[Federal Register Volume 80, Number 140 (Wednesday, July 22, 2015)]
[Proposed Rules]
[Pages 43338-43354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-17794]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 80, No. 140 / Wednesday, July 22, 2015 / 
Proposed Rules  

[[Page 43338]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 103 and 212

[CIS No. 2557-14; DHS Docket No. USCIS-2012-0003]
RIN 1615-AC03


Expansion of Provisional Unlawful Presence Waivers of 
Inadmissibility

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

ACTION: Proposed rule.

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SUMMARY: The Department of Homeland Security (DHS) proposes to expand 
eligibility for provisional waivers of certain grounds of 
inadmissibility based on the accrual of unlawful presence to all aliens 
who are statutorily eligible for a waiver of such grounds, are seeking 
such a waiver in connection with an immigrant visa application, and 
meet other conditions. The provisional waiver process currently allows 
certain aliens who are present in the United States to request from 
U.S. Citizenship and Immigration Services (USCIS) a provisional waiver 
of certain unlawful presence grounds of inadmissibility prior to 
departing from the United States for consular processing of their 
immigrant visas--rather than applying for a waiver abroad after the 
immigrant visa interview using the Form I-601, Waiver of Grounds of 
Inadmissibility (hereinafter ``Form I-601 waiver process''). DHS 
proposes to expand its current provisional waiver process in two 
principal ways. First, DHS would eliminate current limitations on the 
provisional waiver process that restrict eligibility to certain 
immediate relatives of U.S. citizens. Under this proposed rule, the 
provisional waiver process would be made available to all aliens who 
are statutorily eligible for waivers of inadmissibility based on 
unlawful presence and meet certain other conditions. Second, in 
relation to the statutory requirement that the waiver applicant 
demonstrate that denial of the waiver would result in ``extreme 
hardship'' to certain family members, DHS proposes to expand the 
provisional waiver process by eliminating the current restriction that 
limits extreme hardship determinations only to aliens who can establish 
extreme hardship to U.S. citizen spouses or parents. Under this 
proposed rule, an applicant for a provisional waiver would be permitted 
to establish the eligibility requirement of showing extreme hardship to 
any qualifying relative (namely, U.S. citizen or lawful permanent 
resident spouses or parents). DHS is proposing to expand the 
provisional waiver process in the interests of encouraging eligible 
aliens to complete the visa process abroad, promoting family unity, and 
improving administrative efficiency.

DATES: Submit written comments on or before September 21, 2015. 
Comments on the information collection revisions in this rule, as 
described in the Paperwork Reduction Act section, will also be accepted 
until September 21, 2015.

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 this site's instructions for submitting comments.
     Email: You may email comments directly to USCIS at 
[email protected]. Include DHS Docket No. USCIS-2012-0003 in the 
subject line of the message.
     Mail: Laura Dawkins, Chief, Regulatory Coordination 
Division, Office of Policy and Strategy, 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: Laura Dawkins, Chief, Regulatory 
Coordination Division, Office of Policy and Strategy, 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).

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Executive Summary
II. Public Participation
III. Background
    A. Legal Authority
    B. Immigrant Visa Categories
    1. Immediate Relatives, Family-Sponsored Immigrants, Employment-
Based Immigrants, and Certain Special Immigrants
    2. Diversity Visa Program
    C. Grounds of Inadmissibility
    D. Unlawful Presence
    E. Form I-601 Waiver Process
    1. Form I-601 Waiver Process for Immigrant Visa Applicants 
Abroad
    2. Difficulties With the Form I-601 Waiver Process
    F. Provisional Waiver Process
    1. Creation of Provisional Waiver
    2. Impact of Provisional Waiver Process
IV. Proposed Changes
    A. Immediate Relative, Family-Sponsored, Employment-Based, and 
Certain Special Immigrants
    B. Diversity Immigrants
    C. Qualifying Relatives
    D. Aliens With Scheduled Immigrant Visa Interviews
    E. Miscellaneous Changes
    F. Benefits of the Proposed Changes
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 and 13563
    1. Summary
    2. Background
    3. Purpose of Rule
    4. Current Provisional Unlawful Presence Waiver Program
    5. Population Affected by This Rule
    6. Costs and Benefits
    D. Regulatory Flexibility Act
    E. Executive Order 13132
    F. Executive Order 12988 Civil Justice Reform
    G. Paperwork Reduction Act

II. Public Participation

    DHS invites all interested parties to submit written data, views, 
or arguments on all aspects of this proposed rule. DHS also invites 
comments about how the proposed rule might affect the economy, 
environment,

[[Page 43339]]

or federalism. The most helpful comments will:
    (1) Refer to a specific portion of this proposed rule;
    (2) Explain the reason for any recommended change; and
    (3) Include data, information, or references to authority that 
support the recommended change.
    Instructions: All submissions must include the agency name and DHS 
Docket No. USCIS-2012-0003 assigned to this rulemaking. Regardless of 
the method you used to submit comments or material, all submissions 
will be posted, without change, to the Federal eRulemaking Portal at 
http://www.regulations.gov, and will include any personal information 
you provide. Your entire submission will be available for the public to 
view. Therefore, you may wish to consider limiting the amount of 
personal information that you provide. DHS may withhold information 
provided in comments from public viewing that it determines may impact 
the privacy of an individual or is deemed to be inappropriate or 
offensive. For additional information, please read the Privacy Act 
notice that is available on the link in the footer of http://www.regulations.gov.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov and enter this 
proposed rule's DHS Docket No. USCIS-2012-0003.

III. Background

A. Legal Authority

    Section 102 of the Homeland Security Act of 2002 (Public Law 107-
296, 116 Stat. 2135), 6 U.S.C. 112, and section 103 of the Immigration 
and Nationality Act (INA), 8 U.S.C. 1103, charge the Secretary of 
Homeland Security (Secretary) with the administration and enforcement 
of the immigration and naturalization laws of the United States. The 
Secretary proposes the changes in this rule under the broad authority 
to administer the authorities provided under the Homeland Security Act 
of 2002, the immigration and nationality laws, and other delegated 
authorities. The Secretary's discretionary authority to waive the 
unlawful presence grounds of inadmissibility is provided in INA section 
212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v). See also Homeland Security 
Act of 2002, sec. 451(b), 6 U.S.C. 271(b) (transferring to the Director 
of USCIS the immigration benefits adjudication functions of the 
Commissioner of the former Immigration and Naturalization Service).

B. Immigrant Visa Categories

    U.S. immigration laws provide avenues for U.S. citizens, LPRs, and 
U.S. employers to bring their families or employees permanently to the 
United States. Certain other categories of aliens are eligible for 
immigrant visas through special processes. See, e.g., INA section 
201(b), 8 U.S.C. 1151(b) (describing aliens who are not subject to 
numerical limitations on immigration levels); INA section 203(a)-(d); 8 
U.S.C. 1153(a)-(d) (providing for the allocation of immigrant visas to 
family-sponsored immigrants, employment-based immigrants, certain 
special immigrants, and diversity immigrants, as well as the derivative 
spouses and children of such immigrants).
1. Immediate Relatives, Family-Sponsored Immigrants, Employment-Based 
Immigrants, and Certain Special Immigrants
    Generally, if a U.S. citizen or LPR seeks to sponsor a relative for 
lawful permanent residence in the United States, the U.S. citizen or 
LPR must first file an immigrant visa petition for the relative with 
USCIS.\1\ See INA sections 201(b)(2)(A)(i), 203(a), 204; 8 U.S.C. 
1151(b)(2)(A)(i), 1153(a), 1154; 8 CFR part 204. The same is generally 
true with respect to a U.S. employer that wishes to petition on behalf 
of a noncitizen worker. See INA sections 203(b), 204; 8 U.S.C. 1153(b), 
1154; 8 CFR part 204. Certain other categories of immigrants, such as 
``special immigrants,'' are eligible for permanent residence through 
special processes. See INA sections 101(a)(27), 203(b)(4), 
204(a)(1)(I); 8 U.S.C. 1101(a)(27), 1153(b)(4), 1154(a)(1)(I); 8 CFR 
part 204; 22 CFR 42.32(d).
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    \1\ Certain immediate relatives (e.g., widows or widowers of 
U.S. citizens and their children) and special immigrants can self-
petition for classification as an immediate relative of a U.S. 
citizen by filing a Form I-360, Petition for Amerasian, Widow(er) or 
Special Immigrant. Similarly, certain employment-based categories 
(e.g., aliens with extraordinary ability) allow an alien to self-
petition for classification as an employment-based immigrant. See 
INA sections 201 and 203(b)(1)(A) & (2)(B); 8 U.S.C. 1151, 
1153(b)(1)(A) & (2)(B); 8 CFR 204.5(h) and (k)(4)(ii).
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    The purpose of the immigrant visa petition is to classify the alien 
as an intending immigrant who is either an immediate relative of a U.S. 
citizen (i.e., the spouse, parent, or unmarried child of a U.S. 
citizen) or an alien described under the family-sponsored preference, 
employment-based preference, or special immigrant categories. Except 
with respect to immediate relatives of U.S. citizens, immigrant visa 
petitions may also serve to classify derivatives (i.e., spouses and 
unmarried children) of principal beneficiaries as immigrants. See INA 
203(d); 8 U.S.C. 1153(d). USCIS determines, among other things, whether 
an alien has the necessary familial relationship to the U.S. citizen or 
the LPR, has the necessary professional qualifications or skills and 
expertise for the position offered by the U.S. employer, or meets the 
requirements for the specific special immigrant category, before 
approving an immigrant visa petition. Approval of an immigrant visa 
petition does not give the beneficiary any lawful immigration status in 
the United States. If the beneficiary is without lawful status when the 
immigrant visa petition is filed, the beneficiary remains without such 
status even after it is approved. Once approved, the relative, 
employee, or special immigrant who is the beneficiary of the approved 
immigrant visa petition may seek to adjust status to lawful permanent 
residence in the United States or obtain an immigrant visa abroad at a 
U.S. embassy or consulate, if eligible. See INA section 204, 8 U.S.C. 
1154; see also 8 CFR part 204.
    Many aliens present in the United States who are the beneficiaries 
of approved immigrant visa petitions are eligible to adjust to LPR 
status while remaining in the United States. See, e.g., INA section 
245, 8 U.S.C. 1255; 8 CFR part 245. Other aliens, however, are 
ineligible to adjust status in the United States. For example, aliens 
who entered the United States without inspection and admission or 
parole, or who are not in a lawful immigration status, are generally 
ineligible to adjust status in the United States. See INA section 
245(a), (c); 8 U.S.C. 1255(a), (c); see also 8 CFR 245.1(b)-(c) 
(describing aliens who are ineligible to apply for adjustment of status 
or who are restricted from applying unless they meet certain 
conditions). An alien who is unable to adjust status in the United 
States must obtain an immigrant visa at a U.S. Embassy or consulate 
abroad before he or she can be lawfully admitted to the United States 
as an immigrant. An alien who is eligible to apply for adjustment of 
status to lawful permanent residence in the United States can also 
choose to apply for an immigrant visa and obtain that visa at a U.S. 
embassy or consulate abroad through consular processing.
    If an alien seeks an immigrant visa abroad through consular 
processing, USCIS forwards the approved immigrant visa petition to the 
DOS National Visa Center (NVC), which completes initial processing of 
petition-based immigrant visa applications. The NVC notifies the alien 
when he or she

