has 
been married to the U.S. citizen for less than two years before the 
date of admission, the alien is admitted conditionally for a two-year 
period and, during that period, is considered a conditional resident.
    As a general matter, the U.S. citizen petitioner and the 
conditional permanent resident must jointly seek to remove the 
condition within the 90-day period immediately preceding the second 
anniversary of the date the alien obtained conditional permanent 
residence status. See id. If the U.S. citizen petitioner and the 
conditional permanent resident fail to do so, the alien's conditional 
permanent resident status is terminated automatically, and any waiver 
granted in connection with the status is automatically void. See id.; 
see also 8 CFR 212.7 and 216.4(a)(6). Furthermore, if USCIS determines 
that the marriage was entered into to evade the immigration laws, USCIS 
cannot approve future petitions for that alien. See INA section 204(c), 
8 U.S.C. 1154(c).
    The administrative process for removal of conditions and the USCIS 
assessment of whether the marriage was entered into to evade the 
immigration laws provide strong tools for combating potential fraud. 
USCIS, therefore, is not proposing to exclude from the provisional 
unlawful presence waiver process aliens who have been married less than 
two years and will be admitted as conditional residents. However, in 
the case of marriages that would be subject to the conditional LPR 
provisions of INA section 216, USCIS reserves the right, in the 
exercise of discretion, to interview the alien and the U.S. citizen 
spouse (as provided in proposed 8 CFR 212.7(e)(7) of this proposed 
rule) in connection with the provisional waiver application, when USCIS 
determines that the facts in a particular case warrant additional 
inquiry and review.
2. Alien Must Be Present in the United States When Filing the 
Provisional Unlawful Presence Waiver Application and for the Biometrics 
Appointment
    USCIS proposes to limit the category of immediate relatives 
eligible for the provisional unlawful presence waiver to aliens who are 
present in the United States but who are required to depart to 
immigrate through the DOS consular process abroad. See proposed 8 CFR 
212.7(e)(2)(i). Eligible immediate relatives also must be present in 
the United States to provide biometrics at an USCIS Application Support 
Center (ASC). This new biometric requirement will help USCIS determine 
if the alien potentially is subject to other grounds of inadmissibility 
or does not merit a favorable exercise of discretion, and is consistent 
with the agency's security and public safety priorities. Aliens who are 
outside the United States may not seek a provisional unlawful presence

[[Page 19909]]

waiver but can proceed through the current waiver process.
3. Alien Must Seek a Visa Based on the Approved Immediate Relative 
Petition
    USCIS proposes to require an alien seeking a provisional unlawful 
presence waiver to submit evidence demonstrating that he or she has 
initiated the immigrant visa process with the DOS NVC based upon the 
approved immediate relative petition, by submitting evidence that he or 
she has paid the immigrant visa processing fee required by DOS. Such 
evidence is required to ensure that the alien is pursuing consular 
processing, as the provisional unlawful presence waiver would be 
granted to facilitate the immigrant visa interview. The alien, however, 
is not eligible to apply under the proposed process if he or she has 
already been scheduled for an immigrant visa interview at a DOS Embassy 
or consulate abroad. See proposed 8 CFR 212.7(e)(2) and (3). USCIS 
analyzed whether cases already scheduled for visa interview should be 
included in the provisional unlawful presence waiver process. USCIS 
determined that resource constraints and timing issues warranted 
exclusion of these cases from participation. Therefore, any immigrant 
visa applicants who have already had their appointments scheduled, 
whether they actually appeared for the interview or not, should proceed 
with the immigrant visa process and not delay.
4. Alien Must Be Inadmissible Based Solely on Unlawful Presence at the 
Time of the Immigrant Visa Interview With DOS
    USCIS proposes to further limit this provisional unlawful presence 
waiver process to immediate relatives whose only ground of 
inadmissibility is, or would be upon departure from the United States, 
the 3-year or 10-year unlawful presence bars under INA section 
212(a)(9)(B)(i)(I) or (II), 8 U.S.C. 1182(a)(9)(B)(i)(I) or (II) at the 
time of the consular interview. See proposed 8 CFR 212.7(e)(2) and 
(e)(3)(i). USCIS proposes that if, when processing the provisional 
waiver application, USCIS has reason to believe that an alien may be 
inadmissible on a ground of inadmissibility other than unlawful 
presence under INA section 212(a)(9)(B)(i) at the time of the visa 
interview with DOS, USCIS will deny the provisional unlawful presence 
waiver application. Such a denial of a provisional unlawful presence 
waiver request would not be appealable; however, it would not preclude 
the alien from filing a waiver application under the current waiver 
process following the consular interview. See proposed 8 CFR 
212.2(e)(7) and (e)(10).
    Furthermore, USCIS's determination that it does not have reason to 
believe that the individual may be inadmissible on grounds other than 
the 3-year or 10-year unlawful presence bar at the time of the 
immigrant visa interview does not preclude DOS from making its own 
admissibility determination and its own finding that the individual may 
be ineligible for the immigrant visa despite the approved provisional 
unlawful presence waiver. Jurisdiction for making final ineligibility 
findings in relation to the consular immigrant visa process lies with 
DOS, not with USCIS. Similarly, neither USCIS's approval of the 
provisional unlawful presence waiver application nor DOS's visa 
eligibility determination and subsequent immigrant visa issuance 
guarantees that an alien will be admitted to the United States by U.S. 
Customs and Border Protection (CBP) if CBP determines that the 
individual is inadmissible on grounds other than those that were 
validly waived. See INA sections 204(e), 221(h); 8 U.S.C. 1154(e), 
1201(h).
5. Alien Must Meet the Requirements for the Unlawful Presence Waiver
    An alien must meet all statutory requirements for the unlawful 
presence waiver, as outlined in INA section 212(a)(9)(B)(v), 8 U.S.C. 
1182(a)(9)(B)(v), including the limitation that the alien must show 
extreme hardship to a U.S. citizen spouse or parent.\7\ The alien also 
must establish that he or she warrants a favorable exercise of 
discretion.
---------------------------------------------------------------------------

    \7\ INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v), 
allows for consideration of extreme hardship to a U.S. citizen 
spouse or parent or to an LPR spouse or parent. As explained 
previously, USCIS is limiting eligibility for the provisional waiver 
to those who can show extreme hardship to a U.S. citizen spouse or 
parent.
---------------------------------------------------------------------------

    Under current policy, USCIS considers the death of a U.S. citizen 
petitioner to be the functional equivalent of extreme hardship for 
purposes of a waiver sought by an applicant who is a surviving 
immediate relative of a deceased U.S. citizen and who meets the 
requirements of INA section 204(l), 8 U.S.C. 1154(l), if the extreme 
hardship being claimed by the surviving beneficiary would have been on 
account of extreme hardship to the U.S. citizen petitioner if he or she 
had survived. Note, however, that the finding of extreme hardship 
merely permits, and never compels, a favorable exercise of 
discretion.\8\
---------------------------------------------------------------------------

    \8\ See USCIS Memorandum, Approval of Petitions and Applications 
after the Death of the Qualifying Relative under New Section 204(l) 
of the Immigration and Nationality Act (Dec. 16, 2010), available at 
http://www.uscis.gov/USCIS/Laws/Memoranda/2011/January/Death-of-Qualifying-Relative.pdf; see also Matter of Cervantes-Gonzalez, 22 
I. & N. Dec. 560, 565 (BIA 1999), aff'd, 244 F.3d 1001 (9th Cir. 
2001).
---------------------------------------------------------------------------

    Any alien who can only qualify for a waiver based on extreme 
hardship to an LPR spouse or parent can still apply for a waiver under 
the existing process after an immigrant visa interview at a U.S. 
Embassy or consulate abroad.
6. Alien Must Be Age 17 or Older at the Time of Filing a Provisional 
Unlawful Presence Waiver
    USCIS proposes to accept provisional unlawful presence waiver 
applications for immediate relatives 17 years of age and older but 
reject applications filed by those under the age of 17. Unlawful 
presence does not begin to accrue until an alien who is unlawfully 
present in the United States reaches the age of 18. Accepting waiver 
applications from an alien who is 17 years of age or older would 
prevent an alien's prolonged separation from his or her U.S. citizen 
relative in the event that the alien's immigrant visa interview is 
scheduled after his or her 18th birthday.

D. Aliens Ineligible for a Provisional Unlawful Presence Waiver

    Under the proposed rule, immediate relatives of U.S. citizens would 
not be eligible for a provisional unlawful presence waiver under 
proposed 8 CFR 212.7(e) if:
    i. They are outside the United States;
    ii. They are not the beneficiaries of either an approved Petition 
for Alien Relative, Form I-130, classifying them as an immediate 
relative, or an approved Petition for Amerasian, Widow(er), and Special 
Immigrant, Form I-360, classifying them as an immediate relative;
    iii. They are not actively pursuing consular processing of an 
immigrant visa based on the approved immediate relative petition and 
have not paid the immigrant visa processing fee to DOS;
    iv. They have been scheduled for an immigrant visa interview at the 
time they submit an application for a provisional unlawful presence 
waiver;
    v. They fail to comply with the biometric capture requirements;
    vi. They are under the age of 17 years when the provisional 
unlawful presence waiver application is filed;
    vii. They are in removal proceedings that have not been terminated 
or dismissed;
    viii. They have not had the charging document (Notice to Appear) to 
initiate removal proceedings cancelled;
    ix. They are in removal proceedings that have been administratively 
closed

