Federal Register, Volume 81 Issue 146 (Friday, July 29, 2016)

[Federal Register Volume 81, Number 146 (Friday, July 29, 2016)]
[Rules and Regulations]
[Pages 50244-50277]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17934]

[[Page 50243]]

Vol. 81

Friday,

No. 146

July 29, 2016

Part V

Department of Homeland Security

-----------------------------------------------------------------------

8 CFR Parts 103 and 212

Expansion of Provisional Unlawful Presence Waivers of Inadmissibility;
Final Rule

Federal Register / Vol. 81 , No. 146 / Friday, July 29, 2016 / Rules
and Regulations

[[Page 50244]]

-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 103 and 212

[CIS No. 2557-2014; DHS Docket No. USCIS-2012-0003]
RIN 1615-AC03

Expansion of Provisional Unlawful Presence Waivers of
Inadmissibility

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule, consistent with the Immigration and
Nationality Act (INA), expands the class of individuals who may be
eligible for a provisional waiver of certain grounds of inadmissibility
based on the accrual of unlawful presence in the United States. The
provisional unlawful presence waiver (``provisional waiver'') process
allows certain individuals who are present in the United States to
request from U.S. Citizenship and Immigration Services (USCIS) a
provisional waiver of these grounds of inadmissibility before departing
the United States for consular processing of their immigrant visas--
rather than applying for a waiver abroad after their immigrant visa
interviews using the Form I-601, Waiver of Grounds of Inadmissibility
(``Form I-601 waiver process''). The provisional waiver process is
designed to encourage unlawfully present individuals to leave the
United States, attend their immigrant visa interviews, and return to
the United States legally to reunite with their U.S. citizen or lawful
permanent resident (LPR) family members. Having an approved provisional
waiver helps facilitate immigrant visa issuance at DOS, streamlines
both the waiver and the immigrant visa processes, and reduces the time
that applicants are separated from their U.S. citizen or LPR family
members, thus promoting family unity. The rule is intended to encourage
eligible individuals to complete the immigrant visa process abroad,
promote family unity, and improve administrative efficiency.

DATES: This final rule is effective August 29, 2016.

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)
272-8377 (this is not a toll free number).

SUPPLEMENTARY INFORMATION: This final rule adopts the proposed rule
that the Department of Homeland Security (DHS) published on July 22,
2015, with changes made in response to comments received. This final
rule provides that eligibility for the provisional waiver will no
longer be limited to the subset of statutorily qualified individuals
who seek to immigrate as immediate relatives of U.S. citizens \1\ and
who can show that denial of admission will result in extreme hardship
to a U.S. citizen spouse or parent. Rather, this final rule makes
eligibility for the provisional waiver available to all individuals who
are statutorily eligible for a waiver of the unlawful presence grounds
of inadmissibility. Under this final rule, such an individual must go
abroad to obtain an immigrant visa, establish that denial of admission
will result in extreme hardship to a U.S. citizen or LPR spouse or
parent, establish that his or her case warrants a favorable exercise of
discretion, and meet all other regulatory requirements. Eligibility for
the provisional waiver will also extend to the spouses and children who
accompany or follow to join principal immigrants. The rule is intended
to encourage eligible individuals to complete the immigrant visa
process abroad, promote family unity, and improve administrative
efficiency. DHS believes that this rule will reduce overall immigrant
visa processing times for eligible immigrant visa applicants; encourage
individuals who are unlawfully present in the United States to seek
lawful status after departing the country; save resources and time for
the Department of State (DOS), DHS, and the individual; and reduce the
hardship that U.S. citizen and LPR family members of individuals
seeking the provisional waiver may experience as a result of the
immigrant visa process.
---------------------------------------------------------------------------

\1\ Immediate relatives of U.S. citizens are the spouses,
children and parents of U.S. citizens, provided that, in the case of
parents, the U.S. citizen son or daughter petitioner is over the age
of 21. In certain situations, the former spouse of a deceased U.S.
citizen is also considered an immediate relative.
---------------------------------------------------------------------------

Table of Contents:

I. Executive Summary
A. Purpose of the Regulatory Action
B. Costs and Benefits
II. Background
A. Legal Authority
B. Proposed Rule
C. Final Rule
III. Public Comments on the Proposed Rule
A. Summary of Public Comments
B. Legal Authority
C. Eligibility for the Provisional Waiver
D. Adjudication
E. Filing Requirements and Fees
F. Comments on the Application for Provisional Unlawful Presence
Waiver, Form I-601A, and the Form Instructions
G. Miscellaneous Comments
H. Comments on the Executive Orders 12866/13563 Analysis
IV. Regulatory Amendments
A. Amending 8 CFR 212.7(e)(1) To Clarify Which Agency Has
Jurisdiction To Adjudicate Provisional Waivers
B. Removing the Provisional Waiver Reason To Believe Standard as
a Basis for Ineligibility for Provisional Waivers
C. Removing the DOS Visa Interview Scheduling Cut-Off Dates in 8
CFR 212.7(e)(4)(iv) and 212.7(e)(5)(ii)(G)
D. Allowing Individuals With Final Orders of Removal,
Deportation, or Exclusion To Apply for Provisional Waivers
E. Clarifying When an Individual Is Subject to Reinstatement and
Ineligible for Provisional Waivers
F. Miscellaneous Technical Amendments
V. Statutory and Regulatory Requirements
A. Unfunded Mandates Reform Act of 1995
B. Small Business Regulatory Enforcement Fairness Act of 1996
C. Executive Orders 12866 (Regulatory Planning and Review) and
13563 (Improving Regulation and Regulatory Review)
D. Executive Order 13132
E. Executive Order 12988 Civil Justice Reform
F. Paperwork Reduction Act
G. Regulatory Flexibility Act

I. Executive Summary

A. Purpose of the Regulatory Action

This final rule, consistent with the INA, expands the provisional
unlawful presence waiver process (hereinafter ``provisional waiver
process''), which specifies how an individual may be eligible to
receive a provisional waiver of his or her inadmissibility for accrual
of unlawful presence prior to departing the United States for
processing of an immigrant visa application at a U.S. embassy or
consulate abroad. See 8 CFR 212.7(e).
Generally, individuals who are in the United States and seeking
lawful permanent resident (LPR) status must either obtain an immigrant
visa abroad through what is known as ``consular processing'' with the
Department of State (DOS) or apply to adjust their immigration status
to that of an LPR in the United States, if eligible. Individuals
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 individuals must leave the
United States for immigrant visa processing at a U.S. Embassy or
consulate abroad. But because these individuals are present in the
United States without having been inspected and admitted or paroled,
their departures may trigger a ground of