[[Page 43340]]

can start the immigrant visa process and will request, among other 
things, that the alien pay the immigrant visa processing fee and submit 
the necessary documents. After receiving the fee and necessary 
documents, the NVC schedules the alien for an immigrant visa interview 
with a DOS consular officer at a U.S. Embassy or consulate abroad. 
During the interview, the DOS consular officer determines whether the 
alien is admissible to the United States and eligible for an immigrant 
visa.
2. Diversity Visa Program
    An alien may also immigrate to the United States through the 
Diversity Visa program administered by DOS. See INA section 203(c), 8 
U.S.C. 1153(c); 22 CFR 42.33. Under the Diversity Visa program, up to 
55,000 immigrant visas and adjustment of status applications can be 
approved annually for aliens who are from countries with low 
immigration rates to the United States.\2\ See INA section 201(e), 8 
U.S.C. 1151(e). An alien seeking to immigrate as a diversity immigrant 
submits an entry with the Diversity Visa program during the designated 
registration period. After the registration period closes, DOS randomly 
selects aliens from the pool of registrants to continue the Diversity 
Visa process. Being selected to participate in the Diversity Visa 
program does not afford the selectee any lawful immigration status.
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    \2\ INA section 203(c) authorizes up to 55,000 immigrant visas 
each fiscal year for aliens from countries with low admissions 
during the previous five years. However, this number is reduced by 
up to 5,000 for applicants seeking adjustment of status under the 
Nicaraguan Adjustment and Central American Relief Act (NACARA), Pub. 
L. 105-100, title II, secs. 201-204, 111 Stat. 2160, 2193-201 (Nov. 
19, 1997), amended by Pub. L. 105-139, 111 Stat. 2644 (Dec. 2, 1997) 
(8 U.S.C. 1255 note).
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    If selected and eligible, an alien may be authorized to seek LPR 
status either through adjustment of status in the United States or 
through consular processing abroad with DOS. If the alien chooses to 
use the consular process, he or she must submit an immigrant visa 
application (Form DS-260, Immigrant Visa Electronic Application) to the 
DOS Kentucky Consular Center (KCC), which completes initial processing 
of the immigrant visa applications from Diversity Visa program 
selectees and derivatives. If the immigrant visa application is 
complete and an immigrant visa is available, the KCC schedules the 
alien for an immigrant visa interview abroad. The DOS consular officer 
determines whether the alien is admissible to the United States and 
eligible for the immigrant visa. A program selectee or derivative (such 
as the spouse or minor child of a program selectee), however, can 
obtain an immigrant visa only in the fiscal year for which he or she 
was selected, provided the numerical limits have not been reached. See 
22 CFR 42.33(c)-(f).
    Diversity Visa program processing is different from the petition-
based immigrant visa process, as Diversity Visa program selectees and 
their derivatives are not beneficiaries of approved immigrant visa 
petitions. DOS completes initial processing of program selectees and 
derivatives at the KCC instead of at the NVC. The Diversity Visa 
program pre-processing steps aim to ensure that DOS can issue as many 
visas to program selectees and derivatives as possible during the 
particular fiscal year. For example, Diversity Visa program selectees 
and their derivatives submit their immigrant visa applications to the 
KCC without the additional documents required for immigrant visa 
processing. Program selectees and derivatives submit the additional 
required documents to the DOS consular officer as part of the immigrant 
visa interview and process. In addition, unlike immediate-relative, 
family-sponsored, employment-based, and special-immigrant visa 
applicants, Diversity Visa program selectees and their derivatives pay 
their immigrant visa processing fees at their immigrant visa interviews 
rather than before DOS schedules the interviews.

C. Grounds of Inadmissibility

    U.S. immigration laws specify acts, conditions, and conduct that 
bar aliens from being admitted to the United States or from obtaining 
visas, including immigrant visas. See INA section 212(a), 8 U.S.C. 
1182(a) (listing the grounds of inadmissibility). The Secretary has the 
discretion to waive certain inadmissibility grounds if an alien applies 
for a waiver and meets the relevant statutory and regulatory 
requirements. See, e.g., INA section 212(a)(9)(B)(v), 8 U.S.C. 
1182(a)(9)(B)(v); 8 CFR 212.7. If the Secretary grants a waiver of 
inadmissibility, the waived inadmissibility ground no longer bars the 
alien's admission, readmission, or immigrant visa eligibility. See 8 
CFR 212.7(a)(4).

D. Unlawful Presence

    The inadmissibility ground based on the accrual of unlawful 
presence in the United States is found at INA section 212(a)(9)(B)(i), 
8 U.S.C. 1182(a)(9)(B)(i). Under that 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 removal proceedings begin is inadmissible to the United States 
for 3 years from the date of departure. See INA section 
212(a)(9)(B)(i)(I), 8 U.S.C. 1182(a)(9)(B)(i)(I). An alien who was 
unlawfully present in the United States for one year or more and who 
then departs the United States before, during, or after removal 
proceedings is inadmissible for 10 years from the date of departure. 
See INA section 212(a)(9)(B)(i)(II), 8 U.S.C. 1182(a)(9)(B)(i)(II).
    These 3- and 10-year unlawful presence bars do not take effect 
unless and until the alien departs from the United States.\3\ See, 
e.g., Matter of Rodarte-Roman, 23 I. & N. Dec. 905 (BIA 2006); 22 CFR 
40.92(a)-(b). Once the 3- or 10-year unlawful presence bar is 
triggered, the alien must apply for and be granted a waiver of 
inadmissibility before he or she can be issued an immigrant visa and be 
admitted to the United States for permanent residence. The Secretary 
has the discretion to waive the 3- and 10-year unlawful presence bars 
for an alien seeking admission to the United States as an immigrant, if 
he or she demonstrates that the refusal 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).
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    \3\ By statute, certain aliens do not accrue unlawful presence 
for purposes of INA section 212(a)(9)(B)(i), 8 U.S.C. 
1182(a)(9)(B)(i). For example, aliens under the age of 18 do not 
accrue unlawful presence. See INA section 212(a)(9)(B)(iii)(I), 8 
U.S.C. 1182(a)(9)(B)(iii)(I). Similarly, aliens with pending asylum 
claims generally do not accrue unlawful presence while their asylum 
applications are pending. See INA section 212(a)(9)(B)(iii)(II), 8 
U.S.C. 1182(a)(9)(B)(iii)(II). See INA sections 
212(a)(9)(B)(iii)(III), (IV), and (V), 8 U.S.C. 
1182(a)(9)(B)(iii)(III), (IV), and (V) for additional exceptions to 
the accrual of unlawful presence.
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    Because approval of the waiver is discretionary, the alien also 
must establish that he or she merits a favorable exercise of 
discretion. See INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v). 
Accordingly, USCIS may deny a waiver application as a matter of 
discretion, even if the applicant meets all of the other regulatory 
requirements.

E. Form I-601 Waiver Process

1. Form I-601 Waiver Process for Immigrant Visa Applicants Abroad
    The 3- and 10-year unlawful presence bars to admissibility under 
INA section 212(a)(9)(B) do not apply unless and until an alien who 
accrued sufficient unlawful presence departs from the United States. 
Many aliens who would trigger these bars upon departure from the United 
States are ineligible to adjust

[[Page 43341]]

status in the United States and must travel abroad to obtain an 
immigrant visa from DOS. DOS cannot issue an immigrant visa to an 
inadmissible alien unless he or she applies for, and USCIS approves, a 
waiver of inadmissibility, if a waiver is authorized under the INA for 
the specific ground of inadmissibility. See 22 CFR 40.6, 40.9, 
40.92(c).
    Under the Form I-601 waiver process, an immigrant visa applicant 
may file an Application for Waiver of Grounds of Inadmissibility, Form 
I-601, with USCIS after the DOS consular officer makes the 
inadmissibility determination during the immigrant visa interview 
abroad.\4\ Once the alien files the Form I-601 waiver application, he 
or she must remain abroad while USCIS adjudicates the waiver 
application. Currently, USCIS adjudicates these Form I-601 waiver 
applications at the Nebraska Service Center (NSC) in the United 
States.\5\
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    \4\ To be eligible for the waiver, the alien must meet all 
requirements described in INA section 212(a)(9)(B)(v), including the 
requirement to demonstrate that refusing the alien's admission to 
the United States would result in extreme hardship to the alien's 
U.S. citizen or LPR spouse or parent. This same requirement applies 
to the Form I-601A provisional waiver process. The fundamental 
distinction between the Form I-601 and Form I-601A processes is the 
manner in which the applicant applies for the waiver.
    \5\ The alien files the waiver application from abroad by 
sending it to a USCIS ``lockbox'' facility in the United States. In 
limited circumstances, as outlined in the Form I-601 instructions, 
an alien may file a waiver application at a USCIS international 
office.
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    Upon approving the Form I-601 waiver application, USCIS notifies 
DOS so that DOS may issue the immigrant visa if the alien is otherwise 
eligible. If USCIS denies the Form I-601 waiver application, the alien 
remains inadmissible and, therefore, ineligible for an immigrant visa 
and is generally unable to lawfully return to the United States. If the 
alien is inadmissible based on the 3- or 10-year unlawful presence bar, 
he or she must remain outside of the United States for the relevant 3- 
or 10-year period before he or she can reapply for an immigrant visa 
without having to obtain a waiver. An alien may appeal the denial of a 
Form I-601 waiver application with the USCIS Administrative Appeals 
Office (AAO). Alternatively, the alien can file another Form I-601 
waiver application.
2. Difficulties With the Form I-601 Waiver Process
    Immigrant visa applicants typically encounter difficulties when 
seeking waivers of the 3- and 10-year unlawful presence bars through 
the Form I-601 waiver process abroad. After attending the immigrant 
visa interview with DOS, these applicants must gather the necessary 
information and supporting documents, file their Form I-601 waiver 
applications with USCIS, and typically wait abroad for at least several 
months for a decision on their applications based on the average 
adjudication time for Form I-601 waiver applications.\6\ During this 
period, the applicant must endure separation from U.S. citizen and LPR 
family members in the United States. Such separation may cause some 
U.S. citizens, LPRs, and their families to experience emotional and 
financial hardships while the alien relative waits abroad for a 
decision on his or her application. If the waiver is approved, and the 
alien is otherwise eligible for the immigrant visa, the alien must then 
return to DOS to pick up the immigrant visa. Due to these difficulties 
and uncertainties, many alien relatives of U.S. citizens and LPRs are 
reluctant to leave the United States to obtain an immigrant visa.
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    \6\ The average adjudication time of Form I-601 waivers is 
currently five months based on information gathered from USCIS's 
Nebraska Service Center on March 3, 2015. Updated processing times 
for Form I-601 are also posted on the USCIS Web site at: https://egov.uscis.gov/cris/processTimesDisplayInit.do.
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    Inefficiencies in the Form I-601 waiver process also create costs 
for the Federal Government. If a DOS officer at a U.S. Embassy or 
consulate determines that the applicant is inadmissible based on a 
ground that can be waived, the DOS officer informs the applicant about 
the option to file a waiver application with USCIS. After the 
interview, DOS puts the immigrant visa process on hold while waiting 
for the applicant to submit the Form I-601 waiver application and for 
USCIS's decision on the waiver. If a waiver is approved, DOS must 
reschedule the applicant for additional visa processing at a U.S. 
Embassy or consulate, which uses valuable DOS consular officer 
resources that could be used for processing other visa applications.