[[Page 19910]]

but not subsequently reopened for the issuance of a final voluntary 
departure order;
    x. They are subject to a final order of removal issued under 
section 235, 238 or 240 of the Act or any other provision of law 
(including an in absentia removal order under section 240(b)(5) of the 
Act);
    xi. They have a pending application with USCIS for lawful permanent 
resident status in the United States;
    xii. USCIS has reason to believe that the alien may be subject to 
other grounds of inadmissibility at the time of immigrant visa 
interview with DOS;
    xiii. They have not established to USCIS's satisfaction that denial 
of the waiver would result in extreme hardship to the alien's U.S. 
citizen spouse or parent or that a favorable exercise of discretion is 
merited; or
    xiv. The alien has previously filed a provisional unlawful presence 
waiver application.
    While individuals with cases pending with the NVC who have paid the 
immigrant visa processing fee to DOS and not yet been scheduled for a 
consular visa interview would be eligible to apply for the provisional 
unlawful presence waiver, applicants who have had their immigrant visa 
interviews scheduled will not be allowed to participate in the 
provisional waiver process. The inclusion of these cases was analyzed 
but resource constraints and the close coordination with DOS on the 
timeframes for interview scheduling once the provisional waiver 
application has been filed, led to the decision to exclude the cases 
from participation. NVC and USCIS intend that both document collection 
for the immigrant visa interview and waiver adjudication should occur 
as parallel processes that will conclude at the same time, thus 
allowing NVC to schedule the immigrant visa interview and transfer the 
case to post with no additional delay. Therefore, any immigrant visa 
applicant who has already had his or her appointment scheduled, whether 
they actually appeared for the interview or not, should proceed with 
the immigrant visa process and not delay.
    DHS is considering development of a process to permit filing of 
provisional unlawful presence waiver applications by certain 
individuals who: (a) Are in removal proceedings but have had such 
proceedings administratively closed and were subsequently granted 
voluntary departure, (b) were in removal proceedings that have been 
terminated or dismissed or (c) have had the charging document (Notice 
To Appear) to initiate removal proceedings cancelled.
    Aliens who cannot participate in the proposed provisional unlawful 
presence waiver process may still pursue a waiver through the current 
waiver process.

E. Filing, Adjudication, and Decisions

1. Filing the Provisional Unlawful Presence Waiver Application
    DHS proposes to require an alien seeking a provisional unlawful 
presence waiver to file an application on the form designated by USCIS, 
with the fees prescribed in proposed 8 CFR 103.7(b)(1) and 
(b)(1)(i)(C), and in accordance with the form instructions. See 
proposed 8 CFR 212.7(a)(1) and (e)(4). For this new process, USCIS has 
created and proposes to use a new Application for Provisional Unlawful 
Presence Waiver, Form I-601A. The filing fee for the Form I-601A will 
be the same as Form I-601, which is currently $585, since the 
adjudication time required for both forms is the same.\9\ See proposed 
8 CFR 103.7(b)(1)(i)(AA). USCIS will not accept fee waiver requests for 
the Form I-601A. The biometrics fee is currently $85 and also cannot be 
waived. See proposed 8 CFR 103.7(b)(1)(i)(C) and 8 CFR 103.17. The new 
Form I-601A will minimize the potential for confusion between the 
provisional waiver process and the current Form I-601 waiver process.
---------------------------------------------------------------------------

    \9\ The INA provides for the collection of fees at a level that 
will ensure recovery of the full costs of providing adjudication and 
naturalization services, including services provided without charge 
to asylum applicants and certain other applicants. INA section 
286(m), 8 U.S.C. 1356(m). The INA provides that the fees may recover 
administrative costs as well. For further information about USCIS 
fees, see U.S. Citizenship and Immigration Services Fee Schedule, 75 
FR 58962 (Sept. 24, 2010) and 75 FR 33445 (June 11, 2010).
---------------------------------------------------------------------------

    Additionally, applicants for a provisional unlawful presence waiver 
would be required to undergo biometrics collection to ensure the 
integrity of the process and assist USCIS in determining if the 
applicants have other potential grounds of inadmissibility. See 
proposed 8 CFR 212.7(e)(5). DHS would deny the provisional unlawful 
presence waiver application based on abandonment of the application if 
the applicant fails to provide biometrics or fails to appear at the 
biometrics appointment. See proposed 8 CFR 103.2(b)(13) and proposed 8 
CFR 212.7(e)(5).
2. Adjudication of the Provisional Unlawful Presence Waiver Application
    Once a provisional unlawful presence waiver application is properly 
filed, USCIS would adjudicate the provisional unlawful presence waiver. 
The alien still would have the burden to establish that he or she is 
eligible for the waiver and meets the requirements outlined in INA 
section 212(a)(9)(B)(v), with the additional limitation that the alien 
must establish extreme hardship only to his or her U.S. citizen spouse 
or parent. See proposed 8 CFR 212.7(e)(2) and 8 CFR 212.7(e)(7). The 
alien also would have to demonstrate that he or she warrants a 
favorable exercise of the Secretary's discretion. See INA section 
212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v); proposed 8 CFR 212.7(e)(6). 
If the alien meets all eligibility requirements, and a favorable 
exercise of discretion is warranted, USCIS would approve the 
provisional unlawful presence waiver. See 8 CFR 212.7(e)(2).
3. Requests for Evidence
    DHS proposes to issue RFEs in accordance with USCIS regulations at 
8 CFR 103.2 and applicable USCIS policy. USCIS will not issue Notices 
of Intent to Deny (NOIDs) to provisional unlawful presence waiver 
applicants. DHS proposes to limit RFEs solely to the issues of whether 
the alien has established extreme hardship and/or merits a favorable 
exercise of discretion. USCIS is committed to issuing RFEs to address 
applications it receives that are missing critical information needed 
to demonstrate extreme hardship. USCIS also has determined that issuing 
NOIDS could significantly interfere with the operational agreements 
between USCIS and DOS and could substantially delay immigrant visa 
processing. If an alien fails to respond to an RFE within the stated 
time frame, USCIS may deny the provisional unlawful presence waiver 
application as abandoned. See 8 CFR 103.2(b)(13)(i).
4. Denials
    USCIS would deny a provisional unlawful presence waiver application 
without issuing an RFE when the alien fails to meet any of the 
specified eligibility criteria described in proposed 8 CFR 212.7(e). An 
alien whose provisional unlawful presence waiver application is denied 
may seek a waiver after the DOS consular officer has made an 
admissibility determination at the immigrant visa interview at a U.S. 
Embassy or consulate abroad. See proposed 8 CFR 212.7(e)(10). An alien 
may not seek multiple provisional unlawful presence waivers. See 
proposed 8 CFR 212.7(e)(3).

[[Page 19911]]

5. Rejections of Provisional Unlawful Presence Waiver Applications
    USCIS also proposes to codify the criteria for when an application 
will be rejected and fees returned to the applicant. The goal is to 
reduce the likelihood than an alien will erroneously file a waiver 
application and further delay his or her immigrant visa processing. 
USCIS would reject a request for a provisional unlawful presence waiver 
if the alien:
    A. Fails to pay the required fees for the waiver application or 
biometrics collection or pay the correct fee;
    B. Fails to sign the waiver application;
    C. Fails to provide his or her family name, domestic home address, 
and date of birth;
    D. Is under the age of 17 years.
    E. Does not include evidence of an approved petition that 
classifies the alien as an immediate relative of a U.S. citizen;
    F. Does not include a copy of the immigrant visa fee receipt 
evidencing that the alien has paid the immigrant visa processing fee to 
DOS;
    G. Has indicated on the provisional unlawful presence waiver 
application that a visa interview has been scheduled with DOS; or
    H. Has not indicated on the provisional unlawful presence waiver 
application that the qualifying relative is a U.S. citizen spouse or 
parent.

See proposed 8 CFR 212.7(e)(4)(ii). An alien whose application was 
rejected is not prohibited from filing a new provisional unlawful 
presence waiver application according to the procedures outlined in 
proposed 8 CFR 212.7(e).
6. Withdrawal of the Request for a Provisional Unlawful Presence Waiver
    An alien may withdraw a provisional unlawful presence waiver 
application at any time prior to a final decision. Subsequent to the 
withdrawal, the case will be closed, and the alien and his or her 
representative (if applicable) will be notified. DOS/NVC also will be 
notified of the action. See proposed 8 CFR 212.7(e)(8) and (9). An 
alien who withdraws an application for a provisional unlawful presence 
waiver will not be permitted to later file a new application, and the 
filing fees will not be refunded.

F. Motions To Reopen or Reconsider or Appeals of Denied Provisional 
Unlawful Presence Waiver Applications

    Aliens seeking a provisional unlawful presence waiver would not be 
able to file a motion to reopen or motion to reconsider or to appeal a 
denial of a request for a provisional waiver. See proposed 8 CFR 
212.7(e)(10). Rather, such aliens could apply for a waiver through the 
current consular immigrant visa process. See id.
    USCIS proposes to retain its authority and discretion to reopen or 
reconsider a decision on its own motion. See proposed 8 CFR 
212.7(a)(4)(v) and 8 CFR 212.7(e)(12). For the provisional unlawful 
presence waiver process, USCIS may reopen the decision and deny or 
approve the provisional unlawful presence waiver at any time if USCIS 
finds that the decision was issued in error or approval is no longer 
warranted. USCIS would follow the requirements of 8 CFR 103.5(a)(5) 
before reopening a case and denying a waiver application. A USCIS 
decision to deny a provisional unlawful presence waiver is not subject 
to administrative appeal. USCIS's decision is discretionary and is not 
a final agency action subject to judicial review, since USCIS's 
decision is without prejudice to the alien's ability to seek a waiver 
from USCIS through the consular immigrant visa process. See proposed 8 
CFR 212.7(a)(3) and (e)(8) and (e)(10).