[[Page 50245]]

inadmissibility based on the accrual of unlawful presence in the United
States under INA section 212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i).
Under subclause (I) of this provision, an individual who has been
unlawfully present in the United States for more than 180 days but less
than one year, and who then departs voluntarily from the United States
before the commencement of removal proceedings, is inadmissible 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). Under subclause (II), an individual who has
been unlawfully present in the United States for one year or more and
then departs the United States (before, during, or after removal
proceedings), is inadmissible for 10 years from the date of the
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 individual departs from the
United States. See, e.g., Matter of Rodarte-Roman, 23 I. & N. Dec. 905
(BIA 2006).
The Secretary of Homeland Security (Secretary) may waive this
ground of inadmissibility for an individual who can demonstrate that
the refusal of his or her admission to the United States would result
in extreme hardship to his or her 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). Prior to
the creation of the provisional waiver process in 2013, any individual
who was seeking an immigrant visa and became inadmissible under the 3-
or 10-year unlawful presence bar upon departure from the United States,
could apply for a waiver of such inadmissibility from DHS by filing an
Application for Waiver of Grounds of Inadmissibility, Form I-601, with
USCIS, but only after having attended the consular immigrant visa
interview abroad. Those who applied for waivers under this ``Form I-601
waiver process'' \2\ were effectively required to remain abroad for at
least several months while USCIS adjudicated their waiver
applications.\3\
---------------------------------------------------------------------------

\2\ The ``Form I-601 waiver process,'' for purposes of this
rule, refers to the process that an applicant uses when seeking an
immigrant visa at a U.S. Embassy or consulate abroad and applying
for a waiver of inadmissibility by filing an Application for Waiver
of Grounds of Inadmissibility, Form I-601.
\3\ The average adjudication time of Form I-601 applications is
currently over five months. Source: U.S. Citizenship and Immigration
Services. USCIS Processing Time Information for the Nebraska Service
Center-Form I-601, available at https://egov.uscis.gov/cris/processTimesDisplayInit.do (last updated Feb. 11, 2016).
---------------------------------------------------------------------------

For some individuals, the Form I-601 waiver process led to lengthy
separations of immigrant visa applicants from their family members,
causing some U.S. citizens and LPRs to experience the significant
emotional and financial hardships that Congress aimed to avoid when it
authorized the waiver. See INA section 212(a)(9)(B)(v), 8 U.S.C.
1182(a)(9)(B)(v) (providing for an inadmissibility waiver, ``if it is
established to the satisfaction of the Attorney General that the
refusal of admission to such immigrant alien would result in extreme
hardship to the citizen or lawfully resident spouse or parent of such
alien''). For this reason, many relatives of U.S. citizens and LPRs who
are eligible to obtain LPR status may be reluctant to travel abroad to
seek immigrant visas and obtain such status. The Form I-601 waiver
process also created processing inefficiencies for both USCIS and DOS
through repeated interagency communication and through multiple
consular appointments or interviews.
On January 3, 2013, DHS promulgated a final rule, Provisional
Unlawful Presence Waivers of Inadmissibility for Certain Immediate
Relatives, in the Federal Register. See 78 FR 536 (Jan. 3, 2013)
(``2013 Rule''). To improve administrative efficiency and reduce the
amount of time that a U.S. citizen spouse or parent is separated from
his or her relative while the relative completes the immigrant visa
process, the 2013 Rule provided a process by which certain statutorily
eligible individuals--specifically, certain parents, spouses and
children of U.S. citizens--may apply for provisional waivers of the 3-
and 10-year unlawful presence bars (``provisional waivers'') before
leaving the United States for their immigrant visa interviews. The
final rule also limited eligibility for provisional waivers to those
immediate relatives of U.S. citizens who could show extreme hardship to
a U.S. citizen spouse or parent. One reason DHS limited eligibility for
the provisional waiver was to allow DHS and DOS time to assess the
effectiveness of the process and the operational impact it may have on
existing agency processes and resources. See 2013 Rule, 78 FR at 541.
Administration of the provisional waiver process has shown that
granting a provisional waiver prior to the departure of an immediate
relative of a U.S. citizen can reduce the time that such family members
are separated. The grant of a provisional waiver also reduces hardships
to U.S. citizen families and lowers the processing costs for DHS and
DOS. In light of these benefits, and because other individuals are
statutorily eligible for waivers of the 3- and 10-year unlawful
presence bars, DHS decided to remove restrictions that prevented
certain individuals from seeking such waivers through the provisional
waiver process. On July 22, 2015, DHS proposed to expand the class of
individuals who may be eligible for provisional waivers beyond certain
immediate relatives of U.S. citizens to all statutorily eligible
individuals regardless of their immigrant visa classification. DHS also
proposed to expand the class of individuals who could obtain
provisional waivers, consistent with the statutory waiver authority, by
permitting consideration of extreme hardship not only to U.S. citizen
spouses or parents, but also to LPR spouses or parents.
In this final rule, DHS adopts the changes discussed in the
proposed rule with several modifications in response to comments
submitted on the proposed rule. The new modifications include:
(1) Clarifying that all individuals seeking provisional waivers,
including those in removal proceedings before the Executive Office for
Immigration Review (EOIR), must file applications for provisional
waivers with USCIS.
(2) Allowing individuals to apply for provisional waivers even if
USCIS has a reason to believe that they may be subject to other grounds
of inadmissibility.
(3) Eliminating the proposed temporal limitations that would have
restricted eligibility for provisional waivers based on DOS visa
interview scheduling.
(4) Allowing individuals with final orders of removal, exclusion,
or deportation to be eligible for provisional waivers provided that
they have already applied for, and USCIS has approved, an Application
for Permission to Reapply for Admission into the United States After
Deportation or Removal, Form I-212.
(5) Clarifying that DHS must have actually reinstated a removal,
deportation, or exclusion order in order for an individual who has
returned to the United States unlawfully after removal to be ineligible
for a provisional waiver on that basis.
In addition, DHS made several technical and non-substantive
changes.