F. Provisional Waiver Process

1. Creation of the Provisional Waiver Process
    In 2013, DHS sought to partially address the difficulties and 
inefficiencies of the Form I-601 waiver process through rulemaking. DHS 
published a rule establishing a provisional waiver process, which 
streamlines certain aspects of the Form I-601 waiver process, 
facilitates immigrant visa issuance, and promotes family unity. See 78 
FR 536 (Jan. 3, 2013); see also 77 FR 19902 (Apr. 2, 2012) (proposed 
rule). The goal of the provisional waiver process is to reduce the 
adverse impact of the Form I-601 waiver process on families in the 
United States.\7\ In particular, the current provisional waiver process 
permits certain immediate relatives of U.S. citizens who are physically 
present in the United States to apply for a provisional waiver of the 
3- and 10-year unlawful presence bars before departing for their 
immigrant visa interviews abroad. The provisional waiver is available 
to only those aliens who will be inadmissible on account of the 3-year 
or 10-year unlawful presence bar at the time of the immigrant visa 
interview. Aliens who, at the time of the immigrant visa interview, may 
be inadmissible based on another ground of inadmissibility or multiple 
grounds of inadmissibility, are not eligible for provisional waivers. 
USCIS's approval of a provisional waiver allows DOS to issue the 
immigrant visa without the further delay associated with the Form I-601 
waiver process, if the applicant is otherwise eligible. See 8 CFR 
212.7(e).
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    \7\ Promoting family unity has always played a significant role 
in the development of U.S. immigration laws. See, e.g., Holder v. 
Martinez Gutierrez, 132 S. Ct. 2011, 2019 (2012); INS v. Errico, 385 
U.S. 214, 219-20 (1966).
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    DHS initially limited eligibility for provisional waivers to 
immediate relatives of U.S. citizens (spouses, parents and children 
(under the age of 21) of U.S. citizens). The intention was to 
prioritize the family reunification of immediate relatives of U.S. 
citizens over other categories of aliens. Limiting the program also 
allowed DHS to assess the initial effectiveness of a provisional waiver 
process. Accordingly, DHS restricted eligibility for provisional 
waivers to immediate relatives of U.S. citizens who could demonstrate 
that their U.S. citizen spouses or parents would suffer extreme 
hardship if the immediate relatives were refused admission to the 
United States. See 78 FR at 542. Although other aliens are eligible for 
waivers of the 3- and 10-year unlawful presence bars under the Form I-
601 waiver process, the provisional waiver process was not made 
available to them. DHS limited eligibility to immediate relatives able 
to demonstrate extreme hardship to a U.S. citizen spouse or parent. See 
78 FR at 543 (describing rationale for eligibility limitations). 
Immediate relatives who can show extreme hardship to only their LPR 
spouses or parents, and other categories of immigrant visa applicants, 
are ineligible to obtain a provisional waiver under the current 
regulation.\8\
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    \8\ In the 2012 proposed rule, DHS explained that the 
provisional waiver process would not be extended to non-immediate 
relatives of U.S. citizens or immediate relatives who can only show 
extreme hardship to their LPR spouses or parents. See 77 FR 19907. 
Commenters to the proposed provisional waiver rule from April 2, 
2012 objected to both limitations. See 78 FR at 542-543.

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[[Page 43342]]

2. Impact of Provisional Waiver Process
    In the 2013 final rule, DHS noted that it would consider expanding 
provisional waiver eligibility after DHS and DOS assessed the 
effectiveness of the provisional waiver process and the operational 
impact it may have on existing agency processes and resources. See 78 
FR at 542-543 (citing Beach Commc'ns v. FCC, 508 U.S. 307, 316 (1993) 
(observing that policymakers ``must be allowed leeway to approach a 
perceived problem incrementally'')). Preliminary review of the 
provisional waiver process has shown that it can reduce the time that 
relatives are separated from their U.S. citizen families, reduce the 
processing costs incurred by DOS and DHS, limit the number of exchanges 
between DOS and DHS, and reduce the number of immigrant visa cases DOS 
has to either reschedule or place on hold under the Form I-601 waiver 
process. DHS initially anticipated receiving as many as 62,348 
provisional waiver applications per year and allocated resources 
accordingly. USCIS, however, received only about 39,000 applications in 
fiscal year 2014. As a result, both DHS and DOS have determined that 
there would not be a significant operational impact if DHS expanded 
eligibility for provisional waivers to include other statutorily 
eligible aliens who are beneficiaries of approved immigrant visa 
petitions and can establish extreme hardship to their U.S. citizen or 
LPR spouses or parents.

IV. Proposed Changes

    DHS proposes to expand the class of aliens who may be eligible for 
a provisional waiver beyond immediate relatives of U.S. citizens to 
aliens in all statutorily eligible immigrant visa categories. Such 
aliens include family-sponsored immigrants, employment-based 
immigrants, certain special immigrants, and Diversity Visa program 
selectees, together with their derivative spouses and children. See 
proposed 8 CFR 212.7(e)(3)(iv). DHS also proposes to expand who may be 
considered a qualifying relative for purposes of the extreme hardship 
determination to include LPR spouses and parents.
    This proposed expansion will permit any alien seeking an immigrant 
visa who would be eligible to apply for a Form I-601 waiver of unlawful 
presence abroad to now apply for a provisional waiver before leaving 
the United States to attend his or her immigrant visa interview abroad. 
Aliens who will become eligible for a provisional waiver, including 
derivative spouses and children, would still need to meet all other 
requirements of proposed 8 CFR 212.7(e) to obtain the waiver.\9\ Under 
this proposed rule, any alien who meets the eligibility requirements 
for a provisional waiver and who is pursuing consular processing abroad 
can apply for the waiver irrespective of his or her current immigration 
status in the United States.\10\
---------------------------------------------------------------------------

    \9\ Although derivative spouses and children apply for an 
immigrant visa based on their relationship to a principal 
beneficiary, the admissibility determination is made individually 
for each immigrant visa applicant. See INA 212, 221(g), 291, 8 
U.S.C. 1182, 1201(g), 1361; 22 CFR 40.6, 40.92. If the derivative is 
inadmissible, he or she must apply for a provisional waiver and meet 
the eligibility requirements independent of the principal.
    \10\ As stated in the 2013 rule, an alien's current immigration 
status is not relevant for purposes of seeking a provisional waiver 
of an unlawful presence ground of inadmissibility. See 78 FR at 547. 
No alien, including one who is in Temporary Protected Status, has 
received deferred action, or is currently in a lawful nonimmigrant 
status, is barred from seeking a provisional waiver as long as the 
alien meets the eligibility requirements stated in the rule.
---------------------------------------------------------------------------

    DHS does not propose to change any eligibility requirements for a 
provisional waiver other than those described in this rulemaking.

A. Immediate Relatives, Family-Sponsored Immigrants, Employment-Based 
Immigrants, and Certain Special Immigrants

    Under the proposed rule, an alien would be eligible for a 
provisional waiver if, among other criteria, he or she has an immigrant 
visa case pending with DOS based on an approved immigrant visa petition 
and has paid the immigrant visa processing fee. Aliens with an approved 
immigrant visa petition include: \11\
---------------------------------------------------------------------------

    \11\ A Refugee/Asylee Relative Petition, Form I-730, is not an 
immigrant visa petition and is therefore not a basis for filing a 
provisional waiver application.
---------------------------------------------------------------------------

     A beneficiary of an approved Petition for Alien Relative, 
Form I-130, or Petition for Amerasian, Widow(er), and Special 
Immigrant, Form I-360 (classifying the alien as immigrant visa 
applicant under INA section 201(b)(2), 8 U.S.C. 1151(b)(2), or INA 
section 203(a) or (b), 8 U.S.C. 1153(a) or (b));
     A beneficiary of an approved Immigrant Petition for Alien 
Worker, Form I-140 (classifying the alien as immigrant visa applicant 
under INA section 203(b), 8 U.S.C. 1153(b)); and
     A spouse or child, as defined in subparagraph (A), (B), 
(C), (D) or (E) of INA section 101(b)(1), 8 U.S.C. 1101(b)(1), if 
accompanying or following-to-join an alien spouse or parent seeking to 
immigrate under INA section 203(a) or (b), 8 U.S.C. 1153(a) or (b), or 
under INA section 203(d), 8 U.S.C. 1153(d).

B. Diversity Immigrants

    Under the proposed rule, an alien would also be eligible for a 
provisional waiver based on selection by DOS to participate in the 
Diversity Visa program under INA section 203(c), 8 U.S.C. 1153(c) for 
the fiscal year for which the alien registered. Expanding the 
provisional waiver process to Diversity Visa program selectees and 
their derivatives requires USCIS to develop procedures that apply only 
to these applicants because such applicants do not have approved 
immigrant visa petitions. DOS's selection of an alien for the Diversity 
Visa program is for these purposes being considered the functional 
equivalent of having an approved immigrant visa petition. See proposed 
8 CFR 212.7(e)(3)(iv). Additionally, Diversity Visa program processing 
must be completed by the end of the fiscal year for the program year 
for which the alien registered. See INA section 204(a)(1)(I)(ii)(II), 8 
U.S.C. 1154(a)(1)(I)(ii)(II). To meet the time constraints of the 
Diversity Visa program, USCIS would consider an immigrant visa case 
pending as soon as DOS selects the alien for the program. See proposed 
8 CFR 212.7(e)(3)(iv) and 8 CFR 212.7(e)(5)(ii)(F). Because Diversity 
Visa program selectees and derivatives do not have to pay the immigrant 
visa processing fee until the immigrant visa interview, DHS proposes 
that such aliens would not have to provide proof of payment of the 
immigrant visa processing fee when they apply for a provisional waiver. 
See proposed 8 CFR 212.7(e)(3)(iv) and 8 CFR 212.7(e)(5)(ii)(F).

C. Qualifying Relatives

    DHS proposes to expand eligibility for provisional waivers to 
include aliens who can establish extreme hardship to an LPR spouse or 
parent. This proposed expansion would allow immigrant visa applicants, 
including diversity visa applicants, to seek provisional waivers based 
on extreme hardship to all categories of qualifying relatives 
authorized by statute. See proposed 8 CFR 212.7(e)(3)(vi) and 8 CFR 
212.7(e)(8). Although the benefits of this rule largely would accrue to 
the expanded group of aliens newly eligible to apply for provisional 
waivers under the rule, certain immediate relatives of U.S. citizens 
will also experience

[[Page 43343]]

benefits from this rule. For example, an alien who is the beneficiary 
of an immediate relative petition filed by his or her U.S. citizen son 
or daughter--who is not a qualifying relative for purposes of the 
waiver--could seek a provisional waiver based on extreme hardship that 
would be suffered by the alien's LPR spouse.

D. Aliens With Scheduled Immigrant Visa Interviews

    DHS proposes to limit eligibility for provisional waivers under 
this rulemaking to aliens, other than immediate relatives of U.S. 
citizens, who have not had their immigrant visa interviews scheduled 
before the effective date of a final rule. DHS also proposes that 
immediate relatives of U.S. citizens will be eligible to file for 
provisional waivers if they have not had their immigrant visa 
interviews scheduled before January 3, 2013, even if they may not have 
been previously eligible to apply for provisional waivers under the 
current rule.\12\ For these purposes, DHS will use the date that DOS 
initially acted to schedule the immigrant visa interview, not the date 
that the alien is scheduled to appear for the immigrant visa interview.
---------------------------------------------------------------------------

    \12\ Aliens who are immediate relatives of U.S. citizens but who 
can only demonstrate that the denial of admission would cause 
extreme hardship to an LPR spouse or parent (rather than a U.S. 
citizen spouse or parent) are currently ineligible for provisional 
waivers.
---------------------------------------------------------------------------

    As reflected in the 2013 rulemaking, these restrictions are 
necessary to make the process operationally manageable without creating 
delays in the processing of other petitions or applications filed with 
USCIS or in the DOS immigrant visa process. If the proposed rule 
included aliens who were scheduled for an interview prior to the 
effective date of a final rule, the projected volume of cases could 
increase and create backlogs not only in the provisional waiver 
process, but also in adjudication of other USCIS benefits. The 
increased volume could also adversely impact DOS and its immigrant visa 
process.\13\
---------------------------------------------------------------------------

    \13\ Focusing on U.S. citizens and their immediate relative 
family members in the expansion 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).
---------------------------------------------------------------------------

E. Miscellaneous Changes

    This rule also proposes to remove from the affected regulations all 
unnecessary procedural instructions regarding office names and 
locations, position titles and responsibilities, and form numbers. 
Prescribing an office name, such as ``Application Support Center,'' is 
unnecessary and restricts USCIS' ability to vary work locations as 
necessary to address its workload needs, better utilize its resources, 
and serve its customers. See, e.g., proposed 8 CFR 212.7(e)(3)(ii) 
(replacing the term ``USCIS ASC'' with ``location in the United States 
designated by USCIS''). Likewise, requiring a specific form to be filed 
for a certain benefit in the Code of Federal Regulations (CFR) is 
generally unnecessary, and enumerating specific form numbers reduces 
the agency's ability to modify or modernize its business processes to 
address changing needs. See, e.g., proposed 8 CFR 212.7(e)(5)(i) 
(replacing ``Form I-601A'' with ``application for a provisional 
unlawful presence waiver''). Finally, listing specific officer titles 
for consideration of provisional waiver applications restricts USCIS' 
flexibility in the adjudication of immigration benefits. See, e.g., 
proposed 8 CFR 212.7(e)(12)(i)(C) (removing ``consular officer''). 
Authorities and functions of DHS to administer and enforce the 
immigration laws are appropriately delegated to DHS employees and 
others in accordance with section 102(b)(1) of the Homeland Security 
Act of 2002, 6 U.S.C. 112(b)(1); section 103(a) of the INA, 8 U.S.C. 
1103(a); and 8 CFR 2.1.
    In addition, USCIS is proposing to revise 8 CFR 212.7(e)(8) by 
removing the superfluous sentence that states USCIS may require the 
alien and the U.S. citizen petitioner to appear for an interview 
pursuant to 8 CFR 103.2(b)(9). USCIS already has the authority to 
require an applicant or petitioner to appear for an interview under 8 
CFR 103.2(b)(9). USCIS thus retains the authority to require an 
interview regardless of the inclusion of such authority in Sec.  
212.7(e)(8). The cross reference at 8 CFR 212.7(e)(8) was unnecessarily 
redundant.
    Finally, DHS is correcting two errors. First, in 8 CFR 103.2(b), 
DHS is replacing the article ``an'' with the article ``a,'' wherever 
the article appears before the term ``benefit request'' in paragraphs 
(b)(6), (b)(9), (b)(10), and (b)(12). Second, in 8 CFR 212.7(a), DHS is 
removing the title to effectuate the change that was intended to be 
made in the 2013 rule.