G. Terms and Conditions of the Provisional Unlawful Presence Waiver

    DHS proposes that a provisional unlawful presence waiver will not 
become a final waiver unless and until the alien departs from the 
United States, he or she presents himself or herself for the immigrant 
visa interview at a U.S. Embassy or consulate abroad, and the DOS 
consular officer determines that, in light of the approval of the 
provisional waiver and other evidence of record, the alien is otherwise 
admissible to the United States and eligible for an immigrant visa. See 
proposed 8 CFR 212.7(e)(11). Once DOS determines that the alien is 
eligible for an immigrant visa, the provisional unlawful presence 
waiver will become final and fully effective, subject to 8 CFR 
212.7(a)(4). See proposed 8 CFR 212.7(a)(4) and 8 CFR 212.7(e)(11) and 
(e)(12).
    A provisional unlawful presence waiver would only be effective for 
immigrant visa issuance based on the approved immediate relative 
petition. If the consular officer determines that the alien is 
inadmissible on other grounds, the provisional unlawful presence waiver 
is automatically revoked and the alien would be required to file a new 
waiver application that covers all applicable grounds of 
inadmissibility, including the 3-year or 10-year unlawful presence bar. 
See proposed 8 CFR 212.7(e)(13).
    DHS also proposes to limit the grant of a provisional unlawful 
presence waiver to the time period of the immigrant visa registration 
of an alien in accordance with INA section 203(g), 8 U.S.C. 
1153(g).\10\ DOS may terminate an alien's immigrant visa registration 
if the alien fails to apply for an immigrant visa within one year 
following notification to the alien of the availability of such visa. 
DOS, however, may reinstate the alien's immigrant visa registration if 
the alien establishes that within two years following the date of 
notification of the availability of such visa that such failure to 
apply was due to circumstances beyond his or her control. See INA 
section 203(g), 8 U.S.C. 1153(g); 22 CFR 42.83. Thus, the grant of the 
provisional unlawful presence waiver is valid as long as the alien's 
immigrant visa registration has not been terminated by DOS pursuant to 
INA 203(g) and the underlying immigrant visa petition has not been 
revoked, withdrawn, or otherwise terminated.
---------------------------------------------------------------------------

    \10\ INA section 203(g) provides in relevant part: ``The 
Secretary of State shall terminate the registration of any alien who 
fails to apply for an immigrant visa within one year following 
notification to the alien of the availability of such visa, but the 
Secretary shall reinstate the registration of any such alien who 
establishes within 2 years following the date of notification of the 
availability of such visa that such failure to apply was due to 
circumstances beyond the alien's control.'' See also 22 CFR 42.83 
(implementing INA section 203(g)).
---------------------------------------------------------------------------

    Furthermore, the validity of the provisional unlawful presence 
waiver also is dependent on the continued validity of the approved 
immediate relative petition. See proposed 8 CFR 212.7(a)(4), (e)(11), 
(e)(12) and (e)(13). If the approval of the visa petition or self-
petition is revoked for any reason, the provisional waiver would be 
automatically revoked, unless it is otherwise reinstated for 
humanitarian reasons or converted to a widow/widower petition. Under 
proposed 8 CFR 212.7(a)(4) and 8 CFR (e)(13), the provisional unlawful 
presence waiver also would be revoked automatically when: An immigrant 
visa ineligibility cannot be overcome; the approved immigrant visa 
application is withdrawn, or otherwise rendered invalid at any time; or 
when DOS terminates the registration of the immigrant visa application 
pursuant to INA section 203(g), 8 U.S.C. 1153(g), and DOS has not 
reinstated the registration in accordance with section 203(g), 8 U.S.C. 
1153(g). Termination of registration under INA section 203(g), 8 U.S.C. 
1153(g), also automatically revokes the approval of the underlying 
immediate relative petition under 8 CFR 205.1(a)(1).
    Finally, a provisional unlawful presence waiver grant is revoked 
automatically if the alien, at any time,

[[Page 19912]]

reenters or attempts to reenter the United States without admission or 
parole. See proposed 8 CFR 212.7(e)(13).

H. Validity of the Provisional Unlawful Presence Waiver

    Once the provisional waiver takes full effect in accordance with 
this rule, the alien would no longer be inadmissible to the United 
States under INA section 212(a)(9)(B) based on previously-accrued 
unlawful presence. The alien's period of unlawful presence in the 
United States upon which the waiver is based would be permanently 
waived, other than for conditional permanent residents whose status is 
terminated and certain K nonimmigrants, as described below. See 
proposed 8 CFR 212.7(a)(4) and (e)(12). The consular officer could 
issue the immigrant visa since the alien is no longer inadmissible.

I. Limitations of a Provisional Unlawful Presence Waiver

    The application for, or grant of, a provisional unlawful presence 
waiver under this proposed rule does not create a lawful immigration 
status or extend any authorized period of stay to the alien while the 
provisional waiver application is pending review with USCIS or while 
the alien is waiting for his or her immigrant visa interview. If an 
alien is present in the United States without lawful immigration 
status, he or she remains subject to removal, as provided by law. See 
INA section 240, 8 U.S.C. 1229a. A pending or approved application for 
a provisional unlawful presence waiver also will not toll the accrual 
of unlawful presence, but a grant of the provisional unlawful presence 
waiver will cover inadmissibility under both the 3-year and the 10-year 
bars under INA section 212(a)(9)(B)(i). A pending or approved 
application for a provisional unlawful presence waiver will not protect 
the alien from any other grounds of inadmissibility that he or she may 
be subject to in the future, such as the bar for unlawful reentry after 
previous immigration violation in the United States, under INA section 
212(a)(9)(C), 8 U.S.C. 1182(a)(9)(C). A pending or approved provisional 
unlawful presence waiver does not provide an individual with the right 
to obtain advance parole, the right to enter the United States, or the 
right to obtain and be granted any other immigration benefit. Finally, 
a pending or approved provisional unlawful presence waiver does not 
guarantee issuance of an immigrant visa or admission to the United 
States based upon the immigrant visa.

J. Clarification of 8 CFR 212.7(a)(1) and (a)(4)

    DHS also proposes two clarifying amendments to 8 CFR 212.7(a)(1) 
and (a)(4). See proposed 8 CFR 212.7(a)(1) and (a)(4). The first 
clarifying amendment is necessary because of an amendment to 8 CFR 
212.7(a)(1) that DHS included as part of the final rule published in 
the Federal Register on August 29, 2011, at 76 FR 53764 (August 29, 
2011 final rule). The August 29, 2011 final rule provides the 
regulatory framework that will enable USCIS to migrate from a paper 
file-based, nonintegrated systems environment to an electronic 
customer-focused, centralized case management environment for benefits 
processing.
    Before the August 29, 2011 final rule entered into effect on 
November 28, 2011, 8 CFR 212.7(a)(1) read:

    Form I-601 must be filed in accordance with the instructions on 
the form. When filed at a consular office, Form I-601 shall be 
forwarded to USCIS for a decision upon conclusion that the alien is 
admissible but for the grounds for which a waiver is sought.

The August 29, 2011 final rule revised the provision, effective 
November 28, 2011, so that it now reads:

Any alien who is inadmissible under sections 212(g), (h), or (i) of 
the Act who is eligible for a waiver of such inadmissibility may 
file on the form designated by USCIS, with the fee prescribed in 8 
CFR 103.7(b)(1) and in accordance with the form instructions. When 
filed at the consular section of an embassy or consulate, the 
Department of State will forward the application to USCIS for a 
decision after the consular official concludes that the alien is 
otherwise admissible.

8 CFR 212.7(a)(1), as amended at 76 FR 53787 (emphasis added). Deletion 
of the specific reference to the Form I-601 is consistent with the 
purpose of the August 29, 2011 final rule by facilitating the move to 
electronic filing and case management. The reference to aliens 
``inadmissible under sections 212(g), (h), or (i) of the Act,'' 
however, is an error. The cited provisions are not grounds of 
inadmissibility but are the statutory bases for some of the waivers of 
inadmissibility that an alien may seek under 8 CFR 212.7. For example, 
an alien who is inadmissible based on the 3-year and 10-year unlawful 
presence bar under INA section 212(a)(9)(B)(i), 8 U.S.C. 
1182(a)(9)(B)(i), uses the same application process to seek a waiver of 
inadmissibility for unlawful presence under INA section 
212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v). Therefore, the reference to 
INA section 212(g), (h) and (i) is removed and replaced with the more 
general reference ``who is inadmissible under any provision of section 
212(a) of the Act.'' In addition, the second sentence in 8 CFR 212.7 
about ``forwarding'' of an application from DOS to USCIS is not 
necessary. The second sentence is an internal case management provision 
that does not directly affect how an applicant seeks the benefit.
    For these reasons, DHS proposes to revise 8 CFR 212.7(a)(1) so that 
its text more fully aligns with the purpose of the August 29, 2011 
final rule. Rather than referring only to three types of waivers that 
an alien may seek, the amended provision would apply to any waiver of 
inadmissibility that an alien currently seeks by filing the Form I-601 
or any future form that may be designated by USCIS for waivers of 
grounds of inadmissibility under these provisions. The proposed 
amendment would remove what is now the second sentence in current 8 CFR 
212.7(a)(1). Finally, the proposed amendments would clarify who can 
apply for the waivers covered under 8 CFR 212.7(a)(1).
    DHS also proposes to amend 8 CFR 212.7(a)(4), concerning the 
validity of a waiver of inadmissibility. Two general principles are 
that a waiver of inadmissibility applies only to the specific grounds 
for which a waiver is sought, and that, except as described in this 
rule with respect to provisional unlawful presence waivers, the waiver, 
once granted, is valid indefinitely. DHS does not intend to alter these 
principles, and the proposed amendment includes them.
    One exception to these general principles relates to aliens who 
obtain a waiver of inadmissibility in conjunction with an application 
for lawful permanent resident status and who are admitted as LPRs on a 
conditional basis under section 216 or 216A of the Act, 8 U.S.C. 1186 
or 1186A. For any such aliens, termination of conditional LPR status 
would also terminate the validity of the waiver. The waiver would be 
restored if the alien challenges the termination in removal proceedings 
and the removal proceedings result in the restoration of the alien's 
status as an LPR. See current 8 CFR 212.7(a)(4) and proposed 8 CFR 
212.7(a)(4).
    Another exception is necessarily inferred from the statute. 
Sections 101(a)(15)(K)(i) and 214(d) of the Act, 8 U.S.C. 
1101(a)(15)(K)(i) and 1184(d), permit the nonimmigrant admission of the 
alien fianc[eacute](e) of a citizen of the United States. Although 
technically issued nonimmigrant visas and admitted as nonimmigrants, 
the fianc[eacute](e), and any accompanying or following-to-join 
children, are treated like immigrants who are immediate

[[Page 19913]]

relatives. See Matter of Le, 25 I&N Dec. 541 (BIA 2011), and Matter of 
Sesay, 25 I&N Dec. 431 (BIA 2011). DOS regulations require such aliens 
to qualify for immigrant visas. 22 CFR 41.81(d). Since the publication 
of a final rule on August 10, 1988, DHS has allowed nonimmigrant 
fianc[eacute](e)s and their children to seek inadmissibility waivers as 
immigrants. See Marriage Fraud Amendments Regulations, 53 FR 30011 
(Aug. 10, 1988). This practice is consistent with the principle, 
recognized in Matter of Le and Matter of Sesay, that the 
fianc[eacute](e) and accompanying children are similar in important 
respects to immigrants who are immediate relatives. The statutory 
provisions, including INA sections 212(a)(9)(B)(v), (g), (h) and (i), 8 
U.S.C. 1182(a)(9)(B)(v), (g), (h), and (i), however, generally make the 
waivers available only to ``spouses'' of citizens and LPRs. The 
fianc[eacute](e) is not yet a spouse. For this reason, a waiver granted 
to a fianc[eacute](e), and any accompanying or following-to-join 
children, can only be fully effective once the intended marriage takes 
place. DHS proposes to amend 8 CFR 212.7(a)(4) to make this necessary 
corollary explicit.