B. Costs and Benefits

This rule's expansion of the provisional waiver process will create
costs and benefits for newly eligible provisional waiver (Form I-601A)
applicants, their U.S. citizen or LPR family members, and the Federal
Government (namely, USCIS and DOS), as outlined in the Summary Table.
This rule will impose fee, time, and travel

[[Page 50246]]

costs on an estimated 100,000 newly eligible individuals who choose to
complete and submit provisional waiver applications and biometrics
(fingerprints, photograph, and signature) to USCIS for consideration
during the 10-year period of analysis (see Table 8). These costs will
equal an estimated $52.4 million at a 7 percent discount rate and $64.2
million at a 3 percent discount rate in present value across the period
of analysis. On an annualized basis, the costs will measure
approximately $7.5 million at both 7 percent and 3 percent discount
rates (see Summary Table).
Newly eligible provisional waiver applicants and their U.S. citizen
or LPR family members will benefit from this rule. Those applying for
provisional waivers will receive advance notice of USCIS' decision to
provisionally waive their 3- or 10-year unlawful presence bar before
they leave the United States for their immigrant visa interview abroad.
This offers applicants and their family members the certainty of
knowing that the applicants have been provisionally approved for
waivers of the 3- and 10-year unlawful presence bars before departing
from the United States. Individuals with approved provisional waivers
may experience shortened periods of separation from their family
members living in the United States while they pursue issuance of
immigrant visas abroad, thus reducing any related financial and
emotional strains on the families. USCIS and DOS will continue to
benefit from the operational efficiencies gained from the provisional
waiver's role in streamlining immigrant visa application processing,
but on a larger scale.
In the absence of this rule, DHS assumes that the majority of
individuals who are newly eligible for provisional waivers under this
rule will likely continue to pursue an immigrant visa through consular
processing abroad and apply for waivers of grounds of inadmissibility
resulting from the accrual of unlawful presence through the Form I-601
waiver process. Those who apply for unlawful presence waivers through
the Form I-601 waiver process will incur fee, time, and travel costs
similar to individuals applying for waivers through the provisional
waiver process. However, without this rule, individuals who must seek a
waiver of inadmissibility abroad through the Form I-601 waiver process
after the immigrant visa interview may face longer separation times
from their families in the United States and will experience less
certainty regarding the approval of a waiver of the 3- or 10-year
unlawful presence bar before departing from the United States. Absent a
waiver, individuals who are subject to these bars would be unable to
obtain LPR status for either 3 or 10 years.

Summary Table--Total Costs and Benefits of 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................ $64,168,205....... $52,429,216....... $7,522,471........ $7,464,741
----------------------------------------------------------------------------------------------------------------
Total Benefits:

Qualitative................. Decreased amount of time that U.S.
citizens or LPRs are separated from
their family members with approved
provisional waivers, leading to
reduced financial and emotional
hardship for these families.
Decreased amount of time that U.S.
citizens or LPRs are separated from
their family members with approved
provisional waivers, leading to
reduced financial and emotional
hardship for these families.
----------------------------------------------------------------------------------------------------------------
Provisional waiver applicants will
receive advance notice of USCIS'
decision to provisionally waive their
3- or 10-year unlawful presence bar
before they leave the United States
for their immigrant visa interview
abroad. This offers applicants and
their family members the certainty of
knowing that the applicants have been
provisionally approved for a waiver
before departing from the United
States.
Provisional waiver applicants will
receive advance notice of USCIS'
decision to provisionally waive their
3- or 10-year unlawful presence bar
before they leave the United States
for their immigrant visa interview
abroad. This offers applicants and
their family members the certainty of
knowing that the applicants have been
provisionally approved for a waiver
before departing from the United
States.
----------------------------------------------------------------------------------------------------------------
Federal Government will achieve
increased efficiencies by
streamlining immigrant visa
processing for applicants seeking
inadmissibility waivers of unlawful
presence.
Federal Government will achieve
increased efficiencies by
streamlining immigrant visa
processing for applicants seeking
inadmissibility waivers of unlawful
presence.
----------------------------------------------------------------------------------------------------------------
Note: The cost estimates in this table are contingent upon Form I-601A filing projections as well as the
discount rates applied for monetized values.

II. Background

A. Legal Authority

Under section 212(a)(9)(B) of the INA, 8 U.S.C. 1182(a)(9)(B), an
individual who has accrued more than 180 days of unlawful presence in
the United States and then leaves the United States generally is
inadmissible for a specified period after the individual's departure.
The inadmissibility period lasts for 3 years if the individual accrued
more than 180 days but less than 1 year of unlawful presence, and for
10 years if the individual accrued 1 year or more of unlawful presence.
Under INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v), the
Secretary of Homeland Security (``Secretary'') has discretion to waive
this ground of inadmissibility if the Secretary finds that denying the
applicant's admission to the United States would result in extreme
hardship to the applicant's U.S. citizen or LPR spouse or parent. INA
section 103, 8 U.S.C. 1103, gives the Secretary the authority to
prescribe regulations for the administration and enforcement of the
immigration and naturalization laws of the United States.

B. Proposed Rule

On July 22, 2015, DHS published a notice of proposed rulemaking to
expand eligibility for provisional waivers of certain grounds of
inadmissibility based on the accrual of unlawful presence to all
individuals who are statutorily eligible for a waiver