F. Benefits of the Proposed Changes

    By making the provisional waiver process available to all aliens 
who are statutorily eligible for the waiver of unlawful presence under 
section 212(a)(9)(B)(v) and meet certain other conditions, DHS would be 
expanding the population of aliens who could benefit from a streamlined 
immigrant visa process. DHS believes that expanding availability of the 
provisional waiver process would likely reduce the overall immigrant 
visa processing time for eligible immigrant visa applicants, thereby 
saving DHS, DOS, and applicants both the time and resources currently 
devoted to the Form I-601 waiver process. DHS also believes that the 
proposed expansion would reduce the hardship that U.S. citizen and LPR 
families experience as a result of separation from their alien 
relatives. Some immediate relatives of U.S. citizens may also benefit 
from the proposal to broaden the group of individuals who can serve as 
qualifying relatives for the provisional waiver's extreme hardship 
determination.

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 proposal to expand eligibility for provisional waivers to 
include the following aliens not covered by the current rule:
     Immediate relatives of U.S. citizens under INA section 
201(b)(2), 8 U.S.C. 1151(b)(2), who can establish extreme hardship to 
an LPR spouse or parent as provided under INA section 212(a)(9)(B)(v);
     Family-sponsored immigrant visa applicants under INA 
section 203(a), 8 U.S.C. 1153(a);
     Employment-based immigrant visa applicants and certain 
special immigrants under INA section 203(b), 8 U.S.C. 1153(b);
     Diversity immigrants under INA section 203(c), 8 U.S.C. 
1153(c); and
     Derivative family members of the above mentioned immigrant 
visa applicants, in accordance with INA section 203(d), 8 U.S.C. 
1153(d).
    b. The proposal to limit eligibility for provisional waivers to 
aliens as follows: (1) for immediate relatives of U.S. citizens, to 
those for whom DOS initially acted to schedule their immigrant visa 
interviews on or after January 3, 2013; and (2) for all other immigrant 
visa applicants, on or after the effective date of the final rule.
    c. Any alternatives to this proposed rule that may be more 
effective than the current provisional waiver process or the amended 
process described in the proposed rule.

[[Page 43344]]

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 and 13563

    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.''
1. Summary
    The proposed expansion of the provisional waiver process would 
create costs and benefits to provisional waiver (Form I-601A) 
applicants, their U.S. citizen or lawful permanent resident (LPR) 
family members, and the Federal Government (namely, U.S. Citizenship 
and Immigration Services (USCIS) and the Department of State (DOS)), as 
summarized in Table 1. This rule would impose fee, time, and travel 
costs on aliens who choose to complete and submit provisional waiver 
applications and biometrics (namely, fingerprints, photograph, and 
signature) to USCIS for consideration. These costs would be $58.5 
million at a 7 percent discount rate and $71.6 million at a 3 percent 
discount rate in present value across the 10-year period of analysis. 
On an annualized basis, the costs are $8.3 million and $8.4 million at 
7 percent and 3 percent, respectively (see Table 1).
    Newly eligible provisional waiver applicants and their U.S. citizen 
or LPR family members would benefit from this rule. Beneficiaries of 
provisional waivers may experience shortened periods of separation from 
their family members living in the United States while they pursue an 
immigrant visa abroad, thus reducing any related financial and 
emotional strain on the family. If finalized, some immediate relatives 
of U.S. citizens may also benefit from the rule's broadened group of 
individuals who can be qualifying relatives for the provisional 
waiver's extreme hardship determination. Additionally, USCIS and DOS 
would continue to benefit from the operational efficiencies gained from 
the provisional waiver's role in streamlining immigrant visa 
application processing, though on a larger scale than currently in 
place.
    In the absence of this rule, DHS assumes that the majority of 
aliens newly eligible for provisional waivers under this rule would 
pursue an immigrant visa through consular processing abroad and apply 
for waivers of unlawful presence through the Form I-601 process. Aliens 
who would otherwise apply for unlawful presence waivers through the 
Form I-601 process would incur fee, time, and travel costs similar to 
aliens applying for waivers through the provisional waiver process. But 
in the absence of this rule, Form I-601 applicants would face longer 
separation times from their family in the United States and less 
certainty regarding their application for the waiver.

                                             Table 1--Total Costs and Benefits of This Rule, Year 1-Year 10
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   10-Year present values                               Annualized values
                                                     ---------------------------------------------------------------------------------------------------
                                                          3% Discount rate         7% Discount rate         3% Discount rate         7% Discount rate
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Costs:
    Quantitative....................................              $71,622,948              $58,520,192               $8,396,394               $8,331,959
Total Benefits:
                                                     ---------------------------------------------------------------------------------------------------
    Qualitative.....................................   Decreased amount of time that U.S. citizens or
                                                         LPRs are separated from their alien family
                                                          members, leading to reduced financial and
                                                           emotional hardship for these families.
                                                       Decreased amount of time that U.S. citizens or
                                                         LPRs are separated from their alien family
                                                          members, leading to reduced financial and
                                                           emotional hardship for these families.
                                                         Federal Government would achieve increased
                                                         efficiencies by streamlining immigrant visa
                                                        processing for aliens seeking inadmissibility
                                                                waivers of unlawful presence.
                                                         Federal Government would achieve increased
                                                         efficiencies by streamlining immigrant visa
                                                        processing for aliens seeking inadmissibility
                                                                waivers of unlawful presence.
                                                       Aliens, and their family members, would receive
                                                         advance notice of USCIS's decision on their
                                                       waiver application prior to leaving the United
                                                          States for their immigrant visa interview
                                                       abroad, offering many the certainty of knowing
                                                         they have been provisionally approved for a
                                                                           waiver.
                                                       Aliens, and their family members, would receive
                                                         advance notice of USCIS's decision on their
                                                       waiver application prior to leaving the United
                                                          States for their immigrant visa interview
                                                       abroad, offering many the certainty of knowing
                                                         they have been provisionally approved for a
                                                                           waiver.

[[Page 43345]]

 
                                                           Certain previously ineligible immediate
                                                          relatives may now qualify for provisional
                                                            waivers due to the broadened group of
                                                       individuals who can be qualifying relatives for
                                                        the waiver's extreme hardship determination.
                                                           Certain previously ineligible immediate
                                                          relatives may now qualify for provisional
                                                            waivers due to the broadened group of
                                                       individuals who can be qualifying relatives for
                                                        the waiver's extreme hardship determination.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: The cost estimates in this table are contingent upon Form I-601A filing (or receipt) projections as well as the discount rates applied for
  monetized values.

2. Background
    Aliens who are in the United States and seeking LPR status must 
either obtain an immigrant visa abroad through consular processing with 
DOS or apply to adjust status in the United States, if eligible. Aliens 
present in the United States without having been inspected and admitted 
or paroled are typically ineligible to adjust their status in the 
United States. To obtain LPR status, such aliens must leave the United 
States for immigrant visa processing at a U.S. Embassy or consulate 
abroad. Because these aliens are present in the United States without 
having been inspected and admitted or paroled, many have already 
accrued enough unlawful presence (more than 180 days) to trigger the 3- 
or 10-year unlawful presence grounds of inadmissibility upon departure 
from the United States. Indeed, in most cases, the action these aliens 
must take to obtain their immigrant visa--departing the United States 
to attend a consular interview--is the very action that triggers the 3- 
or 10-year bar to admissibility due to the accrual of unlawful 
presence. See INA section 212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i). 
While there may be limited exceptions, the population affected by this 
rule would consist almost exclusively of aliens who are eligible for 
immigrant visas but are unlawfully present in the United States without 
having been inspected and admitted or paroled.
    Historically, aliens seeking an immigrant visa through consular 
processing were only able to apply for a waiver of a ground of 
inadmissibility, like a waiver of inadmissibility for unlawful 
presence, after attending their immigrant visa interview abroad. If a 
consular officer identified a ground or grounds of inadmissibility 
during an immigrant visa interview, the immigrant visa applicant was 
tentatively denied an immigrant visa and allowed to complete a waiver 
of the applicable ground(s) of inadmissibility, if a waiver was 
available. The immigrant visa applicant could apply for such a waiver 
by filing an Application for Waiver of Grounds of Inadmissibility, Form 
I-601, with USCIS. Applicants who applied for such waivers were 
required to remain abroad while USCIS adjudicated their Form I-601, 
which currently takes an average of five months to complete.\14\ If 
USCIS granted a waiver of the inadmissibility ground(s), DOS 
subsequently scheduled a follow-up consular interview. Provided there 
were no other concerns raised by the consular officer, DOS generally 
issued the immigrant visa during the follow-up consular interview. For 
some aliens, the Form I-601 waiver process has led to lengthy 
separations of immigrant visa applicants and their U.S. citizen or LPR 
spouses, parents, and children, causing both financial and emotional 
harm. The Form I-601 waiver process has also created processing 
inefficiencies for both USCIS and DOS through repeated interagency 
communication and through multiple consular appointments or interviews.
---------------------------------------------------------------------------

    \14\ This figure is based on Form I-601 average adjudication 
times gathered from USCIS's Nebraska Service Center on March 3, 
2015.
---------------------------------------------------------------------------

    With the goals of streamlining the inadmissibility waiver process, 
facilitating efficient immigrant visa issuance, and promoting family 
unity, DHS promulgated a rule that established an alternative 
inadmissibility waiver process on January 3, 2013 (``2013 rule'').\15\ 
The 2013 rule created a provisional waiver process for certain 
immediate relatives of U.S. citizens (namely, spouses, children, and 
parents of U.S. citizens) who are in the United States, are seeking 
immigrant visas, can demonstrate extreme hardship to a U.S. citizen 
spouse or parent, and would be inadmissible upon departure from the 
United States due to only the accrual of unlawful presence. That 
process allowed such aliens to apply for a provisional waiver prior to 
departing for DOS consular processing of their immigrant visa 
applications. Instead of requiring them to wait abroad while USCIS 
adjudicates their application for a waiver of inadmissibility through 
the Form I-601 waiver process, the provisional waiver process 
established in 2013 allowed those applicants to remain in the United 
States with their U.S. citizen relative(s) while awaiting notification 
of USCIS's decision on their provisional waiver application. Following 
approval of a provisional waiver, applicants are scheduled for their 
immigrant visa interviews abroad.
---------------------------------------------------------------------------

    \15\ See 78 FR 536 (Jan. 3, 2013).
---------------------------------------------------------------------------

    Since the provisional waiver process's inception, USCIS has 
approved more than 44,000 provisional waiver applications (through Form 
I-601A filings) for certain immediate relatives of U.S. citizens,\16\ 
allowing these individuals to enjoy the benefits incident to such 
waivers. Illustrating the demand for provisional waivers, Table 2 
displays the historical numbers of Form I-601A receipts, approvals, and 
denials recorded for March of fiscal year (FY) 2013 through January of 
FY 2015.
---------------------------------------------------------------------------

    \16\ This figure is based on Form I-601A approvals data through 
January 2015. Please note that USCIS began accepting provisional 
waiver applications on March 4, 2013. Source: Data gathered from 
USCIS's Office of Performance and Quality on February 20, 2015.