V. Public Input

    DHS invites comments from all interested parties, including 
advocacy groups, nongovernmental organizations, community-based 
organizations, and legal representatives who specialize in immigration 
law on any and all aspects of this proposed rule. DHS is specifically 
seeking comments on:

    A. The proposed waiver process;
    B. Proposed filing procedures; and
    C. Any alternatives to the proposed waiver process that may be 
more effective than the current USCIS overseas waiver process.

VI. Statutory and Regulatory Requirements

A. Unfunded Mandates Reform Act of 1995

    This proposed rule will not result in the expenditure by State, 
local and tribal governments, in the aggregate, or by the private 
sector, of $100 million or more in any one year, and it will not 
significantly or uniquely affect small governments. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

B. Small Business Regulatory Enforcement Fairness Act of 1996

    This proposed rule is not a major rule as defined by section 804 of 
the Small Business Regulatory Enforcement Act of 1996. This rule will 
not result in an annual effect on the economy of $100 million or more; 
a major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

C. Executive Orders 12866 (Regulatory Planning and Review) and 13563 
(Improving Regulation and Regulatory Review)

    1. Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule is a ``significant regulatory action,'' although 
not an economically significant regulatory action, under section 3(f) 
of Executive Order 12866. Accordingly, the Office of Management and 
Budget has reviewed this regulation. This effort is consistent with 
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.''
Summary
    The proposed rule would allow certain immediate relatives of U.S. 
citizens who are physically present in the United States to apply for a 
provisional waiver of the 3-year or 10-year bar for accrual of unlawful 
presence prior to departing for consular processing of their immigrant 
visa. This new provisional unlawful presence waiver process would be 
available to aliens whose only ground of inadmissibility is, or would 
be, the 3-year or 10-year unlawful presence bar.
    This proposed rule is expected to result in a reduction in the time 
that U.S. citizens are separated from their alien immediate relatives, 
thus reducing the financial and emotional hardship for these families. 
In addition, the Federal Government would achieve increased 
efficiencies in processing immediate relative visas for individuals 
subject to the inadmissibility bar.
    DHS estimates the discounted total ten-year cost of this rule would 
range from approximately $100.6 million to approximately $303.8 million 
at a seven percent discount rate. Compared with the current waiver 
process, this rule proposes that the provisional waiver applicants 
submit biometric information. Included in this cost estimate is the 
cost of collecting biometrics, which we estimate will range from 
approximately $28 million to approximately $42.5 million at seven 
percent over ten years. In addition, as this rule significantly 
streamlines the current process, DHS expects that additional applicants 
will apply for the provisional waiver compared to the current waiver 
process. To the extent that this rule induces new demand for immediate 
relative visas, additional forms such as the Petitions for Alien 
Relative, Form I-130 will be filed compared to the pre-rule baseline. 
These additional forms will involve fees being paid by applicants to 
the Federal Government for form processing and additional opportunity 
costs of time being incurred by applicants to provide the information 
required by the forms. The cost estimate for this rule also includes 
the impact of this induced demand, which we estimate will range from 
approximately $72.6 million to approximately $261.3 million at seven 
percent over ten years.
    A key uncertainty that impacts any cost estimate of this rule is 
the uncertainty involving the actual number of people that will avail 
themselves to this streamlined provisional waiver process. USCIS is not 
aware of any data that will allow us to estimate with precision the 
increase in demand due to this rule. For cost estimating purposes, DHS 
has analyzed the cost of an increase in demand of 25%, 50%, 75% and 90% 
compared to the existing waiver process.
2. Problems Addressed by the Proposed Changes
    Currently, aliens undergoing consular processing of their immediate 
relative visas cannot apply for an unlawful presence waiver until the 
consular officer determines that they are inadmissible during their 
immigrant visa interviews. The current unlawful presence waiver process 
requires these immediate relatives to remain abroad until USCIS 
adjudicates the waiver. DOS can only issue the immigrant visa upon 
notification from USCIS that the waiver has been approved. As 
previously mentioned, the processing time under the current waiver 
process can take over one year. Because of these lengthy processing 
times, U.S. citizens

[[Page 19914]]

may be separated from their immediate relative family members for 
prolonged periods resulting in financial, emotional, and humanitarian 
hardships. Family unification is a foundational principle of 
immigration law.
    The proposed rule would permit certain immediate relatives to apply 
for a provisional unlawful presence waiver prior to departing the 
United States. USCIS would adjudicate the provisional unlawful presence 
waiver and, if approved, would provide notification to DOS. Thus, the 
provisionally approved waiver would be available to the consular 
officer at the immigrant visa interview. If the consular officer 
determines there are no other impediments to admissibility and that the 
alien is otherwise eligible for issuance of the immigrant visa, the 
visa can be immediately issued. This proposed process change would 
significantly reduce the amount of time U.S. citizens are separated 
from their immediate alien relatives. In addition, the proposed changes 
would streamline the immigrant visa waiver process, thereby increasing 
efficiencies.
3. The Population Affected by the Proposed Rule
    As explained above, only certain immediate relatives undergoing 
consular processing for an immigrant visa who would be inadmissible 
based on accrual of unlawful presence at the time of the immigrant visa 
interview would be eligible to apply under the proposed waiver process. 
Immediate relatives of U.S. citizens who are able to adjust status in 
the United States are not affected. Immediate relatives who are 
eligible for adjustment of status in the United States generally 
include those who were admitted to the United States on nonimmigrant 
visas (student, tourist, etc.) or who were paroled, including those who 
are present in the United States after the expiration of their 
authorized periods of stay.
    In most instances, aliens present in the United States without 
having been admitted or paroled are not eligible to adjust their status 
and must leave the United States for immigrant visa processing at a 
U.S. Embassy or consulate abroad to immigrate to the United States. 
Since these aliens are present in the United States without having been 
admitted or paroled, many already have accrued more than 180 days of 
unlawful presence and, if so, would become inadmissible under the 
unlawful presence bars upon their departure from the United States to 
attend their immigrant visa interviews. While there may be limited 
exceptions, the affected population would consist almost exclusively of 
alien immediate relatives present in the United States without having 
been admitted or paroled.
    DHS does not maintain data on the number of immediate relatives 
present in the United States who would qualify under the proposed 
unlawful presence waiver process. The DHS Office of Immigration 
Statistics (DHS OIS) estimates that the population of unauthorized 
immigrants (those present without admission or parole) residing in the 
United States is approximately 10.8 million as of January 2010.\11\ 
While all persons affected by the proposed rule are within the 
estimated population of 10.8 million, it is estimated that only a 
portion are immediate relatives of U.S. citizens who meet the criteria 
required for the new process.
---------------------------------------------------------------------------

    \11\ Department of Homeland Security, Office of Immigration 
Statistics, Estimates of the Unauthorized Immigrant Population 
Residing in the United States: January 2010. Available at: http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2010.pdf.
---------------------------------------------------------------------------

    Other estimates are equally inconclusive of the number of immediate 
relatives of U.S. citizens who are subject to the unlawful presence 
bars. For example, the Pew Hispanic Trust estimates that there are 9.0 
million persons \12\ living in mixed status families in the United 
States that include at least one unauthorized adult alien and at least 
one U.S.-born child. This, and associated information from the Pew 
Hispanic Trust, does not provide a reliable means for the calculation 
of how many of the individuals in these families are U.S. citizens 
rather than alien immediate relatives, or the proportion of persons 
with unlawful presence who are the immediate relatives of LPRs rather 
than U.S. citizens.\13\ Nor do these data indicate how many persons 
within these families are under the age of 18 \14\ or have alternative 
methods of normalizing their immigration status without having to leave 
the United States and, consequently, are unlikely to be affected by the 
proposed rule.
---------------------------------------------------------------------------

    \12\ Pew Hispanic Trust, Unauthorized Immigrants: Length of 
Residency, Patterns of Parenthood, December 2011, pg. 6. Available 
at http://www.pewhispanic.org/files/2011/12/Unauthorized-Characteristics.pdf.
    \13\ The proposed rule applies only to alien immediate relatives 
of U.S. citizens, not to alien relatives of lawful permanent 
residents.
    \14\ In the Pew Hispanic Trust report Unauthorized Immigrants: 
Length of Residency, Patterns of Parenthood, ``families'' are 
defined as adults age 18 and older who live with their minor 
children (i.e., younger than 18) and unmarried, dependent children 
younger than 25.
---------------------------------------------------------------------------