[[Page 50247]]

of such grounds, are seeking a provisional waiver in connection with an
immigrant visa application, and meet other conditions. See proposed
rule, Expansion of Provisional Waivers of Inadmissibility, 80 FR 43338
(July 22, 2015) (2015 Proposed Rule).
In response to the proposed rule, DHS received 606 public comments
from individuals, advocacy groups, attorneys, organizations, schools,
and local governments. Some of the comments were submitted through mass
mailing or email campaigns or petitions expressing support for or
opposition to the provisional waiver process in general. Opinions on
the proposed rule varied, but the majority of commenters (472) were
supportive of the proposed expansion. Many of these commenters made
additional suggestions to improve the provisional waiver process
overall. These suggestions are discussed below.
DHS received 82 comments opposed to the proposed rule. In many of
these instances, these commenters argued that the Executive Branch
lacks the legal authority to implement the proposed changes. Commenters
indicated that expanding the program amounted to an abuse of authority.
One commenter asserted that the rule exceeded the Secretary's authority
under the INA and that provisionally approving a waiver before an
individual departs from the United States based on a family unity
rationale was arbitrary and capricious. Some commenters also believed
that the provisional waiver process would grant legal status to
individuals unlawfully present in the United States. Others asked that
USCIS prioritize the lawful immigrant community over those unlawfully
present in the United States.
DHS received 52 comments that either did not clearly express an
opinion in support of or in opposition to the proposed rule or that did
not address any aspect of the proposed rule. For example, a few
commenters provided input on immigrants in general, immigration policy,
the Federal government, and other government programs that are not
within the scope of this rulemaking. Because these comments address
nothing in the proposed rule, DHS provides no specific response to
them.
Unless mentioned in this supplementary information, commenters did
not make any specific suggestions for changes to the provisional waiver
process based on what DHS outlined in the proposed rule. In preparing
this final rule, DHS counted and considered each public comment and
other relevant materials that appear in the Federal Docket Management
System (FDMS). All comments received may be reviewed in FDMS at http://www.regulations.gov, under docket number USCIS-2012-0003.

C. Final Rule

This final rule adopts most of the regulatory amendments set forth
in the proposed rule except for a few provisions, as explained in this
preamble. The rationale for the proposed rule and the reasoning
provided in its preamble remain valid with respect to the regulatory
amendments adopted. Additionally, DHS has made several changes to the
regulatory provisions based on the comments received. This final rule
also adopts the technical regulatory amendments suggested in the
proposed rule without change. This final rule does not address comments
seeking changes in U.S. laws, regulations, or agency policies that are
unrelated to the provisional waiver process or the clarifying technical
amendments to 8 CFR 212.7. This final rule does not change the
procedures or policies of other DHS components or Federal agencies, or
resolve issues outside the scope of this rulemaking.

III. Public Comments on the Proposed Rule

A. Summary of Public Comments

The 60-day public comment period for the proposed rule ended on
September 21, 2015. The majority of comments came from supporters who
agreed that the proposed rule would promote family unity and reduce the
length of time family members would be separated. Many considered
family unity as one of the core principles of U.S. immigration law and
stated that this rulemaking benefitted the United States overall, not
just families. Several commenters made suggestions for simplifying the
provisional waiver process overall.
Some commenters identified themselves as U.S. citizens or LPR
family members (including children) who were worried about their
relatives' immigration situations and about being separated from their
family members for prolonged time periods. Numerous commenters who
urged DHS to implement the proposed expansion shared personal stories
and described hardships they have experienced or may experience upon
being separated from family members. Many reasoned that keeping
families together assists the U.S. economy and otherwise strengthens
the country, because many individuals who are undocumented work hard,
pay taxes, and are concerned about the well-being of their children.
Many asserted that the 3- and 10-year unlawful presence bars and other
bars to admissibility are inhumane and cruel and that these laws need
to change. Backlogs in the immigration system, such as visa backlogs,
were raised generally by commenters as additional reasons for
supporting this rule. Some commenters also believed that expanding
eligibility for the provisional waiver process would streamline the
waiver adjudication process for applicants inadmissible based on the
accrual of unlawful presence in the United States, thereby making the
immigrant visa process faster and more predictable. Finally, a
commenter expressed the belief that expanding the process would reduce
burdens on DOS.
Several commenters who disagreed with the proposed expansion argued
that the Executive Branch lacks the legal authority to implement the
proposed changes without congressional approval. Others stated that the
proposed expansion is the Administration's way of circumventing
existing laws, creating amnesty, and favoring those who are unlawfully
present over lawful immigrants. Some considered the measure to be
unconstitutional, arbitrary, and capricious. A number of commenters
asserted that the expansion would reward law breakers, further illegal
immigration, and lead to system abuse and fraud, as well as additional
social problems.
For several commenters, unifying families was not an acceptable
justification for the proposed rule. Some asserted that it is not the
U.S. Government's place to accommodate people who are in the country
illegally. Those commenters expressed that family separation is a
natural consequence of an individual's choice to break the law. Others
asserted that expanding the process would undermine the Nation's
sovereignty, economy, security, and proper law enforcement efforts.
Overall, these commenters believed that the expansion would erode the
integrity of the immigration system.
Many of the commenters identified themselves as lawful immigrants
or relatives of lawful immigrants. Some of these individuals voiced
disappointment over the proposed expansion and indicated that the
Federal Government's money and resources would be better invested in
assisting U.S. citizens and lawful immigrants. These commenters
emphasized that they have complied with the law, paid taxes, and worked
hard toward maintaining lawful status,

[[Page 50248]]

and they asked DHS to first assist individuals who are lawfully present
in the United States to obtain immigrant status by fixing the
backlogged immigration system before fixing processes that benefit
those who are unlawfully present in the United States.
One commenter suggested that local governments, rather than the
Federal Government, should control the immigration process. This
commenter indicated that local governments are in a better position to
consider the costs of immigration measures to local communities. Other
commenters considered the rule unnecessary and current regulations
sufficient to address the immigrant community's needs. One commenter
asked that DHS restrict and not expand the provisional waiver process
in order to better control the U.S. border.
DHS has reviewed all of the public comments received in response to
the proposed rule and addresses those comments focused on aspects in
this final rule. DHS's responses to these comments are grouped by
subject area, with a focus on the most common issues and suggestions
raised by the commenters. The response to each comment also explains
whether DHS made any changes to address the comment. DHS received no
comments on the following topics addressed in the proposed rule:
Inclusion of Diversity Visa selectees; inclusion of derivative spouses
and children; the rejection criteria; the validity of an approved
provisional waiver; and automatic revocation.