                   Table 2--Historical Numbers of Form I-601A Receipts, Approvals, and Denials
----------------------------------------------------------------------------------------------------------------
              Fiscal Year                         Month              Receipts        Approvals        Denials
----------------------------------------------------------------------------------------------------------------
2013..................................  Mar.....................           1,306             746             421
                                        Apr.....................           2,737               5               2
                                        May.....................           3,267              52              19

[[Page 43346]]

 
                                        Jun.....................           3,119             226             345
                                        Jul.....................           3,425            1006             763
                                        Aug.....................           3,075            1435             937
                                        Sep.....................           2,798           1,749             458
                                                                 -----------------------------------------------
    FY 2013 Total.....................  ........................          19,727           4,473           2,524
2014..................................  Oct.....................           2,886           1,465             612
                                        Nov.....................           2,697           1,456             577
                                        Dec.....................           2,641           1,708             541
                                        Jan.....................           2,256           1,616             793
                                        Feb.....................           2,483           1,282             574
                                        Mar.....................           2,989           1,216             987
                                        Apr.....................           3,265           1,363             675
                                        May.....................           3,650           2,052             640
                                        Jun.....................           4,184           3,152           1,057
                                        Jul.....................           3,778           4,211           1,451
                                        Aug.....................           3,907           3,914           1,808
                                        Sep.....................           4,237           4,076           1,493
                                                                 -----------------------------------------------
    FY 2014 Total.....................  ........................          38,973          27,511          11,208
2015..................................  Oct.....................           4,540           4,196           1,465
                                        Nov.....................           3,726           2,168             948
                                        Dec.....................           4,103           2,838           1,185
                                        Jan.....................           3,370           3,012           1,443
                                                                 -----------------------------------------------
    FY 2015 Total.....................  ........................          15,739          12,214           5,041
        Cumulative FY 2013-FY 2015      ........................          74,439          44,198          18,773
         Total.
----------------------------------------------------------------------------------------------------------------
Note: Approvals and denials reflect actual cases adjudicated, which do not directly correspond to filing
  receipts for the month.
Source: Data gathered from USCIS's Office of Performance and Quality on March 5, 2015.

3. Purpose of Rule
    Despite the provisional waiver process's benefits to certain 
immediate relatives of U.S. citizens, thousands of non-immediate 
relatives of U.S. citizens and LPRs \17\ seeking immigrant visas who 
are inadmissible to the United States due to only unlawful presence 
still face the financial and emotional burdens of pursuing a Form I-601 
waiver while outside of the country and away from their family in the 
United States. In addition to promoting the goal of family unity 
between eligible non-immediate relatives and their U.S. citizen or LPR 
family members, this rule would increase USCIS and DOS efficiencies by 
streamlining the waiver process for unlawful presence for this expanded 
group of aliens.
---------------------------------------------------------------------------

    \17\ Examples of family relationships that fall into the ``non-
immediate'' category include, but are not limited to, adult sons and 
daughters of U.S. citizens; brothers and sisters of U.S. citizens; 
and spouses and children of LPRs.
---------------------------------------------------------------------------

    To assess the initial effectiveness of the provisional waiver 
process, DHS decided to offer this process to a limited group of aliens 
in the 2013 rule.\18\ Based on the Form I-601 waiver process's 
financial and emotional burdens to families and the efficiencies 
realized for both USCIS and DOS through the provisional waiver process, 
the Secretary directed USCIS to expand eligibility for the provisional 
waiver process beyond certain immediate relatives of U.S. citizens to 
all statutorily eligible relatives of U.S. citizens and LPRs.\19\ 
Consistent with that directive, USCIS (through DHS authority) now 
proposes to extend the provisional waiver process to include all other 
aliens seeking an immigrant visa (hereafter, ``all other immigrant visa 
applicants'') who are statutorily eligible to apply for a waiver of the 
3- or 10-year unlawful presence bar, are present in the United States, 
and otherwise meet the requirements of the provisional waiver 
process.\20\ USCIS also proposes to allow LPR spouses and parents, in 
addition to currently eligible U.S. citizen spouses and parents, to 
serve as qualifying relatives for the provisional waiver's extreme 
hardship determination. Under this proposal, provisional waiver 
applicants could show that their denial of admission would cause 
extreme hardship to their U.S. citizen or LPR spouses or parents.
---------------------------------------------------------------------------

    \18\ See 78 FR at 542 (Jan. 3, 2013).
    \19\ See Memorandum from Jeh Charles Johnson, Secretary, for 
Le[oacute]n Rodr[iacute]guez, Director, U.S. Citizenship and 
Immigration Services, Expansion of the Provisional Waiver Program, 
Nov. 20, 2014, available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_i601a_waiver.pdf.
    \20\ The phrase ``all other immigrant visa applicants'' 
encompasses the following immigrant visa categories: Family-
sponsored immigrants, employment-based immigrants, diversity 
immigrants, and certain special immigrants.
---------------------------------------------------------------------------

    This rule's proposed changes would provide more aliens and their 
U.S. citizen or LPR family members with the provisional waiver's main 
benefit of shortened family separation periods, while increasing USCIS 
and DOS efficiencies by streamlining the immigrant visa process for 
such aliens. Additionally, the proposed changes may allow more 
immediate relatives of U.S. citizens to qualify for provisional waivers 
by broadening the group of individuals who could serve as qualifying 
relatives for the waiver's extreme hardship determination. Other than 
the changes proposed in this rulemaking, DHS would maintain all other 
eligibility requirements for the provisional waiver as currently 
outlined in 8 CFR 212.7(e), including the requirements to submit 
biometrics, pay a $585 application fee and $85 biometric services fee, 
and be currently present in the United States at the time of the 
provisional waiver application filing and biometrics appointment.
4. Current Provisional Waiver Process
    In this analysis, DHS draws on relevant DOS inadmissibility 
statistics and historical provisional waiver application data to 
estimate the demand for provisional waivers occurring in the absence of 
this rule (for certain immediate relatives of U.S. citizens), as well 
as directly resulting from this rule

[[Page 43347]]

(for the expanded population of eligible immigrant visa beneficiaries). 
Table 3 shows DOS's historical immigrant visa inadmissibility findings 
due to only unlawful presence. Between FYs 2010 and 2014, DOS recorded 
inadmissibility due to only unlawful presence for almost 241,000 
immediate relative visas and for nearly 60,000 all other immigrant 
visas.\21\
---------------------------------------------------------------------------

    \21\ Of the inadmissibility figures recorded for all other 
immigrant visa categories, nearly 98 percent corresponded to family-
sponsored (other than immediate relatives of U.S. citizens) 
immigrant visa applications, 1 percent corresponded to employment-
based immigrant visa applications, 1 percent corresponded to 
Diversity Visa immigrant applications, and a fraction of 1 percent 
corresponded to certain special immigrant visa applications.

            Table 3--Number of Immigrant Visa Inadmissibility Findings Due to Only Unlawful Presence
----------------------------------------------------------------------------------------------------------------
                                                                        Visa category type
                                                                 --------------------------------
                           Fiscal year                                               All other         Total
                                                                     Immediate      immigrants
                                                                  relatives \22\       \23\
----------------------------------------------------------------------------------------------------------------
2010............................................................          44,497           4,955          49,452
2011............................................................          45,961          13,162          59,123
2012............................................................          46,520          13,568          60,088
2013............................................................          45,602          14,354          59,956
2014............................................................          58,058          13,946          72,004
                                                                 -----------------------------------------------
    Total.......................................................         240,638          59,985         300,623
----------------------------------------------------------------------------------------------------------------
Source: Data gathered from the U.S. Department of State's Bureau of Consular Affairs on March 25, 2015.

    With the implementation of the 2013 rule, immediate relatives of 
U.S. citizens seeking immigrant visas who were present in the United 
States, demonstrated extreme hardship to their U.S. citizen spouse or 
parent, and were inadmissible only for unlawful presence became 
eligible to apply for provisional waivers. See 8 CFR 212.7(e). Table 4 
compares the number of DOS immediate relative visa inadmissibility 
findings due to only unlawful presence and provisional waiver 
applications filed with USCIS for FYs 2013 and 2014. Because the 
provisional waiver process went into effect in March 2013, immediate 
relatives could file provisional waiver applications only during the 
last seven months of FY 2013.\24\ Thus, for comparison purposes, USCIS 
adjusted DOS's FY 2013 immediate relative visa inadmissibility counts 
to reflect only a partial year (specifically, 7/12 of a year). During 
FYs 2013 and 2014, USCIS received a total of 58,700 provisional waiver 
applications, which represented approximately 70 percent \25\ of the 
population of certain immediate relatives found inadmissible for 
unlawful presence during that same time period.\26\
---------------------------------------------------------------------------

    \22\ Population addressed in the 2013 rule (immediate relatives 
of U.S. citizens).
    \23\ Population impacted by this rule.
    \24\ FY 2013 is October 1, 2012 to September 30, 2013.
    \25\ Calculated as 58,700 2-year total Form I-601A receipts 
divided by 84,659 total immediate relative inadmissibility count for 
March 2013 through FY 2014, which equals 0.693, or 0.70 when rounded 
to the first decimal place.
    \26\ Data gathered from USCIS's Office of Performance and 
Quality Reporting on March 5, 2015.

   Table 4--Number of Immediate Relative Immigrant Visa Inadmissibility Findings Due to Only Unlawful Presence
                                   Compared to Historical Form I-601A Receipts
----------------------------------------------------------------------------------------------------------------
                                        Immediate relative immigrant visa      Immediate relative Form I-601A
                                                 inadmissibility                          receipts
                                     ---------------------------------------------------------------------------
                                                                                                Ratio of Form I-
             Fiscal year                                  Inadmissibility                       601A receipts to
                                       Inadmissibility   findings adjusted    Actual Form I-    inadmissibility
                                           findings       for partial year    601A receipts       findings (%)
 
----------------------------------------------------------------------------------------------------------------
Year 1 (2013).......................             45,602             26,601             19,727                 74
Year 2 (2014).......................             58,058             58,058             38,973                 67
                                     ---------------------------------------------------------------------------
    2-Year Total/Avg................            103,660             84,659             58,700                 70
----------------------------------------------------------------------------------------------------------------
Notes: The provisional waiver process's implementation date was March 4, 2013. DHS adjusted the full year of
  immediate relative immigrant visa inadmissibility counts due to only unlawful presence in 2013 to account for
  only the portion of the year in which the provisional waiver process existed. The data listed in this table
  was rounded.