    Data from different sources cannot be reliably combined because of 
differences in their total estimates for different categories, the 
estimation and collection methodologies used, or other reasons of 
incompatibility. Absent information on the number of aliens who are in 
the United States without having been inspected and admitted or paroled 
and who are immediate relatives of U.S. citizens, DHS cannot reliably 
estimate the affected population of the proposed rule.
4. Demand
    DHS expects that the proposed rule, once finalized and effective, 
will increase demand for both immigrant visa petitions for alien 
relatives and applications for waivers of inadmissibility. Existing 
demand is constrained by the current process that requires individuals 
to leave the United States and be separated for unpredictable and 
sometimes lengthy amounts of time from their immediate relatives in the 
United States in order to obtain an immigrant visa to become an LPR. 
Immediate relatives eligible for LPR status if issued a waiver of 
inadmissibility may be reluctant to avail themselves of the current 
process because of the length of time that they may be required to wait 
outside the United States before they can be admitted as LPRs.
    The proposed process would allow an immediate relative who meets 
the eligibility criteria of this proposed rule to apply for a 
provisional unlawful presence waiver and receive a decision on that 
application before departing the United States for a consular 
interview. The streamlined procedure of this proposed rule may reduce 
the reluctance of aliens who may wish to obtain an immigrant visa to 
become an LPR but are deterred by the lengthy separation from family 
members imposed by the current process and uncertainty related to the 
ultimate success of obtaining an approved inadmissibility waiver.
    The costs associated with normalizing a qualifying immediate 
relative's status also may be a constraint to demand. These current 
costs include: \15\
---------------------------------------------------------------------------

    \15\ Fees quoted are as of December 2011. Source for DOS fees: 
http://travel.state.gov/visa/temp/types/types_1263.html#perm. 
Source for USCIS fees: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=b1ae408b1c4b3210VgnVCM100000b92ca60aRCRD&vgnextchannel=b1ae408b1c4b3210VgnVCM100000b92ca60aRCRD.

    1. Petition for Alien Relative, Form I-130, to establish a 
qualifying relationship to a U.S. citizen; fee cost = $420.00.
    2. Application for Waiver of Grounds of Inadmissibility, Form I-
601, to obtain a waiver of inadmissibility for unlawful presence; 
fee cost = $585.00.

[[Page 19915]]

    3. Time and expense of preparing the evidence to support the 
``extreme hardship'' requirements for a waiver of inadmissibility. 
The evidentiary requirements could include sworn statements from 
family members, friends and acquaintances, medical records, 
psychiatric/psychological records, school records, evidence of 
illness of family members, financial information and tax returns, 
letters from teachers, support letters from churches and community 
organizations, evidence of health and emotional problems that may 
result from the separation, and such other documentation; cost = 
variable.
    4. Travel from the United States to the immediate relative's 
home country or country where the visa is being processed, and any 
additional living expenses required to support two households while 
awaiting an immigrant visa; cost = variable.
    5. Immigrant visa processing fees paid to: (a) The Department of 
State ($330), processed on the basis of a USCIS-approved I-130 
petition; and (b) USCIS ($165). Total fee cost = $495.00.
    6. An Affidavit of Support Under Section 213A of the Act, Form 
I-864; fee cost = $88.00.
    7. Immigrant visa background and security check surcharge per 
person applying for any immigrant visa category; fee cost = $74.00.
    8. Other forms, affidavits, etc. as required for individual 
applications; cost = variable.

The costs listed above are not new to this proposed rule; they are 
required under the current process.
    Under the proposed process, aliens would be required to submit 
biometrics after filing the provisional unlawful presence waiver 
application, along with the corresponding fee (currently $85.00). This 
biometric fee would be in addition to the visa security fee required by 
DOS for the immigrant visa application. The proposed requirement to 
submit biometrics, with the associated fee and travel costs, would be a 
small portion of the total costs of the visa application process.
    As there are no annual limitations on the number of immediate 
relative visas that can be issued, the increase in the annual demand 
for waivers would be determined by the size of the affected population 
and the increased propensity to apply. As previously mentioned, a 
potential increase in demand might be limited, as is current demand, by 
the costs previously noted.
    With the absence of an estimate of the affected population, we have 
calculated a preliminary estimate for the increase in demand based on 
historical records and assumptions on the range of demand. Forecasts of 
demand based on historical volumes of immediate relatives who are 
seeking waivers for unlawful presence are limited, at best, due to the 
lack of data. Historical estimates show only those aliens who have 
taken the steps to obtain an immigrant visa to become LPRs. The data 
are silent, however, on that population of aliens who have not 
initiated action to become LPRs due to current uncertainties and risks. 
Therefore, we recognize that the estimates provided below may 
understate what would actually occur if this rule becomes effective.
    The current level of demand, shown in Table 1, is a result of the 
existing constraints described previously: The possibility of lengthy 
separation of immediate relatives and their U.S. citizen relatives; 
uncertainty of the ultimate success of obtaining an approved 
inadmissibility waiver; and the financial constraints (costs). Because 
of the variability in timing between when immigrant visa petitions and 
waiver applications are submitted and adjudicated and the time when an 
immigrant visa is issued, comparisons between the totals within a 
single year are not meaningful.

                      Table 1--Historical Immigration Data--Fiscal Years 2001 Through 2010
----------------------------------------------------------------------------------------------------------------
                                                   Petitions for
                                                       alien         Immediate     Ineligibility   Ineligibility
                   Fiscal year                    relative, Form  relative visas   finding \16\    overcome \17\
                                                       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                     n/a             n/a             n/a           57.0%
 average).......................................
----------------------------------------------------------------------------------------------------------------
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 Table 1 demonstrates a wide 
variability. The estimate of future demand under the new process would 
be determined by the number of ineligibility findings. The data for 
Ineligibility Findings and Ineligibility Overcome in Table 1 refer only 
to ineligibility where the grounds of inadmissibility were the 3-year 
or the 10-year unlawful presence bar. This data, however, also includes 
immediate relatives of LPRs who are not affected by this rule. DHS has 
provided the data in Table 1 to provide historical context noting that 
the last three years of ineligibility findings are well above the 10-
year historical average. For this reason, DHS used the estimate for the 
future filings for waivers of inadmissibility made by the USCIS

[[Page 19916]]

Office of Performance and Quality (OPQ), Data Analysis and Reporting 
Branch, as the basis for the estimated future filings. The current OPQ 
estimate for future waivers of inadmissibility is approximately 24,000 
per year. Currently, 80 percent (or 19,200) of all waivers of 
inadmissibility are filed on the basis of inadmissibility due to the 
unlawful presence bars.\19\ This estimate is further confirmed when 
examining the most recent 5-year period between FY 2006-FY 2010 where 
the average unlawful presence ineligibility finding is approximately 
21,400. In light of the recent upward trend of immediate relative visas 
issued and ineligibility findings presented in Table 1, OPQ's estimate 
of 19,200 applications for waivers of unlawful presence represents as 
reasonable of an approximation as possible for future demand based on 
available data of the current waiver process.
---------------------------------------------------------------------------

    \16\ Both the Ineligibility Finding and Ineligibility Overcome 
columns refer only to ineligibility in which the grounds of 
inadmissibility were the 3-year or the 10-year unlawful presence 
bar. This figure is not limited to immigrant petitioners who are 
immediate relatives of U.S. citizens and includes relatives of LPRs. 
Ineligibility findings were low between 2001 and 2005/2006 because 
many individuals were not seeking immigrant visas through the 
consular process overseas; instead, they adjusted to lawful 
permanent resident status stateside under INA section 245(i).
    \17\ Id. Ineligibility Findings/Ineligibility Overcome includes 
immediate relatives who are not affected by the proposed rule. 
Comparisons between the totals of Ineligibility Findings/
Ineligibility Overcome within a single year are not meaningful 
because of the variability in timing between when an ineligibility 
finding is made and when (and if) it is overcome.
    \18\ The number of Petitions for Alien Relative, Form I-130, 
filed in 2001 is high because many filed petitions in anticipation 
of the INA section 245(i) sunset date, which occurred on April 30, 
2001.
    \19\ The 80 percent estimate was calculated by USCIS based on 
data from all I-601s completed by overseas offices from August 2010 
to October 28, 2011 and comparing those that listed only unlawful 
presence as an inadmissibility ground.
---------------------------------------------------------------------------

    DHS anticipates that the changes proposed would encourage immediate 
relatives who are unlawfully present to initiate actions to obtain an 
immigrant visa to become LPRs when they otherwise would be reluctant to 
under the current process. As confidence in the new process increases, 
demand would be expected to trend upward. The DHS preliminary estimates 
were formulated based on general assumptions of the level of 
constraints on demand removed by the proposed rule. DHS does not know 
of any available data that would enable a calculation of the increases 
in filing propensities or an increase in the number of inadmissibility 
findings or the percentage of inadmissibility findings where the 
inadmissibility bar is overcome.
    Table 2 indicates the estimate of demand under the current process. 
This is the baseline demand expected in the 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
            Fiscal year              alien relative,     Ineligibility
                                     Form I-130 \20\      finding \21\
------------------------------------------------------------------------
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 requests for waivers under the 
current process, Table 2 forecasts the number of findings of 
inadmissibility due to accrual of unlawful presence. The results 
presented in Table 2 are meant to show forecasts for future demand for 
waivers due to unlawful presence bars under the current process. DHS 
assumes that in every case where a consular officer determines 
inadmissibility based on unlawful presence, the alien would apply for a 
waiver. Thus, Table 2 represents the baseline totals we would expect in 
the absence of the proposed waiver process.
---------------------------------------------------------------------------

    \20\ The first year estimate is the 10 year average of 395,919 
multiplied by the 2.4 percent compound annual growth rate for the 
undocumented population for the previous 10 years reported in the 
DHS Office of Immigration Statistics, Estimates of the Unauthorized 
Immigrant Population Residing in the United States: January 2010, 
pg. 1. Subsequent years are increased at the same 2.4 percent growth 
rate. As a comparison, the U.S. population as a whole rose at a 
compound annual growth rate of 0.930 percent over the same period.
    \21\ Ineligibility Findings are calculated at the USCIS estimate 
of .04849 per 100,000 petitions for an alien relative.
---------------------------------------------------------------------------