B. Legal Authority

A number of commenters questioned the Department's legal authority
to expand the provisional waiver process. Some commenters expressed the
view that the rule constituted an attempt to circumvent Congress, and
that it was as an effort in disregard of current immigration laws,
including case law. Some commenters also stated that the proposed rule
exceeded DHS authorities in implementing the Secretary's directive to
expand eligibility for provisional waivers. Others asserted that the
rule was arbitrary and capricious.
DHS disagrees that this rule's expansion of the provisional waiver
process exceeds the Secretary's legal authority. As a preliminary
matter, the Federal Government has plenary authority over immigration
and naturalization, and Congress may enact legislation establishing
immigration law and policy. See, e.g., Arizona v. United States, 132 S.
Ct. 2492, 2498 (2012) (``The Government of the United States has broad,
undoubted power over the subject of immigration and the status of
aliens. This authority rests, in part, on the National Government's
constitutional power to `establish [a] uniform Rule of Naturalization,'
and its inherent power as sovereign to control and conduct relations
with foreign nations.'' (citations omitted)); see also Fiallo v. Bell,
430 U.S. 787, 792 (1977). The Executive Branch, which includes DHS,
implements the laws passed by Congress, and Congress has specifically
charged the Secretary with the administration and enforcement of the
immigration and naturalization laws. See 6 U.S.C. 112, 202(3)-(5); INA
section 103, 8 U.S.C. 1103(a). The Secretary is also authorized to
promulgate rules and ``perform such other acts as he deems necessary
for carrying out his authority.'' INA section 103(a)(3), 8 U.S.C.
1103(a)(3). The Secretary thus has broad discretion to determine the
most effective way to administer the immigration laws. See, e.g., Jean
v. Nelson, 727 F.2d 957, 965 (11th Cir. 1984) (``The principal
responsibility for immigration matters in the Executive branch resides
with the [Secretary], who is the beneficiary of broad grants of
discretion under the statute.''), aff'd, 472 U.S. 846 (1985); Narenji
v. Civiletti, 617 F.2d 745, 747 (D.C. Cir. 1979) (observing that the
INA ``need not specifically authorize each and every action taken by
the Attorney General [(now Secretary of Homeland Security)], so long as
his action is reasonably related to the duties imposed upon him'').
More specifically, Congress provided for a waiver of the 3- and 10-
year unlawful presence bars in INA section 212(a)(9)(B)(v), 8 U.S.C.
1182(a)(9)(B)(v), for individuals who can demonstrate extreme hardship
to certain qualifying relatives. That section does not restrict the
manner in which eligible individuals can seek such waivers. In 2013,
DHS created the provisional waiver process to allow certain immigrant
visa applicants who are immediate relatives of U.S. citizens to
provisionally apply for waivers before they leave the United States for
their consular interviews. The creation of this process was merely a
procedural change that addressed the manner in which eligible
individuals can apply for the statutorily provided waiver of
inadmissibility. See Provisional Unlawful Presence Waivers of
Inadmissibility for Certain Immediate Relatives, 78 FR 536, 541 (Jan.
3, 2013) (``2013 Rule''). This rule expands on that process by simply
expanding the pool of individuals eligible to apply for provisional
waivers to statutorily eligible individuals in all immigrant visa
classifications, subject to certain conditions. See new 8 CFR 212.7(e).
Like the 2013 Rule, this Final Rule, therefore, does not create new
waiver authority; it implements an existing authority conferred by
Congress.\4\
---------------------------------------------------------------------------

\4\ Neither conditioning a waiver on an individual's departure
from the United States nor allowing advance application for a waiver
is novel. For example, DHS regulations at 8 CFR 212.2(j) have long
allowed an individual who is subject to a removal order to seek
consent to reapply for admission under INA section
212(a)(9)(A)(iii), 8 U.S.C. 1182(a)(9)(A)(iii), while the individual
is in the United States and before the individual departs the United
States. A grant of consent to reapply for admission, like the
provisional waiver, is conditioned on the individual's eventual
departure from the United States. See 8 CFR 212.2(j). DHS and former
Immigration and Naturalization Service (INS) regulations have
permitted advance applications for consent to reapply for admission
under INA section 212(a)(9)(A)(iii), 8 U.S.C. 1182(a)(9)(A)(iii)
since at least 1969. See, e.g., 34 FR 9061 (1969); 36 FR 11635
(1971). The INS also permitted advance waiver applications under
former INA section 212(c), 8 U.S.C. 1182(c) (repealed 1996). See 8
CFR 212.3(b); 52 FR 11620 (1987).
---------------------------------------------------------------------------

Finally, DHS disagrees with commenters who stated that the proposed
rule is arbitrary and capricious. The commenters appear to assert that
DHS exceeds its statutory authority by violating the substantive
requirements of the Administrative Procedure Act (APA). See 5 U.S.C.
706(2)(A). A rulemaking may be considered arbitrary and capricious
under the APA when an agency's action is unreasonable, unsound, or not
explained, or when it fails to demonstrate that the agency has
considered the circumstances surrounding its action. An agency must
examine the relevant data and articulate a satisfactory explanation for
its action, including a rational connection between the facts found and
the choice made. See Motor Vehicle Mfrs. Ass'n of the United States,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43 (1983). DHS
has made clear throughout the proposed rule and this preamble all of
the factors that were considered in putting forth the proposal and has
articulated how the expansion of the provisional waiver process is tied
to the purposes of the immigration laws and efficient operation of the
immigration system. See generally 2015 Proposed Rule, 80 FR 43339. DHS
believes that the assertions of these commenters are unfounded.

C. Eligibility for the Provisional Waiver

1. Categories of Eligible Individuals
Many commenters believed that expanding eligibility for the
provisional waiver as proposed to all statutorily