    The actual Form I-601A filing demands, illustrated in Table 2 and 
Table 4, differ from the estimates in the 2013 rule's economic impact 
analysis. When DHS conducted the 2013 rule's economic impact analysis, 
DHS did not have statistics on unlawful presence inadmissibility 
findings for immediate relatives that would allow for a precise 
calculation of the rule's impact. Due to such limitations, DHS instead 
estimated the rule's impact based on various demand scenarios. In this 
rule's analysis, DHS retrospectively examined DOS data on unlawful 
presence inadmissibility findings for immediate relatives and compared 
this information against USCIS receipts for provisional waiver 
applications (through Form I-601A filings) to determine the future 
demand for provisional waivers.
    When determining a figure upon which to base future inadmissibility 
estimates and subsequent Form I-601A demand, DHS chose to use the 
actual FY 2014 inadmissibility count for unlawful presence rather than 
a multi-year

[[Page 43348]]

average of historical values as the averages did not seem to fully 
capture the general rise in inadmissibility findings occurring between 
FYs 2010 and 2014 (see Table 3).\27\ Consistent with the ratio of 
provisional waiver application filings to immediate relative visa 
inadmissibility counts based solely on unlawful presence during FYs 
2013 and 2014 listed in Table 4, DHS assumes that 70 percent of the 
population of immediate relatives found inadmissible only for unlawful 
presence would file a Form I-601A provisional waiver application. In 
the absence of this rule, DHS projects that the number of immediate 
relative visa inadmissibility findings due to only unlawful presence 
would continue to increase from the FY 2014 count shown in Table 4 
(58,058) by 2.5 percent per year based on the compound annual growth 
rate of the unauthorized immigrant population living in the United 
States between 2000 and 2012.\28\ To calculate future Form I-601A 
filing (or receipt) volumes, DHS multiplies the 70 percent provisional 
waiver filing rate by the annual numbers of immediate relative 
immigrant visa inadmissibility findings due to only unlawful presence. 
Note that when applying this filing rate to yearly inadmissibility 
figures, the numbers may not match those listed in Table 5 due to 
rounding.\29\ DHS originally calculated the estimates in Table 5 using 
unrounded figures. Thereafter, all estimates were simultaneously 
rounded for tabular presentation. In the absence of this rule, USCIS 
would receive a projected 467,000 provisional waiver applications 
across 10 years of analysis, as Table 5 illustrates. These provisional 
waiver applications may ultimately result in waiver approvals or 
denials.
---------------------------------------------------------------------------

    \27\ Both the three-year FY 2012-FY 2014 average (50,060) and 
five-year FY 2010-FY 2014 average (48,128) of immediate relative 
inadmissibility finding counts differed significantly from the FY 
2014 total immediate relative inadmissibility finding count of 
58,058 (see Table 3).
    \28\ Calculated by comparing the estimated unauthorized 
immigrant population living in the United States in 2000 (8,500,000) 
and the estimated unauthorized immigrant population living in the 
United States in 2012 (11,400,000). In recent years, the estimated 
unauthorized immigrant population has decreased. DHS uses the 
historical growth rate in the unauthorized immigrant population from 
2000 to 2012 because it most likely reflects the population impacted 
by this rule. This population includes those who have likely been 
unlawfully present in the United States for an extended period and 
who have already started the immigrant visa process by having an 
approved petition. Source: U.S. Department of Homeland Security's 
Office of Immigration Statistics, Estimates of the Unauthorized 
Immigrant Population Residing in the United States: January 2012, 
Figure 1, Unauthorized Immigrant Population: 2000-2012, Mar. 2013, 
available at http://www.dhs.gov/sites/default/files/publications/ois_ill_pe_2012_2.pdf.
    \29\ For example, using the figures in Table 5, the Year 1 
immediate relative immigrant visa inadmissibility findings count due 
to only unlawful presence equals 59,509. Calculation: 59,909 
multiplied by 0.70 (the Form I-601A filing rate) equals 41,656.3. 
The calculated result differs slightly from the 41,657 Year 1 Form 
I-601A receipts figure in the table.

     Table 5--Projected Numbers of Immediate Relative Immigrant Visa
 Inadmissibility Findings Due to Only Unlawful Presence and Form I-601A
                Applications in the Absence of This Rule
                   [Population addressed in 2013 rule]
------------------------------------------------------------------------
                                  Inadmissibility
                                  findings due to        Form I-601A
          Fiscal year              only unlawful     receipts--immediate
                                presence--immediate     relatives \31\
                                   relatives \30\
------------------------------------------------------------------------
Year 1........................              59,509               41,657
Year 2........................              60,997               42,698
Year 3........................              62,522               43,765
Year 4........................              64,085               44,860
Year 5........................              65,687               45,981
Year 6........................              67,329               47,131
Year 7........................              69,013               48,309
Year 8........................              70,738               49,517
Year 9........................              72,506               50,755
Year 10.......................              74,319               52,023
                               -----------------------------------------
    Total.....................             666,705              466,696
------------------------------------------------------------------------
Notes: The estimates in this table were originally calculated using
  unrounded figures. Thereafter, all estimates were simultaneously
  rounded for tabular presentation. Estimates may not sum to total due
  to rounding.

5. The Population Affected by This Rule
---------------------------------------------------------------------------

    \30\ Population of immediate relatives potentially eligible for 
provisional waivers.
    \31\ Estimated number of provisional waiver applications from 
the eligible population of immediate relatives. These applications 
do not necessarily correspond to waiver approvals.
---------------------------------------------------------------------------

    With this rule's implementation, the number of provisional waiver 
applications would increase from the figures listed in Table 5 as the 
waiver eligibility criteria expands from only certain immediate 
relatives of U.S. citizens to include all other immigrant visa 
applicants who are present in the United States and who otherwise meet 
the requirements of the provisional waiver process.\32\ DHS does not 
believe that this proposed rule would induce any new demand above the 
status quo for petitions or immigrant visa applications for this 
expanded group of aliens. DHS bases this assumption on the fact that 
the immigrant visa categories to which this rule would now apply 
(namely, family-sponsored, employment-based, diversity, and certain 
special immigrant visa categories) are generally subject to statutory 
visa issuance limits and lengthy visa availability waits due to 
oversubscription,\33\ unlike the immediate relative category currently

[[Page 43349]]

eligible for provisional waivers. Furthermore, there is no evidence 
that the Secretary's November 2014 memorandum \34\ on the expansion of 
the provisional waiver process spurred a significant increase in 
filings of the Petition for Alien Relative, Form I-130, or the 
Immigrant Petition for Alien Worker, Form I-140.\35\ Thus, DHS does not 
believe that this rule would increase the demand for the immigrant visa 
categories to which it applies.
---------------------------------------------------------------------------

    \32\ As previously mentioned, the phrase ``all other immigrant 
visa applicants'' encompasses the following immigrant visa 
categories: Family-sponsored immigrants, employment-based 
immigrants, Diversity Visa immigrants, and certain special 
immigrants.
    \33\ Family-sponsored immigrant visa applicants, who represent 
nearly 98 percent of the ``all other immigrant visa applicant'' 
population found inadmissible due to only unlawful presence, 
currently face visa oversubscription. This means that any new 
family-sponsored visa applicants must wait in line for available 
visas. Depending upon the applicant's country of chargeability and 
preference category, this wait could be many years. Source: U.S. 
Department of State, Visa Bulletin for April 2015, IX (79), Mar. 
2015, available at http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-april-2015.html.
    \34\ See Memorandum from Jeh Charles Johnson, Secretary, for 
Le[oacute]n Rodr[iacute]guez, Director, U.S. Citizenship and 
Immigration Services, Expansion of the Provisional Waiver Program, 
Nov. 20, 2014, available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_i601a_waiver.pdf.
    \35\ Based on a DHS comparison of Form I-130 and Form I-140 
filings during the fiscal years before and after the Secretary's 
2014 memorandum on the expansion of the provisional waiver program.
---------------------------------------------------------------------------

    To determine the impact of this rule, DHS employs the same 
projection method used to estimate future volumes of unlawful presence 
inadmissibility findings and provisional waiver applications occurring 
in the absence of this rule. By applying the previously discussed 
historical 2.5 percent compound annual growth rate of unauthorized 
immigrants from 2000 to 2012, to the FY 2014 count of all other 
immigrant visa inadmissibility findings due to only unlawful presence 
(13,946, as listed in Table 3), DHS projects that non-immediate 
relative immigrant visa inadmissibility findings due to only unlawful 
presence would measure approximately 14,295 during this rule's first 
year of implementation (see Table 6).\36\ Based on the current demand 
for provisional waivers, DHS assumes that 70 percent of the ``all other 
immigrant visa applicant'' population found inadmissible due to only 
unlawful presence each year would apply for a provisional waiver 
annually (see Table 6). Note that when applying this 70 percent filing 
rate to the inadmissible population estimates in Table 6, the numbers 
may not match those in the table due to rounding. The estimates in 
Table 6 were originally calculated using unrounded figures. Thereafter, 
all estimates were simultaneously rounded for tabular presentation.
---------------------------------------------------------------------------

    \36\ FY 2014 ``all other immigrant visa applicants'' count found 
inadmissible due to only unlawful presence of 13,946 multiplied by 
2.5 percent growth rate (that is, 1.025), which equals 14,295 non-
immediate relative immigrant visa applicants found inadmissible due 
to only unlawful presence (rounded).
---------------------------------------------------------------------------

    Table 6 outlines the population of all other immigrant visa 
applicants impacted by this rule. During this rule's first year of 
implementation, DHS projects that USCIS could receive approximately 
10,006 provisional waiver applications from newly eligible non-
immediate relatives.\37\ Across a 10-year period of analysis, DHS 
estimates that inadmissibility findings based solely on unlawful 
presence for non-immediate relatives would total about 160,000, while 
provisional waiver applications from this population of inadmissible 
non-immediate relative immigrants would measure nearly 112,000. These 
provisional waiver applications may ultimately result in waiver 
approvals or denials. Note that Table 6 presents only the additional 
Form I-601A filings that would occur as a result of this rule; it does 
not account for the provisional waiver applications that DHS 
anticipates would be filed in the absence of this rule by certain 
immediate relatives of U.S. citizens (listed in Table 5).
---------------------------------------------------------------------------

    \37\ Year 1's 14,295 non-immediate relative immigrant visa 
applicant count found inadmissible due to only unlawful presence 
multiplied by a 70 percent filing rate (0.70), which equals 10,006 
Form I-601A receipts.
    \38\ Population of immigrants newly eligible under this rule for 
provisional waivers.
    \39\ Estimated number of provisional waiver applications from 
the eligible population of all other immigrants. These applications 
do not necessarily correspond to waiver approvals.

 Table 6--Projected Numbers of All Other Immigrant Visa Inadmissibility
   Findings Due to Only Unlawful Presence and Form I-601A Applications
                        Resulting From This Rule
------------------------------------------------------------------------
                                     Inadmissibility
                                     findings due to   Total Form I-601A
                                      only unlawful      receipts--All
            Fiscal year               presence-- All    other immigrants
                                     other immigrants         \39\
                                           \38\
------------------------------------------------------------------------
Year 1............................             14,295             10,006
Year 2............................             14,652             10,256
Year 3............................             15,018             10,513
Year 4............................             15,394             10,776
Year 5............................             15,779             11,045
Year 6............................             16,173             11,321
Year 7............................             16,577             11,604
Year 8............................             16,992             11,894
Year 9............................             17,417             12,192
Year 10...........................             17,852             12,496
                                   -------------------------------------
    Total.........................            160,149            112,103
------------------------------------------------------------------------
Notes: The estimates in this table were originally calculated using
  unrounded figures. Thereafter, all estimates were simultaneously
  rounded for tabular presentation. Estimates may not sum to total due
  to rounding.

    In addition to the non-immediate relative population affected by 
this rule illustrated in Table 6, this rule's broadened group of 
qualifying relatives for the provisional waiver's extreme hardship 
determination may impact some immediate relatives of U.S. citizens. 
Yet, the exact number of such immediate relatives is unknown. DHS 
welcomes any public comments on the population projections used in this 
analysis.
6. Costs and Benefits
    To summarize, aliens who are immediate relatives of U.S. citizens 
and who are currently eligible for provisional waivers would continue 
to apply for such waivers in the absence of this rule. At the time of 
the 2013 rule, DHS was unable to predict the likely application volumes 
of Form I-601A with precision. With additional information from DOS and 
the experience since the provisional waiver's inception, DHS can 
reasonably project the provisional waiver application rate from 
currently eligible immediate relatives who trigger unlawful presence 
bars. In fact, DHS

[[Page 43350]]

estimates that USCIS would receive 467,000 provisional waiver 
applications from currently eligible immediate relatives of U.S. 
citizens across 10 years of analysis (see Table 5). Table 5 represents 
the baseline of immediate relatives of U.S. citizens that would trigger 
unlawful presence bars, and those that would likely apply for a 
provisional waiver based on recent application rates. This proposed 
rule would expand eligibility for the provisional waiver process to 
include individuals who fall within all other immigrant visa 
classifications, are statutorily eligible to apply for a waiver of the 
3- or 10-year unlawful presence bar, are present in the United States, 
and otherwise meet the requirements of the provisional waiver 
process.\40\ As illustrated in Table 6, DHS estimates that provisional 
waiver applications from the population of newly eligible non-immediate 
relative immigrants would measure nearly 112,000 across a 10-year 
period of analysis. As previously mentioned, this proposed rule could 
also impact some immediate relatives of U.S. citizens by amending the 
definition of qualifying relatives for purposes of extreme hardship 
determinations, but the exact number is unknown. Accordingly, DHS 
analyzes the costs and benefits of this rule to the population of newly 
eligible non-immediate relatives expected to apply for provisional 
waivers (see Table 6, ``Total Form I-601A Receipts--All Other 
Immigrants'' column), while qualitatively discussing the rule's 
potential impact on immediate relatives of U.S. citizens who would now 
qualify for provisional waivers under this proposed rule.
---------------------------------------------------------------------------