    In these calculations, the petitions for an alien relative made by 
U.S. citizens are expected to increase annually by the 2.4 percent 
compound annual growth rate for the undocumented population for the 
previous 10 years based on reports by the DHS OIS.\22\ This is an 
imperfect calculation, as the undocumented population has declined 
since its peak in 2007,\23\ but because of the data association 
problems noted previously, DHS used the 10-year (long term) compound 
average growth rate.
---------------------------------------------------------------------------

    \22\ DHS Office of Immigration Statistics, Estimates of the 
Unauthorized Immigrant Population Residing in the United States: 
January 2010, pg. 1. The 2.4 percent (rounded) compound annual 
growth rate is calculated from the estimated populations of 
unauthorized immigrants living in the United States in 2000 (8.5 
million) and in 2010 (10.8 million).
    \23\ Id.
---------------------------------------------------------------------------

    The ineligibility findings in Table 2 are calculated using the 
estimate of 19,200 average annual waivers filed on the basis of 
unlawful presence, which equates to 0.04849 ineligibility findings for 
every alien relative petition based on the 10-year average. Again, 
these calculations are imperfect since they are based on immigrant 
visas granted for the alien relative population (both immediate 
relative and family preference).
    DHS does not have data available that would permit an estimation of 
the escalation of change in this variable. Thus, this estimate of 
future petitions for alien relatives and ineligibility findings is 
based on a range of assumptions concerning the current constraint on 
demand. As a result, Table 3 provides a scenario analysis utilizing 
estimates of various amounts of constraint on demand. For example, an 
assumption that demand is currently constrained by 25 percent would 
mean that there would be a 25 percent increase from the baseline in the 
number of I-601A applications for each year under the proposed rule. 
The findings of this range analysis are presented in Table 3.

[[Page 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 inadmissibility waiver 
applications due to the proposed rule. These estimates are obtained by 
subtracting the baseline estimates in Table 2 (without the proposed 
rule) from the preliminary estimates under the proposed rule in Table 
3.

   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
    The proposed rule would require provisional waiver applicants to 
submit biometrics to USCIS. This is the only new cost applicants would 
incur under the proposed provisional unlawful presence waiver process 
in comparison to the current waiver process. The other costs of the 
proposed rule emanate from the increase in the demand created by the 
proposed rule. These other costs include the fees and preparation costs 
for forms prepared by individuals who would not file under the current 
rule.
---------------------------------------------------------------------------

    \24\ The increased ineligibility findings in Table 4 are the 
difference in ineligibility findings from the different assumptions 
of the level of constrained demand in Table 3 and the baseline 
ineligibility findings shown in Table 2.
---------------------------------------------------------------------------

    For the biometric collection, the alien immediate relative would 
incur the following costs associated with submitting biometrics with an 
application for the provisional unlawful presence waiver: The required 
USCIS fee and the opportunity and mileage costs of traveling to a USCIS 
ASC to have the biometric recorded.
    The current USCIS fee for collecting and processing biometrics is 
$85.00. In addition, DHS estimates the opportunity costs for travel to 
an ASC in order to have the biometric recorded based on the cost of 
travel (time and mileage) plus the average wait time to have the 
biometric collected. While travel times and distances will vary, DHS 
estimates that the average round-trip to an ASC will be 50 miles, and 
that the average time for that trip will be 2.5 hours. DHS estimates 
that an alien will wait an average of one hour for service and to have 
biometrics collected.
    DHS recognizes that the individuals impacted by the proposed rule 
are unlawfully present and are generally not eligible to work; however, 
consistent with other DHS rulemakings, we use wage rates as a mechanism 
to estimate the opportunity or time valuation costs associated with the 
required biometric collection. The Federal minimum wage is currently 
$7.25 per hour.\25\ In order to anticipate the full opportunity cost of 
providing biometrics, DHS multiplied

[[Page 19918]]

the minimum hourly wage rate by 1.44 to account for the full cost of 
employee benefits such as paid leave, insurance, and retirement, which 
equals $10.44 per hour.\26\ In addition, the cost of travel includes a 
mileage charge based on the estimated 50 mile round trip at the GSA 
rate of $0.51 per mile, which equals $25.50 for each applicant.
---------------------------------------------------------------------------

    \25\ U.S. Dep't of Labor, Wage and Hour Division. The minimum 
wage is as of July 24, 2009. Bureau of Labor Statistics, 
Occupational Employment and Wages--May 2010 National Occupational 
Employment and Wage Estimates (May 17, 2011), available at: http://www.dol.gov/whd/minimumwage.htm.http://www.bls.gov/news.release/pdf/ocwage.pdf.
    \26\ U.S. Department of Labor, Bureau of Labor Statistics, 
Economic News Release, Table 1. Employer costs per hour worked for 
employee compensation and costs as a percent of total compensation: 
Civilian workers, by major occupational and industry group, March 
2011, viewed online at http://www.bls.gov/news.release/ecec.t01.htm.
---------------------------------------------------------------------------

    Using an opportunity cost of time of $10.44 per hour and the 3.5 
hour estimated time for travel and service and the mileage charge of 
$25.50, DHS estimates that the cost per provisional waiver applicant to 
be $62.04 for travel to and service at the ASC.\27\ When the $85.00 
biometric fee is added, the total estimated additional cost per 
provisional unlawful presence waiver over the current waiver process is 
$147.04. All other fees charged by USCIS and DOS to apply for immediate 
relative visas remain the same under the current and proposed 
processes.\28\
---------------------------------------------------------------------------

    \27\ ($10.44 per hour x 3.5 hours) + ($0.51 per mile x 50 miles) 
= $62.04.
    \28\ The proposed Application for a Provisional Waiver of 
Inadmissibility, Form I-601A, would carry the same USCIS fee as Form 
I-601.
---------------------------------------------------------------------------

    The incremental costs of the biometric requirement of the rule are 
computed as the $147.04 cost per provisional unlawful presence waiver 
multiplied by the total number of applicants for provisional waivers 
applying after the proposed rule is finalized. This population is 
represented in Table 3. The incremental costs of the additional 
biometric fee are shown in Table 5.

 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         27,967,676         33,561,211         39,154,746         42,510,867
     percent........................
    10 Year Totals Discounted at 3.0         34,221,714         41,066,057         47,910,400         52,017,006
     percent........................
----------------------------------------------------------------------------------------------------------------
Note: Numbers may not total due to rounding.

    In addition to the costs of the biometric requirement, DHS expects 
that the proposed rule will induce an increase in demand for immediate 
relative visas, which will generate new fees paid to the USCIS and DOS. 
As the only new requirement imposed by this rule on provisional waiver 
applicants compared with the current waiver process is biometrics, fees 
collected for filing forms that are already required (such as the Form 
I-130) are not costs of this rule. The new fees are those generated by 
the additional demand shown in Table 4 and are transfers made by 
applicants to USCIS and DOS to cover the cost of processing the forms. 
In addition to the fees, there are nominal costs associated with 
completing the forms. We estimate the amount of these fees and their 
associated preparation costs to give a more complete estimate of the 
impact of this rule. The additional fees and preparation costs are 
shown in Table 6.
    In determining the preparation cost for the forms, different labor 
rates were used depending on the citizenship status of the petitioner. 
If the form is completed by the alien immediate relative (Form I-601A), 
the loaded minimum wage of $10.44 per hour was used. If the form is 
completed by a U.S. citizen, we used the mean hourly wage for ``all 
occupations'' as reported by the Bureau of Labor Statistics and then 
adjusted that wage upward to account for the costs of employee 
benefits, such as annual leave, for a fully loaded hourly wage rate of 
$30.74.\29\ The times to complete the forms are based on the USCIS form 
instructions for the individual forms.
---------------------------------------------------------------------------

    \29\ The 30.74 rate is calculated by multiplying the $21.35 
average hourly wage for all occupations May 2010 (available at 
http://www.bls.gov/oes/current/oes_nat.htm#00-0000) by the 1.44 
fully loaded multiplier.
---------------------------------------------------------------------------

    These costs are calculated by the formula:

    1. Cost of Form I-130: Preparation cost = ($30.74 x 1.5 hours) = 
$46.12; USCIS fee to cover processing costs = $420.00. Total cost = 
$466.12.
    2. Cost of Form I-601A: Preparation cost = ($10.44 x 1.5 hours) 
= $15.66; USCIS fee to cover processing costs = $585.00. Total cost 
= $600.66.
    3. Cost of Form I-864: Preparation cost = ($30.74 x 6.0 hours) = 
$184.46; DOS fee to cover processing costs = $88.00. Total cost = 
$272.46.
    4. Cost of Immigrant Visa Processing Fees: DOS fee to cover 
processing costs = $330; USCIS fee to cover processing costs = $165. 
Total cost = $495.00.
    5. Cost of Visa Security fee: Preparation cost = DOS fee to 
cover processing costs = $74.00.

Based on the above, the total costs per application: ($466.12 + 600.66 
+ 272.46 + 495.00 + 74.00) = $1,908.24.

[[Page 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         72,591,182        145,182,365        217,773,547        261,328,257
     percent........................
    10 Year Totals Discounted at 3.0         88,823,781        177,647,563        266,471,344        319,765,613
     percent........................
----------------------------------------------------------------------------------------------------------------
Note: Sums may not total due to rounding.

    The totals in Table 6 are calculated by multiplying the induced 
demand shown in Table 4 by the $1,908.24 shown above. We acknowledge 
there are additional costs to the existing process, such as travel from 
the United States to the immediate relative's home country where the 
immigrant visa is being processed and the additional expense of 
supporting two households while awaiting an immigrant visa. Such costs 
are highly variable and depend on the circumstances of the specific 
petitioner. We did not estimate the impacts of these variable costs. To 
the extent that this rule allows immediate relatives to reduce the time 
spent in their home country, this rule would allow for such existing 
costs to be reduced and these savings represent a benefit of this rule.
    The total cost to applicants is shown in Table 7 as the sum of 
Table 5 and 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        100,558,858        178,743,575        256,928,293        303,839,123
     percent........................
    10 Year Totals Discounted at 3.0        123,045,496        218,713,620        314,381,745        371,782,619
     percent........................
----------------------------------------------------------------------------------------------------------------
Note: Sums may not total due to rounding.