[[Page 50249]]

eligible individuals--including beneficiaries in family-sponsored and
employment-based preference categories, as well as Diversity Visa
selectees--would offer benefits to the U.S. Government and facilitate
legal immigration and family unity. These commenters indicated that the
expansion would reduce the fear of many immigrants, who otherwise may
worry that they would be unable to reunite with their families after
leaving the United States to have their immigrant visas processed
abroad.
Accordingly, some commenters suggested that all individuals with
approved immigrant visa petitions should be able to participate in the
provisional waiver process, regardless of whether they are located
inside or outside the United States. Other commenters asked that USCIS
allow individuals with approved immigrant visa petitions to apply for
provisional waivers regardless of their priority dates, especially if
they had been present in the United States for many years.
Many commenters asked that DHS allow the following categories of
individuals to apply for provisional waivers: (1) Married or unmarried
individuals over the age of 21 with U.S. citizen parents; (2)
individuals over the age of 21, whether single or married; (3) spouses
of U.S. citizens without a criminal record and with good standing in
their communities; (4) parents of U.S. citizens with approved
petitions; (5) sons-in-law and daughters-in-law; and 6) self-
petitioning widows and widowers of U.S. citizens. Some commenters urged
DHS to prioritize relatives of U.S. citizens over relatives of LPRs.
Some commenters asked that DHS focus not only on families, but also on
sponsored employees, corporations, and self-sponsored business owners.
Others requested that DHS include the following categories of
individuals in the provisional waiver process: (1) Those with
nonimmigrant investor-type visas; (2) well-educated professionals; (3)
those with approved immigrant visa petitions but without any family in
the United States; (4) spouses of nonimmigrant visa holders who are
beneficiaries of approved employment-based immigrant visa petitions
(Forms I-140); and (5) those with pending immigrant visa petitions.
Many commenters requested that USCIS adjust an individual's status to
that of an LPR upon approval of the waiver; others mistakenly believed
that USCIS already does so.
The Secretary is authorized to waive the 3- and 10-year unlawful
presence bars for individuals seeking admission to the United States as
immigrants if they can show that the refusal of admission would result
in extreme hardship to a qualifying U.S. citizen or LPR spouse or
parent, and provided that the applicant warrants a favorable exercise
of discretion. See INA section 212(a)(9)(B)(v), 8 U.S.C.
1182(a)(9)(B)(v). With this final rule, DHS is allowing all individuals
who are statutorily eligible for an immigrant visa and who meet the
legal requirements for a waiver under INA section 212(a)(9)(B)(v), 8
U.S.C. 1182(a)(9)(B)(v), to seek a provisional waiver in accordance
with new 8 CFR 212.7(e). Consistent with the current provisional waiver
process, provisional waivers are available only to those who are
present in the United States, who must apply for immigrant visas at
U.S. embassies or consulates abroad, and who at the time of the
immigrant visa interview may be inadmissible based on the accrual of
unlawful presence under INA section 212(a)(9)(B)(i), 8 U.S.C.
1182(a)(9)(B)(i).
DHS can only expand the pool of individuals eligible for this
process to those who fall within one of the current statutory immigrant
visa classifications and who meet the requirements for the unlawful
presence waiver described in INA section 212(a)(9)(B)(v), 8 U.S.C.
1182(a)(9)(B)(v). DHS cannot expand eligibility to those who are not
statutorily eligible for such waivers under current law. Similarly, DHS
cannot change who is statutorily eligible to adjust status in the
United States. Intending immigrants who are present in the United
States but ineligible to adjust status must depart the United States
and obtain their immigrant visas through consular processing abroad;
approval of a provisional waiver does not change this requirement. See
INA sections 104, 202(a)(1)(B), 211, 221, 222 and 245; 8 U.S.C. 1104,
1152(a)(1)(B), 1181, 1201, 1202, and 1255. See generally 8 CFR part
245; 22 CFR part 42.
As indicated above, many commenters asked that DHS expand the
provisional waiver process to include additional categories of
individuals, including sons or daughters who have approved immigrant
visa petitions and are over the age of 21 or married. To clarify, in
the proposed rule, DHS sought to include all beneficiaries of approved
immigrant visa petitions who are statutorily eligible for a waiver of
the 3- and 10-year unlawful presence bars, regardless of age, marital
status, or immigration status. Individuals with approved immigrant visa
petitions, including sons and daughters (married or unmarried) of U.S.
citizens, as well as those who have been selected to participate in the
Diversity Visa program, may participate in the provisional waiver
process provided they meet the requirements stated in 8 CFR 212.7(e).
Consistent with its statutory authority under INA section
212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v), DHS will no longer limit
the provisional waiver process to certain immediate relatives of U.S.
citizens.\5\
---------------------------------------------------------------------------

\5\ Additionally, as explained throughout this preamble, DHS is
changing other eligibility and ineligibility criteria in response to
comments received.
---------------------------------------------------------------------------

2. Backlogged Immigrant Visa Categories and Eligibility for Interim
Benefits
A large number of commenters suggested that individuals with
approved family-sponsored and employment-based immigrant visa petitions
should be permitted to obtain provisional waivers if immigrant visas
are unavailable to them as a result of visa backlogs.\6\ Many
commenters expressed frustration with the current legal immigration
system and lengthy wait times for visas, which separate families and
hinder the professional development of many individuals and their
family members. Some commenters said it was unfair that DHS and USCIS
seek to implement rules that assist persons who came to the United
States unlawfully. These commenters indicated that those who came
legally to the United States but who cannot obtain immigrant status as
a result of visa backlogs should also receive assistance. These
commenters opined that those who immigrate lawfully, such as
employment-based immigrants, bring economic advantages to the United
States.
---------------------------------------------------------------------------

\6\ In particular, some commenters requested that DHS include
married and unmarried sons and daughters of U.S. citizens for whom
an immigrant visa is unavailable due to immigrant visa backlogs.
---------------------------------------------------------------------------

A few commenters suggested that individuals with or without
approved provisional waivers should be given interim benefits while
awaiting visa availability. For example, one commenter requested that
USCIS grant deferred action and work authorization to undocumented
individuals who are U.S.-educated professionals in nursing, medical, or
engineering fields, are the beneficiaries of family-sponsored
petitions, and have displayed good conduct. Another commenter requested
that an individual with an approved provisional waiver be issued a
temporary Social Security number and renewable work authorization for a
minimum of 3 years. A commenter asked USCIS to provide work
authorization and advance parole documents to enable travel outside of,

[[Page 50250]]

and facilitate return to, the United States to lawfully present
individuals affected by visa backlogs if they otherwise complied with
the immigration laws. Another commenter believed that USCIS should
grant parole in place to an individual with an approved immigrant visa
petition and provisional waiver, if the petitioner's or beneficiary's
disability makes travel abroad hazardous due to a condition covered by
the Americans with Disabilities Act (ADA).\7\ After receiving parole in
place, the commenter reasoned, the beneficiary could adjust his or her
status in the United States and would not have to risk the petitioner's
or the beneficiary's life by traveling. Finally, many commenters
expressed the desire that individuals be able to adjust status in the
United States if they have an approved petition or provisional waiver.
---------------------------------------------------------------------------