    \40\ ``All other immigrant visa applicants'' encompass the 
following immigrant visa categories: Family-sponsored, employment-
based, diversity, and certain special immigrants.
---------------------------------------------------------------------------

Costs
    Applicants from the expanded population of aliens who are newly 
eligible to apply for a provisional waiver under this proposed rule 
would bear the costs of this regulation. Certain immediate relatives of 
U.S. citizens already eligible to apply for a provisional waiver would 
not incur costs from this rule.\41\ Although the waiver expansion may 
require USCIS to expend resources on additional adjudication personnel, 
associated equipment (e.g., computers and telephones), and related 
occupancy demands, USCIS expects these costs to be offset by the 
additional fee revenue collected from the $585 Form I-601A filing fee 
and the $85 biometric services fee.\42\ Accordingly, DHS does not 
believe that this rule would impose additional net costs on the agency.
---------------------------------------------------------------------------

    \41\ See 78 FR 536 (Jan. 3, 2013).
    \42\ Fee information gathered from USCIS, ``I-601A, Application 
for Provisional Unlawful Presence Waiver,'' available at http://www.uscis.gov/i-601a (last updated Mar. 3, 2015). The $585 Form I-
601A filing fee and the $85 biometric services fee are subject to 
change through the normal fee review cycle and any subsequent 
rulemaking issued by USCIS. USCIS will consider the impact of the 
provisional waiver and biometrics process workflows and resource 
requirements as a normal part of its biennial fee review. The 
biennial fee review determines if fees for immigration benefits are 
sufficient in light of resource needs and filing trends. See INA 
section 286(m), 8 U.S.C. 1356(m).
---------------------------------------------------------------------------

    To receive a provisional waiver under this rule, eligible aliens 
must first complete a Form I-601A and submit it to USCIS with its $585 
filing fee and $85 biometric services fee. DHS estimates the time 
burden of completing Form I-601A to be 1.5 hours, which translates to a 
time, or opportunity, cost of $15.89 per application.\43\ DHS 
calculates the Form I-601A application's opportunity cost to aliens by 
first multiplying the current Federal minimum wage of $7.25 per hour by 
1.46 to account for the full cost of employee benefits (such as paid 
leave, insurance, and retirement), which results in a time value of 
$10.59 per hour.\44\ Then, DHS multiplies the $10.59 hourly time value 
by the current 1.5-hour Form I-601A completion time burden to determine 
the opportunity cost for aliens to complete Form I-601A ($15.89). DHS 
recognizes that the aliens impacted by the rule are generally 
unlawfully present and not eligible to work; however, consistent with 
other DHS rulemakings, DHS uses wage rates as a mechanism to estimate 
the opportunity costs to aliens associated with completing this rule's 
required application and biometrics collection. The cost for aliens to 
initially file a Form I-601A, including only the $585 filing fee and 
opportunity cost, equals $600.89.
---------------------------------------------------------------------------

    \43\ See 79 FR 36543 (June 27, 2014) for the estimated Form I-
601A completion time burden.
    \44\ Federal minimum wage information gathered from the U.S. 
Department of Labor, Wage and Hour Division, available at http://www.dol.gov/dol/topic/wages/minimumwage.htm (last accessed Mar. 5, 
2015). Employer benefits adjustment information gathered from the 
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, September 2014.'' 
Dec. 10, 2015, available at http://www.bls.gov/news.release/ecec.htm.
---------------------------------------------------------------------------

    After USCIS receives an alien's completed Form I-601A and its 
filing and biometric services fees, the agency sends the alien a notice 
scheduling him or her to visit a USCIS Application Support Center (ASC) 
for biometrics collection. Along with an $85 biometric services fee, 
the applicant would incur the following costs to comply with the 
provisional waiver's biometrics submission requirement: the opportunity 
cost of traveling to an ASC, the opportunity cost of submitting his or 
her biometrics, and the mileage cost of traveling to an ASC. While 
travel times and distances vary, DHS estimates that an applicant's 
average roundtrip distance to an ASC is 50 miles, and that the average 
time for that trip is 2.5 hours. DHS estimates that an alien waits an 
average of 1.17 hours for service and to have his or her biometrics 
collected at an ASC, adding up to a total biometrics-related time 
burden of 3.67 hours.\45\ By applying the $10.59 hourly time value for 
aliens to the total biometrics-related time burden, DHS finds that the 
opportunity cost for a provisional waiver applicant to travel to and 
from an ASC, and to submit biometrics, would total $38.87.\46\ In 
addition to the opportunity cost of providing biometrics, provisional 
waiver applicants would experience travel costs related to biometrics 
collection. The cost of such travel would equal $28.75 per trip, based 
on the 50-mile roundtrip distance to an ASC and the General Services 
Administration's (GSA) travel rate of $0.575 per mile.\47\ DHS assumes 
that each alien would travel independently to an ASC to submit his or 
her biometrics, meaning that this rule would impose a time cost on each 
of these applicants. Adding the fee, opportunity, and travel costs of 
biometrics collection together, DHS estimates that the provisional 
waiver's requirement to submit biometrics would cost a total of $152.62 
per Form I-601A filing.
---------------------------------------------------------------------------

    \45\ See 79 FR 36543 (June 27, 2014) for Form I-601A biometrics 
collection time burden.
    \46\ 3.67 hours multiplied by $10.59 per hour equals $38.87.
    \47\ 50 miles multiplied by $0.575 per mile equals $28.75. See 
79 FR 78437 (Dec. 30, 2014) for GSA mileage rate.
---------------------------------------------------------------------------

    Once all of the aforementioned fee, time, and travel costs to 
comply with the provisional waiver's requirements are accounted for, 
DHS finds that each Form I-601A filing would cost an alien $753.51. 
Table 7 shows that the overall cost of this rule to the expanded 
population of provisional waiver applicants (namely, non-immediate 
relatives of U.S. citizens and LPRs) would measure $84.5 million 
(undiscounted) over the 10-year period of analysis. DHS calculates this 
rule's total cost to applicants by multiplying

[[Page 43351]]

the individual cost of completing the provisional waiver application 
requirements ($753.51) by the number of newly eligible aliens projected 
to apply for provisional waivers each year following the implementation 
of this rule (listed in Table 6). In present value terms, this rule 
would cost newly eligible non-immediate relative waiver applicants 
$58.5 million to $71.6 million across a 10-year period, depending on 
the discount rate applied (see Table 7). Because this rule would not 
generate any net costs to USCIS, Table 7 also illustrates the total 
cost of this rule.

  Table 7--Total Cost of This Rule to Non-Immediate Relative Applicants
------------------------------------------------------------------------
                                                           Total waiver
                       Fiscal year                            cost to
                                                            applicants
------------------------------------------------------------------------
Year 1..................................................      $7,539,621
Year 2..................................................       7,727,999
Year 3..................................................       7,921,651
Year 4..................................................       8,119,824
Year 5..................................................       8,322,518
Year 6..................................................       8,530,487
Year 7..................................................       8,743,730
Year 8..................................................       8,962,248
Year 9..................................................       9,186,794
Year 10.................................................       9,415,861
                                                         ---------------
    10-Year Total: Undiscounted.........................      84,470,732
    10-Year Total: Present Value, Discounted at 3             71,622,948
     percent............................................
    10-Year Total: Present Value, Discounted at 7             58,520,192
     percent............................................
------------------------------------------------------------------------
Notes: Estimates may not sum to total due to rounding. The cost
  estimates in this table are contingent upon Form I-601A filing (or
  receipt) projections as well as the discount rates applied.

    DHS welcomes any public comments on the costs of this proposed 
rule.
Benefits
    The benefits of this proposed rule are largely the result of 
streamlining the immigrant visa process for an expanded population of 
aliens who are inadmissible to the United States solely due to unlawful 
presence. For those aliens who are newly eligible for a provisional 
waiver and their U.S. citizen or LPR family members, the primary 
benefits of this rule are its reduced separation time among family 
members during the immigrant visa process for aliens granted waivers 
and improved predictability of the immigrant visa process. Instead of 
attending multiple immigrant visa interviews and waiting abroad while 
USCIS adjudicates a waiver application as required under the Form I-601 
waiver process, the provisional waiver process allows aliens to file a 
provisional waiver application and remain in the United States while it 
is adjudicated by USCIS. This process generally allows eligible 
provisional waiver applicants to stay with their family members in the 
United States while awaiting adjudication and to receive advance notice 
of USCIS's decision on their waiver application prior to leaving the 
United States for their immigrant visa interview abroad. Although DHS 
cannot estimate with precision the exact amount of separation time 
families would save through this rule, DHS estimates that some newly 
eligible provisional waiver applicants and their U.S. citizen or LPR 
family members could experience several months of reduced separation 
time based on the average adjudication time for Form I-601 waiver 
applications.\48\ In addition to the humanitarian and emotional 
benefits derived from reduced separation of families, DHS anticipates 
that the shortened periods of family separation resulting from this 
rule may lessen the financial burden U.S. citizens and LPRs face to 
support their relatives while they remain outside of the country. 
Because of data limitations, however, DHS cannot predict the exact 
financial impact of this change.
---------------------------------------------------------------------------

    \48\ The average adjudication time of Form I-601 waivers is 
currently five months based on information gathered from USCIS's 
Nebraska Service Center on March 3, 2015. Updated processing times 
for Form I-601 are also posted on the USCIS Web site at: https://egov.uscis.gov/cris/processTimesDisplayInit.do.
---------------------------------------------------------------------------

    Due to the unique nature of the Diversity Visa program, aliens 
seeking an immigrant visa through that program and wishing to use the 
provisional waiver process are likely to enjoy fewer overall benefits 
from this rule than other non-immediate relative immigrant visa and 
waiver applicants. Although an alien may be selected to participate in 
the Diversity Visa program, he or she may not ultimately receive an 
immigrant visa due to visa unavailability. Under this proposed rule, 
Diversity Visa selectees and their derivatives who wish to use the 
provisional waiver process may file a waiver application in advance of 
knowing whether their immigrant visa will ultimately be available to 
them. For those provisional waiver applicants pursuing the Diversity 
Visa track, the risk of completing the provisional waiver process 
without being issued a visa is higher compared to applicants of other 
immigrant visa categories filing Form I-601A.\49\ If a Diversity Visa 
program selectee's provisional waiver is approved but he or she is not 
ultimately issued an immigrant visa, he or she would incur the costs 
but not the benefits associated with a provisional waiver.
---------------------------------------------------------------------------

    \49\ There is a statutory maximum of only 55,000 diversity visas 
authorized for allocation each fiscal year, but this number is 
reduced by up to 5,000 visas set aside exclusively for use under the 
Nicaraguan and Central American Relief Act. See NACARA section 
203(d), as amended. DOS regularly selects more than 50,000 entrants 
to proceed on to the next step for diversity visa processing to 
ensure that all of the 50,000 diversity visas are allotted. Source: 
U.S. Department of State, Office of the Spokesman. Special Briefing: 
Senior State Department Official on the Diversity Visa Program. May 
13, 2011, available at http://www.state.gov/r/pa/prs/ps/2011/05/166811.htm.
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    Although the main benefits of this rule would center on the 
expanded group of aliens newly eligible to apply for provisional 
waivers, certain immediate relatives of U.S. citizens may also 
experience benefits from this rule. Through this rulemaking, DHS 
proposes to allow LPR spouses and parents, in addition to currently 
eligible U.S. citizen spouses and parents, to serve as qualifying 
relatives for the provisional waiver's extreme hardship determination. 
This change may allow some immediate relatives of U.S. citizens 
(included in Table 5's inadmissible immediate relative estimates) to 
now qualify for a provisional waiver, although the exact number of 
individuals who would benefit from this change is unknown due to data 
limitations.
    Based on USCIS and DOS efficiencies realized as a result of the 
current provisional waiver process, DHS believes that this rule could 
provide additional Federal Government efficiencies through its 
expansion to a larger population of aliens. As previously described in 
the 2013 rule, the provisional waiver process allows USCIS to 
communicate to DOS the status of an unlawful presence inadmissibility 
waiver prior to a waiver applicant's immigrant visa interview abroad. 
Such early communication eliminates the current need for USCIS and DOS 
to transfer cases repeatedly between the two agencies when adjudicating 
an immigrant visa application and Form I-601 waiver application.\50\ 
Through the provisional waiver process, DOS receives advance 
notification from USCIS of the discretionary decision to provisionally 
waive the unlawful presence inadmissibility bar, which allows for 
better allocation of valuable agency

[[Page 43352]]

resources like time, storage space, and human capital.
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    \50\ See 78 FR 536 (Jan. 3, 2013).
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    DHS welcomes any public comments on the benefits of this proposed 
rule.