    Costs to the Federal Government include the possible costs of 
additional adjudication personnel associated with increased volume and 
the associated equipment (computers, telephones) and occupancy costs 
(if additional space is required). However, we expect these costs to be 
offset by the additional fee revenue collected for form processing. 
Consequently, this rule does not impose additional costs on the Federal 
Government.
6. Benefits
    The benefits of the proposed rule are the result of streamlining 
the immigrant visa waiver process. The primary benefits of the proposed 
changes are qualitative and result from reduced separation time for 
U.S. citizens and their alien relatives. In addition to the obvious 
humanitarian and emotional benefits derived from family reunification, 
there also would be significant financial benefits accruing to the U.S. 
citizen due to the shortened period he or she would have to financially 
support the alien relative abroad. DHS is currently unable to estimate 
the average duration of time an immediate relative must spend abroad 
while awaiting waiver adjudication under the current process, and so 
cannot predict how the time spent apart would be reduced under the 
proposed provisional waiver process.
    As a result of streamlining the unlawful presence waiver process, 
there also would be efficiencies realized by both USCIS and DOS. The 
proposed process would enable USCIS to process and adjudicate the 
provisional unlawful presence waivers domestically. As a result, USCIS 
could move a large part of its workload to Service Centers or field 
offices with resources that are less expensive than overseas staffing 
resources and that are flexible enough to

[[Page 19920]]

accommodate filing surges. In addition, the proposed process would 
allow DOS to review these cases once, as opposed to the current 
unlawful presence process where these cases are reviewed twice, at a 
minimum. DHS anticipates that the new process will make the immigrant 
visa process more efficient.
    DHS encourages public comment on the benefits, both quantitative 
and qualitative, of this proposed rule.

D. Executive Order 13132

    This proposed rule will not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with section 6 
of Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

E. Executive Order 12988 Civil Justice Reform

    Section 3(c) of Executive Order 12988 requires Executive agencies 
to review regulations in light of applicable standards in section 3(a) 
and section 3(b) to determine whether they are met or it is 
unreasonable to meet one or more of them. DHS has completed the 
required review and determined that, to the extent permitted by law, 
this final rule meets the relevant standards of Executive Order 12988.

F. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13, 
all Departments are required to submit to the Office of Management and 
Budget (OMB), for review and approval, any reporting and recordkeeping 
requirements inherent in a rule. See Public Law 104-13, 109 Stat. 163 
(May 22, 1995). This proposed rule requires that an applicant 
requesting a provisional unlawful presence waiver complete an 
Application for Provisional Waiver of Unlawful Presence, Form I-601A. 
This form is considered an information collection and is covered under 
the PRA. DHS will be submitting an information collection request to 
OMB for review and approval under the PRA.
    Accordingly, DHS is requesting comments on this information 
collection for 60 days until June 1, 2012. Comments on this information 
collection should address one or more of the following four points:

    (1) Evaluate whether the collection of information is necessary 
for the proper performance of the functions of the agency, including 
whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden 
of the collection of information, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information 
to be collected; and
    (4) Minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., 
permitting electronic submission of responses.

    Overview of information collection:
    a. Type of information collection: Revised information collection.
    b. Abstract: This collection will be used by individuals who file a 
request for a provisional unlawful presence waiver of the 
inadmissibility grounds under INA section 212(a)(9)(B)(v), 8 U.S.C. 
1182(a)(9)(B)(v). Such individuals are subject to biometric collection 
in connection with the filing of the waiver.
    c. Title of Form/Collection: Application for Provisional Unlawful 
Presence Waiver.
    d. Agency form number, if any, and the applicable component of the 
Department of Homeland Security sponsoring the collection: Form I-601A, 
U.S. Citizenship and Immigration Services.
    e. Affected public who will be asked or required to respond: 
Individuals or Households: Individuals who are immediate relatives of 
U.S. citizens and who are applying from within the United States for a 
waiver of inadmissibility under INA section 212(a)(9)(B)(v) prior to 
obtaining an immigrant visa abroad.
    f. An estimate of the total numbers of respondents: 38,277.
    g. Hours per response: 1.5 hours per response.
    h. Total Annual Reporting Burden: 57,416.
    Comments concerning this form can be submitted to Sunday Aigbe, 
Chief, Regulatory Products Division, Office of the Executive 
Secretariat, U.S. Citizenship and Immigration Services, Department of 
Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529-
2020.

G. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, Public Law 104-121 (March 29, 1996), requires Federal agencies to 
consider the potential impact of regulations on small businesses, small 
governmental jurisdictions, and small organizations during the 
development of their rules. The term ``small entities'' comprises small 
businesses, not-for-profit organizations that are independently owned 
and operated and are not dominant in their fields, and governmental 
jurisdictions with populations of less than 50,000.
    DHS has reviewed this regulation in accordance with the Regulatory 
Flexibility Act and certifies that this rule will not have a 
significant economic impact on a substantial number of small entities. 
The factual basis for this determination is that this rule directly 
regulates individuals who are the immediate relatives of U.S. citizens 
seeking to apply for an unlawful presence waiver of inadmissibility in 
order to be eligible to obtain an immigrant visa outside the United 
States. The impact is on these persons as individuals, so that they are 
not, for purposes of the Regulatory Flexibility Act, within the 
definition of small entities established by 5 U.S.C. 601(6).

List of Subjects

8 CFR Part 103

    Administrative practice and procedures, Authority delegations 
(government agencies), Freedom of Information; Privacy, Reporting and 
recordkeeping requirements, Surety bonds.

8 CFR Part 212

    Administrative practice and procedure, Aliens, Immigration, 
Passports and visas, Reporting and recordkeeping requirements.

    Accordingly, DHS proposes to amend chapter I of title 8 of the Code 
of Federal Regulations as follows.

PART 103--POWERS AND DUTIES; AVAILABILITY OF RECORDS

    1. The authority citation for part 103 continues to read as 
follows:

    Authority:  5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304, 
1356, 1365b; 31 U.S.C. 9701; Pub. L. 107-296, 116 Stat. 2135 (6 
U.S.C. 1 et seq. ); E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 
Comp., p.166; 8 CFR part 2.

    2. Section 103.7 is amended by revising paragraph (b)(1)(i)(AA) to 
read as follows:


Sec.  103.7  Fees.

* * * * *
    (b) * * *
    (1) * * *
    (i) * * *

[[Page 19921]]

    (AA) Application for Waiver of Ground of Inadmissibility (Form I-
601) and Application for Provisional Unlawful Presence Waiver (I-601A). 
For filing an application for waiver of grounds of inadmissibility or 
an application for a provisional unlawful presence waiver: $585.
* * * * *

PART 212--DOCUMENTARY REQUIREMENTS; NONIMMIGRANTS; WAIVERS; 
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

    3. The authority citation for part 212 continues to read as 
follows:

    Authority:  8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 
1184, 1187, 1223, 1225, 1226, 1227, 1255, 1359; 8 U.S.C. 1185 note 
(section 7209 of Pub. L. 108-458); 8 CFR part 2. Section 212.1(q) 
also issued under section 702, Pub. L. 110-229, 122 Stat. 754, 854.

    4. Section 212.7 is amended by:
    a. Revising paragraphs (a)(1), (a)(3), and (a)(4); and
    b. Adding paragraph (e).
    The revisions and addition read as follows:


Sec.  212.7  Waivers of certain grounds of inadmissibility.