\7\ See Americans with Disabilities Act of 1990 (Pub. L. 101-
336), as amended.
---------------------------------------------------------------------------

DHS acknowledges the concerns many intending immigrants face due to
backlogs in available immigrant visa numbers. As noted, DHS is
broadening the availability of the provisional waiver process to
include all statutorily eligible individuals--including all
beneficiaries of family-sponsored and employment-based immigrant visa
petitions, as well as Diversity Visa selectees--who have a qualifying
relative under the statute for purposes of the extreme hardship
determination. Beneficiaries in family-sponsored and employment-based
preference categories, as well as Diversity Visa immigrants, are
subject to annual numerical limits that have been set by Congress. See
INA sections 201, 202 and 203; 8 U.S.C. 1151, 1152 and 1153. Neither
DOS nor DHS can change the number of visas that Congress allocates for
particular immigrant visa categories, nor can they alter the statutory
requirements for adjustment of status in the United States. Addressing
those recommendations would require legislative changes.
DHS does not consider it appropriate to make an application for a
provisional waiver, or the approval of such an application, a basis for
granting interim benefits, including an advance parole document or
employment authorization. In particular, because an approved immigrant
visa petition and a waiver of inadmissibility do not independently
confer any immigration status or otherwise afford lawful presence in
the United States, neither may typically serve as the basis for interim
benefits. Furthermore, issuance of interim benefits to individuals who
are granted provisional waivers may encourage them to postpone their
timely departures from the United States to pursue their immigrant visa
applications. The purpose of the provisional waiver process is not to
prolong an applicant's unlawful presence in the United States. Rather,
the purpose is to facilitate the applicant's departure to attend an
immigrant visa interview abroad so that they may complete their
application process for an immigrant visa. Moreover, providing an
advance parole document is unnecessary because the premise of the
provisional waiver process is that the applicant, if eligible, will
depart the United States and return with an immigrant visa.
The provisional waiver process is designed to encourage unlawfully
present individuals to leave the United States, attend their immigrant
visa interviews, and return to the United States legally to reunite
with their U.S. citizen or LPR family members. Having an approved
provisional waiver helps facilitate immigrant visa issuance at DOS,
streamlines both the waiver and the immigrant visa processes, and
reduces the time that applicants are separated from their U.S. citizen
or LPR family members, thus promoting family unity.
3. Individuals Outside the United States
A few commenters asked DHS to extend eligibility for provisional
waivers to individuals outside the United States. Commenters argued
that such individuals should be eligible for provisional waivers
because they are often relatives of U.S. citizens with approved
immigrant visa petitions and have immigrant visa applications pending
with DOS. These commenters also suggested that those who need waivers
of the 3- and 10-year unlawful presence bars but are now outside the
United States should not be disadvantaged by their decision to
ultimately comply with the immigration laws by departing the United
States. The commenters believed that DHS should apply the same rules
and processes to all visa applicants.
DHS understands the difficulties that U.S. citizens and LPRs face
when their family members are outside the United States and are
attempting to navigate the immigrant visa process. DHS notes, however,
that individuals who are outside the United States and are eligible for
waivers of the 3- and 10-year unlawful presence bars may apply for such
waivers through the preexisting Form I-601 waiver process. Considering
the existence of the Form I-601 waiver process, DHS continues to
believe that expanding the provisional waiver process to those
individuals abroad would duplicate steps already incorporated in the
DOS immigrant visa process and would not be an efficient use of agency
resources. DHS thus will not adopt the suggestion.\8\
---------------------------------------------------------------------------

\8\ For additional discussion relating to this suggestion,
please refer to the 2013 Rule, 78 FR at 543.
---------------------------------------------------------------------------

However, to alleviate some of the delays in waiver processing for
those filing from abroad, USCIS has implemented the centralization of
Form I-601 application filings, which no longer requires that
applicants schedule ``waiver filing'' appointments with a U.S. embassy
or consulate. Instead, Form I-601 applicants now file the waiver
application directly with USCIS at a centralized location in the United
States, thereby significantly reducing the time they are required to be
outside the United States. By centralizing the processing of these
waiver applications at locations in the United States, USCIS is able to
better ensure that applications are processed in the most efficient
manner possible.
4. Extreme Hardship
Several commenters requested that USCIS clarify the term ``extreme
hardship'' in guidance or regulations. Others suggested that the
proposed rule was legally flawed because DHS had not promulgated the
requirements for establishing extreme hardship. Commenters requested
that DHS clearly define the term and apply it fairly, including by
considering the financial, emotional, and other harmful effects that
result from separating families. Commenters believed that clarifying
the term would lead to greater consistency in adjudication. One
commenter asked that extreme hardship examples be included in guidance
and in the provisional waiver application form.
Many commenters also requested that USCIS ease the extreme hardship
standard and its documentary requirements, including, for example, by
presuming extreme hardship in certain cases involving vulnerable
families. Commenters often referenced the interim rule at 8 CFR
240.64(d) \9\ as a precedent that DHS could consider for purposes of
adopting one or more presumptions of extreme hardship. Commenters also
urged USCIS to extend the special accommodation for beneficiaries of
immigrant visa petitions described in INA section 204(l), 8 U.S.C.
1154(l), to self-petitioning widows and widowers of U.S. citizens when
such

[[Page 50251]]

citizens died before filing immigrant visa petitions on behalf of their
spouses. INA section 204(l), 8 U.S.C. 1154(l), allows for immigrant
visa petitions and related applications to be approved or reinstated
for certain beneficiaries despite the death of the petitioner or
principal beneficiary. Under the special accommodation, the death of
the petitioner or principal beneficiary is treated as the ``functional
equivalent'' of a finding of extreme hardship in cases where he or she
could have served as a ``qualifying relative'' for purposes of waiving
the 3- and 10-year unlawful presence bars.\10\
---------------------------------------------------------------------------

\9\ This regulation was promulgated under section 203 of the
Nicaraguan Adjustment and Central American Relief Act (NACARA),
Public Law 105-100 (Nov. 19, 1997).
\10\ See USCIS AFM Chapter 10.21(c)(5), https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/Chapter10-21.html. This guidance
does not refer to the accommodation as a ``presumption,'' even
though it has similar effect to a presumption. As with any finding
of extreme hardship, the accommodation permits, but does not
require, approval of the waiver, which remains a matter of USCIS
discretion.
---------------------------------------------------------------------------