D. 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 (Mar. 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 would 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 
not, for purposes of the Regulatory Flexibility Act, within the 
definition of small entities established by 5 U.S.C. 601(6).

E. Executive Order 13132

    This proposed rule would 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.

F. 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 rule meets the relevant standards of Executive Order 12988.

G. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, 
Departments are required to submit to the Office of Management and 
Budget (OMB), for review and approval, any reporting requirements 
inherent in a rule. This rule proposes a revision to the Application 
for a Provisional Unlawful Presence Waiver, Form I-601A, OMB Control 
Number 1615-0123. USCIS estimates that approximately 10,258 new 
respondents would file applications for provisional waivers as a result 
of the changes proposed by this rule.
    DHS is requesting comments on the revisions it is proposing to make 
to this information collection until September 21, 2015.
    In accordance with the Paperwork Reduction Act (PRA) of 1995, the 
information collection notice is published in the Federal Register to 
obtain comments regarding the nature of the information collection, the 
categories of respondents, the estimated burden (i.e., the time, 
effort, and resources used by the respondents to respond), the 
estimated cost to the respondent, and the actual information collection 
instruments. When submitting comments on this information collection, 
your comments should address one or more of the following four points:
    (1) Evaluate whether the proposed 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 proposed 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 This Information Collection

    (1) Type of Information Collection: Revision of a Currently 
Approved Collection.
    (2) Title of the Form/Collection: Application for Provisional 
Unlawful Presence Waiver.
    (3) Agency form number, if any, and the applicable component of the 
DHS sponsoring the collection: I-601A; USCIS.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Individuals or households: 
Individuals who: (a) Are immigrant visa applicants, including: (1) 
Immediate relatives of U.S. citizens, (2) aliens seeking to immigrate 
under a family-sponsored, employment-based, or special immigrant visa 
category, and (3) Diversity Visa selectees and derivatives, and (b) are 
applying from within the United States for a provisional waiver under 
INA section 212(a)(9)(B)(v) before obtaining an immigrant visa abroad.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: The estimated 
total number of respondents for the information collection I-601A is 
52,965 and the estimated hour burden per response is 1.5 hours; and 
52,965 respondents providing biometrics at 1.17 hours.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: The total estimated annual hour burden associated 
with this collection is 141,417 hours.
    (7) An estimate of the total public burden (in cost) associated 
with the collection: The estimated total annual cost burden associated 
with this collection of information is $1,497,601.

List of Subjects

8 CFR Part 103

    Administrative practice and procedure, 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--IMMIGRATION BENEFITS; BIOMETRIC REQUIREMENTS; 
AVAILABILITY OF RECORDS

0
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; 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; Pub. L. 112-54.


Sec.  103.2  [Amended]

0
2. Section 103.2 is amended by:

[[Page 43353]]

0
a. In paragraphs (a)(2) and (3) and (b)(6) and (10) by removing ``an 
benefit request'' and adding in its place ``a benefit request'', 
wherever it appears; and
0
b. In paragraph (b)(12) by removing ``An benefit request'' and adding 
in its place ``A benefit request'', wherever it appears.

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

0
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, Public Law 110-229, 122 Stat. 754, 
854.

0
4. Amend Sec.  212.7 by:
0
a. Removing the heading for paragraph (a);
0
b. Revising paragraphs (e) heading and introductory text and (e)(3)(i), 
(ii), (iii), (iv), (v), and (vi);
0
c. Remove paragraph (e)(3)(vii); and
0
d. Revising paragraphs (e)(4)(iii), (iv), (v), and (vi), (e)(5)(i), 
(e)(5)(ii)(E), (F), and (G), (e)(6)(ii), (e)(7), (8), (9), and (10), 
(e)(12)(i)(C), (e)(12)(ii), and (e)(14)(i), (iii), and (iv).
    The revisions read as follows:


Sec.  212.7  Waivers of certain grounds of inadmissibility.

* * * * *
    (e) Provisional unlawful presence waivers of inadmissibility. The 
provisions of this paragraph (e) apply to certain aliens who are 
pursuing consular immigrant visa processing.
* * * * *
    (3) * * *
    (i) Is present in the United States at the time of filing the 
application for a provisional unlawful presence waiver;
    (ii) Provides biometrics to USCIS at a location in the United 
States designated by USCIS;
    (iii) Upon departure, would be inadmissible only under section 
212(a)(9)(B)(i) of the Act at the time of the immigrant visa interview;
    (iv) Has a case pending with the Department of State, based on:
    (A) An approved immigrant visa petition, for which the Department 
of State immigrant visa processing fee has been paid; or
    (B) Selection by the Department of State to participate in the 
Diversity Visa Program under section 203(c) of the Act for the fiscal 
year for which the alien registered;
    (v) Will depart from the United States to obtain the immigrant 
visa; and
    (vi) Meets the requirements for a waiver provided in section 
212(a)(9)(B)(v) of the Act.
    (4) * * *
    (iii) The alien does not have a case pending with the Department of 
State, based on:
    (A) An approved immigrant visa petition, for which the Department 
of State immigrant visa processing fee has been paid; or
    (B) Selection by the Department of State to participate in the 
Diversity Visa program under section 203(c) of the Act for the fiscal 
year for which the alien registered;
    (iv) The Department of State initially acted to schedule the 
immigrant visa interview:
    (A) Before January 3, 2013, for an immediate relative of a U.S. 
citizen with an approved immediate relative petition on which a 
provisional unlawful presence waiver is based, even if the interview 
was cancelled or rescheduled on or after January 3, 2013; or
    (B) For all other immigrant visa applicants, before [EFFECTIVE DATE 
OF FINAL RULE], for the approved immigrant visa petition or the 
Diversity Visa program application on which a provisional unlawful 
presence waiver is based, even if the interview was cancelled or 
rescheduled on or after [EFFECTIVE DATE OF FINAL RULE];
    (v) The alien is in removal proceedings, unless the removal 
proceedings are administratively closed and have not been recalendared 
at the time of filing the application for a provisional unlawful 
presence waiver;
    (vi) The alien is subject to a final order of removal issued under 
section 217, 235, 238, or 240 of the Act or a final order of exclusion 
or deportation under former section 236 or 242 of the Act (pre-April 1, 
1997), or any other provision of law (including an in absentia removal 
order under section 240(b)(5) of the Act);
* * * * *
    (5) Filing. (i) An application for a provisional unlawful presence 
waiver of the unlawful presence inadmissibility bars under section 
212(a)(9)(B)(i)(I) or (II) of the Act, including an application by an 
alien in removal proceedings that are administratively closed and have 
not been recalendared at the time of filing the application for a 
provisional unlawful presence waiver, 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) * * *
    (E) Does not include evidence of:
    (1) An approved immigrant visa petition;
    (2) Selection by the Department of State to participate in the 
Diversity Visa Program under section 203(c) of the Act for the fiscal 
year for which the alien registered; or
    (3) Eligibility as a derivative beneficiary of an approved 
immigrant visa petition or of an alien selected for participation in 
the Diversity Visa Program as provided in this section and outlined in 
section 203(d) of the Act.
    (F) Fails to include documentation evidencing:
    (1) That the alien has paid the immigrant visa processing fee to 
the Department of State for the immigrant visa application upon which 
the alien's approved immigrant visa petition is based; or
    (2) In the case of a Diversity immigrant, that the Department of 
State selected the alien to participate in the Diversity Visa Program 
for the fiscal year for which the alien registered; or
    (G) Has indicated on a provisional unlawful presence waiver 
application that the Department of State initially acted to schedule 
the immigrant visa interview:
    (1) Before January 3, 2013, for an immediate relative of a U.S. 
citizen with an approved immediate relative petition on which a 
provisional unlawful presence waiver is based, even if the interview 
was cancelled or rescheduled on or after January 3, 2013; or
    (2) For all other immigrant visa applicants, before [EFFECTIVE DATE 
OF FINAL RULE], for the approved immigrant visa petition or the 
Diversity Visa Program application upon which a provisional unlawful 
presence waiver is based, even if the interview was cancelled or 
rescheduled on or after [EFFECTIVE DATE OF FINAL RULE].
    (6) * * *
    (ii) Failure to appear for biometric services. If an alien fails to 
appear for a biometric services appointment or fails to provide 
biometrics in the United States as directed by USCIS, a provisional 
unlawful presence waiver application will be considered abandoned and 
denied under 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.
    (7) Burden and standard of proof. The alien has the burden to 
establish, by a preponderance of the evidence, eligibility for a 
provisional unlawful presence waiver as described in this paragraph, 
and under section 212(a)(9)(B)(v) of the Act, including that

[[Page 43354]]

the alien merits a favorable exercise of discretion.
    (8) Adjudication. USCIS will adjudicate a provisional unlawful 
presence waiver application in accordance with this paragraph and 
section 212(a)(9)(B)(v) of the Act. If USCIS finds that the alien is 
not eligible for a provisional unlawful presence waiver, or if USCIS 
determines in its discretion that a waiver is not warranted, 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.
    (9) Notice of decision. USCIS will notify the alien and the alien's 
attorney of record or accredited representative of the decision in 
accordance with 8 CFR 103.2(b)(19). USCIS may notify the Department of 
State of the denial of an application for a provisional unlawful 
presence waiver. A denial is without prejudice to the alien's filing 
another provisional unlawful presence waiver application under this 
paragraph (e), provided the alien meets all of the requirements in this 
part, including that the alien's case must be pending with the 
Department of State. An alien also may elect to file a waiver 
application under paragraph (a)(1) of this section after departing the 
United States, appearing for his or her immigrant visa interview at the 
U.S. Embassy or consulate abroad, and after the Department of State 
determines the alien's admissibility and eligibility for an immigrant 
visa. Accordingly, denial of an application 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.
    (10) Withdrawal of waiver applications. An alien may withdraw his 
or her application for a provisional unlawful presence waiver at any 
time before USCIS makes a final decision. Once the case is withdrawn, 
USCIS will close the case and notify the alien and his or her attorney 
or accredited representative. The alien may file a new application for 
a provisional unlawful presence waiver, in accordance with the form 
instructions and required fees, provided that the alien meets all of 
the requirements included in this paragraph (e).
* * * * *
    (12) * * *
    (i) * * *
    (C) Is determined to be otherwise eligible for an immigrant visa by 
the Department of State 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 immigrant based on the 
approved immigrant visa petition upon which a provisional unlawful 
presence waiver application is based or selection by the Department of 
State to participate in the Diversity Visa Program under section 203(c) 
of the Act for the fiscal year for which the alien registered, with 
such selection being the basis for the alien's provisional unlawful 
presence waiver application;
* * * * *
    (14) * * *
    (i) The Department of State determines at the time of the immigrant 
visa interview that the alien is ineligible to receive an immigrant 
visa for any reason other than under section 212(a)(9)(B)(i)(I) or (II) 
of the Act;
* * * * *
    (iii) The immigrant visa registration is terminated in accordance 
with section 203(g) of the Act, and has not been reinstated in 
accordance with section 203(g) of the Act; or
    (iv) The alien, at any time before or after approval of a 
provisional unlawful presence waiver or before an immigrant visa is 
issued, reenters or attempts to reenter the United States without being 
inspected and admitted or paroled.

Jeh Charles Johnson,
Secretary.
[FR Doc. 2015-17794 Filed 7-21-15; 8:45 am]
 BILLING CODE 9111-97-P