    (a)(1) Application. Except as provided by 8 CFR 212.7(e), an 
applicant for an immigrant visa, adjustment of status, or a K or V 
nonimmigrant visa who is inadmissible under any provision of section 
212(a) of the Act for which a waiver is available under section 212 of 
the Act may apply for the related waiver by filing the form designated 
by USCIS, with the fee prescribed in 8 CFR 103.7(b)(1), and in 
accordance with the form instructions. Certain immigrants may apply for 
a provisional unlawful presence waiver of inadmissibility as specified 
in 8 CFR 212.7(e).
* * * * *
    (3) Decision. If the waiver application is denied, USCIS will 
provide a written decision and notify the applicant and his or her 
attorney or accredited representative and will advise the applicant of 
appeal procedures, if any, in accordance with 8 CFR 103.3. The denial 
of a provisional unlawful presence waiver is governed by 8 CFR 
212.7(e).
    (4) Validity. (i) A provisional unlawful presence waiver granted 
according to paragraph (e) of this section is valid subject to the 
terms and conditions as specified in paragraph (e). In any other case, 
approval of an immigrant waiver of inadmissibility under this section 
applies only to the grounds of inadmissibility, and the related crimes, 
events, or incidents that are specified in the application for waiver.
    (ii) Except for K-1 and K-2 nonimmigrants and aliens lawfully 
admitted for permanent residence on a conditional basis, an immigrant 
waiver of inadmissibility is valid indefinitely, even if the applicant 
later abandons or loses lawful permanent resident status.
    (iii) For a K-1 or K-2 nonimmigrant, approval of the waiver is 
conditioned on the K-1 nonimmigrant marrying the petitioner; if the K-1 
nonimmigrant marries the K nonimmigrant petitioner, the waiver becomes 
valid indefinitely, subject to paragraph (a)(4)(iv) of this section, 
even if the applicant later abandons or loses lawful permanent resident 
status. If the K-1 does not marry the K nonimmigrant petitioner, the K-
1 and K-2 nonimmigrants remain inadmissible for purposes of any 
application for a benefit on any basis other than the proposed marriage 
between the K-1 and the K nonimmigrant petitioner.
    (iv) For an alien lawfully admitted for permanent residence on a 
conditional basis under section 216 of the Act, removal of the 
conditions on the alien's status renders the waiver valid indefinitely, 
even if the applicant later abandons or loses lawful permanent resident 
status. Termination of the alien's status as an alien lawfully admitted 
for permanent residence on a conditional basis also terminates the 
validity of a waiver of inadmissibility that was granted to the alien. 
Separate notification of the termination of the waiver is not required 
when an alien is notified of the termination of residence under section 
216 of the Act, and no appeal will lie from the decision to terminate 
the waiver on this basis. If the alien challenges the termination in 
removal proceedings, and the removal proceedings end in the restoration 
of the alien's status, the waiver will become effective again.
    (v) Nothing in this subsection precludes USCIS from reopening and 
reconsidering a decision if the decision is determined to have been 
made in error.
* * * * *
    (e) Provisional Unlawful Presence Waivers of Inadmissibility for 
Certain Immediate Relatives. The provisions of this paragraph (e) are 
applicable to certain aliens who are pursuing consular immigrant visa 
processing as an immediate relative of a U.S. citizen.
    (1) In general. USCIS may adjudicate applications for a provisional 
unlawful presence waiver of inadmissibility based on section 
212(a)(9)(B)(v) of the Act filed by eligible aliens described in 
paragraph (e)(2) of this section. USCIS will only approve such 
provisional unlawful presence waiver applications in accordance with 
the conditions outlined in paragraph (e) of this section. Consistent 
with section 212(a)(9)(B)(v) of the Act, the decision whether to 
approve a provisional unlawful presence waiver application is 
discretionary.
    (2) Eligible aliens. Except as provided in paragraph (e)(3) of this 
section, an alien may be eligible to apply for and receive a 
provisional unlawful presence waiver for the grounds of inadmissibility 
under section 212(a)(9)(B)(i)(I) or (II) of the Act if he or she:
    (i) Is present in the United States at the time of filing the 
application for a provisional unlawful presence waiver, and for 
biometrics collection at a USCIS Application Support Center;
    (ii) Upon departure, would be inadmissible only under section 
212(a)(9)(B)(i) of the Act at the time of the immigrant visa interview;
    (iii) Qualifies as an immediate relative under section 
201(b)(2)(A)(i) of the Act;
    (iv) Is the beneficiary of an approved immediate relative petition;
    (v) Has a case pending with the Department of State based on the 
approved immediate relative petition and has paid the immigrant visa 
processing fee as evidenced by a State Department Visa Processing Fee 
Receipt;
    (vi) Will depart from the United States to obtain the immediate 
relative immigrant visa; and
    (vii) Meets the requirements for a waiver provided in section 
212(a)(9)(B)(v) of the Act, except that the alien must show extreme 
hardship to his or her U.S. citizen spouse or parent.
    (3) Ineligible Aliens. Notwithstanding paragraph (e)(2) of this 
section, an alien is ineligible to apply for or receive a provisional 
unlawful presence waiver under paragraph (e) of this section if:
    (i) USCIS has reason to believe that the alien may be subject to 
grounds of inadmissibility other than unlawful presence under section 
212(a)(9)(B)(i)(I) or (II) of the Act at the time of the immigrant visa 
interview with the Department of State;
    (ii) The alien is under the age of 17;
    (iii) The alien does not have a case pending with the Department of 
State, based on the approved immediate relative petition, and has not 
paid the immigrant visa processing fee;
    (iv) The alien has been scheduled for an immigrant visa interview 
at a U.S. Embassy or Consulate abroad at the time the application is 
received by USCIS;

[[Page 19922]]

    (v) The alien is in removal proceedings that have not been 
terminated or dismissed;
    (vi) The alien has not had the charging document (Notice to Appear) 
to initiate removal proceedings cancelled;
    (vii) The alien is in removal proceedings that have been 
administratively closed but not subsequently reopened for the issuance 
of a final voluntary departure order;
    (viii) The alien is subject to a final order of removal issued 
under section 235, 238, or 240 of the Act or any other provision of law 
(including an in absentia removal order under section 240(b)(5) of the 
Act);
    (ix) The alien is subject to reinstatement of a prior removal order 
under section 241(a)(5) of the Act;
    (x) The alien has a pending application with USCIS for lawful 
permanent resident status; or
    (xi) The alien has previously filed a provisional unlawful presence 
waiver application;
    (4) Filing. (i) An application for a provisional waiver of the 
grounds of inadmissibility for the unlawful presence bars under section 
212(a)(9)(B)(i)(I) or (II) of the Act must be filed in accordance with 
8 CFR part 103 and on the form designated by USCIS. The prescribed fee 
under 8 CFR 103.7(b)(1) and supporting documentation must be submitted 
in accordance with the form instructions.
    (ii) An application for a provisional unlawful presence waiver 
application will be rejected and the fee and package returned to the 
alien if the alien:
    (A) Fails to pay the required fees for the waiver application or to 
pay the correct fee;
    (B) Fails to sign the waiver application;
    (C) Fails to provide his or her family name, domestic home address, 
and date of birth;
    (D) Is under the age of 17 years;
    (E) Does not include evidence of an approved petition that 
classifies the alien as an immediate relative of a U.S. citizen;
    (F) Does not include a copy of the fee receipt evidencing that the 
alien has paid the immigrant visa processing fee to DOS;
    (G) Has indicated on the provisional unlawful presence waiver 
application that an immigrant visa interview has been scheduled with 
DOS; or
    (H) Has not indicated on the provisional unlawful presence waiver 
application that the qualifying relative is a U.S. citizen spouse or 
parent.
    (5) Biometrics. (i) All aliens who apply for a provisional unlawful 
presence waiver under this section will be required to provide 
biometrics in accordance with 8 CFR 103.16 and 103.17, as specified on 
the form instructions.
    (ii) Failure to appear for biometrics capture. If an alien fails to 
appear for biometrics capture, the provisional unlawful presence waiver 
application will be considered abandoned and denied pursuant to 8 CFR 
103.2(b)(13). The alien may not appeal or file a motion to reopen or 
reconsider an abandonment denial under 8 CFR 103.5.
    (6) Burden of proof. The alien has the burden to establish 
eligibility for the provisional unlawful presence waiver as described 
in this paragraph of this section, and under section 212(a)(9)(B)(v) of 
the Act, including that the alien merits a favorable exercise of the 
Secretary's discretion.
    (7) Adjudication. USCIS will adjudicate the provisional unlawful 
presence waiver application in accordance with this paragraph of this 
section and section 212(a)(9)(B)(v) of the Act. USCIS also may require 
the alien and the U.S. citizen petitioner to appear for an interview 
pursuant to 8 CFR 103.2(b)(9). If USCIS finds that the alien does not 
meet the eligibility requirements for the provisional unlawful presence 
waiver as described in this paragraph (e), USCIS will deny the waiver 
application. Notwithstanding 8 CFR 103.2(b)(16), USCIS may deny an 
application for a provisional unlawful presence waiver without prior 
issuance of a request for evidence or notice of intent to deny.
    (8) Notice of Decision. USCIS will notify the alien or the alien's 
attorney of record or accredited representative of the decision in 
accordance with 8 CFR 103.2(b)(19). USCIS also may notify the 
Department of State. Denial of an application for a provisional 
unlawful presence waiver is without prejudice to the alien filing a 
waiver application under paragraph (a)(1) of this section after the 
immigrant visa interview overseas. Accordingly, denial of a request for 
a provisional unlawful presence waiver is not a final agency action for 
purposes of section 10(c) of the Administrative Procedure Act, 5 U.S.C. 
704.
    (9) Withdrawal of waiver requests. An alien may withdraw his or her 
request for a provisional unlawful presence waiver at any time before 
the final decision, but the alien will not be permitted to later file a 
new provisional unlawful presence waiver. Once the case is withdrawn, 
USCIS will close the case and notify the alien and his or her attorney 
or accredited representative.
    (10) Appeals and Motions to Reopen. There is no administrative 
appeal from a denial of a request for a provisional unlawful presence 
waiver under this section. The alien may not file, pursuant to 8 CFR 
103.5, a motion to reopen or reconsider a denial of a provisional 
unlawful presence waiver application under this section.
    (11) Approval and Conditions. A provisional unlawful presence 
waiver granted under this section:
    (i) Does not take effect unless, and until, the alien who applied 
for and obtained the provisional unlawful presence waiver:
    (A) Departs from the United States;
    (B) Appears for an immigrant visa interview at a U.S. Embassy or 
consulate; and
    (C) Is determined to be admissible and otherwise eligible for an 
immigrant visa by a Department of State consular officer in light of 
the approved provisional unlawful presence waiver.
    (ii) Waives the alien's inadmissibility under section 212(a)(9)(B) 
of the Act only for purposes of the application for an immigrant visa 
and admission to the United States as an immediate relative of a U.S. 
citizen.
    (iii) Does not waive any ground of inadmissibility other than the 
grounds of inadmissibility under section 212(a)(9)(B)(i)(I) or (II) of 
the Act.
    (12) Validity. Until the provisional unlawful presence waiver takes 
full effect as provided in paragraph (e)(11) of this section, USCIS may 
reopen and reconsider its decision at any time. Once a provisional 
unlawful presence waiver takes full effect as defined in paragraph 
(e)(11), the period of unlawful presence for which the provisional 
unlawful presence waiver is granted is waived permanently and, in 
accordance with and subject to paragraph (a)(4) of this section, the 
waiver is valid indefinitely.
    (13) Automatic Revocation. The approval of a provisional unlawful 
presence waiver is revoked automatically if:
    (i) The consular officer determines at the time of the immigrant 
visa interview that the alien is inadmissible on grounds other than 
section 212(a)(9)(B)(i)(I) or (II) of the Act;
    (ii) The immigrant visa petition approval associated with the 
provisional unlawful presence waiver is at any time revoked, withdrawn, 
or rendered invalid but not otherwise reinstated for humanitarian 
reasons or converted to a widow or widower petition;
    (iii) The immigrant visa registration is terminated in accordance 
with section 203(g) of the Act, and has not been

[[Page 19923]]

reinstated in accordance with section 203(g) of the Act; or
    (iv) The alien, at any time, reenters or attempts to reenter the 
United States without being inspected and admitted or paroled.
* * * * *

Janet Napolitano,
Secretary.
[FR Doc. 2012-7698 Filed 3-30-12; 8:45 am]
BILLING CODE 9111-97-P