Other commenters believed that if an applicant demonstrates some or
all of the factors listed in the Secretary's November 20, 2014
memorandum directing expansion of the provisional waiver program \11\--
such as those relating to the age of the affected U.S. citizen or LPR
spouse or parent, length of U.S. residence, and family ties in the
United States--USCIS should apply a rebuttable presumption and find
that the applicant has established extreme hardship. Having a
presumption, some believed, would ease the burden of proof for many
families. Some commenters also indicated that it was often very
difficult for families to produce documentation to demonstrate extreme
hardship, which the commenters viewed as an unnecessary barrier.
---------------------------------------------------------------------------

\11\ See Memorandum from Jeh Charles Johnson, Secretary of
Homeland Security to L[eacute]on Rodr[iacute]guez, Director, USCIS,
Expansion of the Provisional Waiver Program (Nov. 20, 2014),
available at https://www.dhs.gov/sites/default/files/publications/14_1120_memo_i601a_waiver.pdf.
---------------------------------------------------------------------------

A considerable number of commenters suggested alternative standards
of extreme hardship or asked that DHS include additional individuals as
qualifying relatives for purposes of the extreme hardship
determination. For example, commenters believed that USCIS should find
extreme hardship if: (1) The applicant has a U.S. citizen spouse or
parent; (2) a family is separated, or a child is separated from his or
her parents; (3) family members lose their jobs because they have to
travel to other countries; (4) the applicant's child would experience
extreme hardship; (5) the applicant's sibling would experience extreme
hardship; (6) the applicant would trigger the 3- or 10-year unlawful
presence bar when departing the United States; (7) the applicant has
waited for a prolonged period for an immigrant visa to become
available; (8) the applicant is the beneficiary of an employment-based
immigrant visa petition (because beneficiaries of such petitions may
not have U.S. citizen or LPR qualifying relatives); \12\ or (9) the
applicant has family in the United States but not a qualifying
relative. Many commenters also requested that DHS give consideration to
extreme hardship that would be suffered by U.S. citizen or LPR sons and
daughters who are over the age of 21 or who are married.\13\ One
commenter requested that special consideration be given to those in
``special situation[s]'' with respect to extreme hardship
determinations, even if they do not have qualifying relatives. That
commenter appeared to suggest that USCIS should create two
classifications for assessing waiver eligibility, one for individuals
with LPR family members and one for individuals without LPR family
members. A few commenters asked DHS to eliminate the extreme hardship
standard altogether. Many such commenters felt that taxpaying citizens
who are ``good people'' should be able to keep their families together
and that it is unfair to separate families simply because certain
individuals cannot establish extreme hardship.
---------------------------------------------------------------------------

\12\ Some commenters asked USCIS to accept a showing of extreme
hardship to an employer, but such consideration is not authorized by
the statutory waiver authority at INA section 212(a)(9)(B)(v), 8
U.S.C. 1182(a)(9)(B)(v).
\13\ In many instances, it was unclear whether commenters were
requesting additional eligibility criteria for provisional waivers
in general, or whether they were requesting that DHS consider
additional classes of individuals to be qualifying relatives for
purposes of the extreme hardship determination.
---------------------------------------------------------------------------

One commenter suggested that USCIS should contact experts and
declarants claiming personal knowledge of a qualifying relative's
hardship claim by mail in order to verify that such claims are
legitimate. This commenter also suggested that DHS should only consider
hardship flowing from a qualifying relative's decision to remain in the
United States and not the hardship such a relative may confront if he
or she chooses to depart with the inadmissible applicant. That
commenter viewed as ``hypothetical'' the hardship that may result if
the qualifying relative chooses to depart, but as ``verifi[able]'' the
hardship resulting from the choice of a qualifying relative to stay
behind in the United States. According to the commenter, considering
hypothetical hardship in another country is unnecessary and too
difficult to document.
Other commenters proposed that DHS provide in its regulations a
list of consequences or other factors typically associated with removal
that adjudicators would consider when making extreme hardship
recommendations. These commenters suggested that such a list of factors
be drawn from historical data and precedent decisions. The commenters
further suggested that such a list would be analogous to what is
provided in the regulation for NACARA \14\ applicants at 8 CFR
1240.58(b). The commenters considered such an approach invaluable to
achieving consistent adjudication of all waiver applications under the
INA, not just provisional waiver applications. The commenters also
believed that such an approach would reduce the incentive for
individuals to make conclusory and unsupported allegations when
applying for provisional waivers. According to these commenters, the
lack of such a regulation was a ``capricious political benefit'' to
those unlawfully present in the United States.
---------------------------------------------------------------------------

\14\ See note 8, supra.
---------------------------------------------------------------------------

Finally, another commenter requested that USCIS establish specific
questions related to hardship so that USCIS officers can quickly
determine whether a threshold level of extreme hardship has been
demonstrated.\15\ As an alternative to an extreme hardship showing,
another commenter suggested that USCIS permit applicants to explain why
they violated U.S. immigration laws. Another commenter indicated that
it was important to train officers in this area.
---------------------------------------------------------------------------

\15\ The commenter cited the Application for Suspension of
Deportation or Special Rule Cancellation of Removal, Form I-881,
which contains a list of questions relating to factors considered
when evaluating extreme hardship as drawn from the NACARA special
rule regulations at 8 CFR 1240.58(b).
---------------------------------------------------------------------------

DHS cannot adopt suggestions to revise the statutory requirements
for waivers of the unlawful presence grounds of inadmissibility under
INA section 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B). The authorizing
statute requires the applicant to show extreme hardship to a U.S.
citizen or LPR spouse or parent, and DHS does not have the authority to
change the statutory requirement. DHS also cannot approve a provisional
waiver application if the applicant has not demonstrated extreme
hardship to a qualifying relative as required by the INA.
DHS also declines in this rulemaking to define extreme hardship for
purposes of the provisional waiver (or more generally), or to create a
rebuttable

[[Page 50252]]

presumption related to such determinations. The INA does not define
extreme hardship. The Board of Immigration Appeals (BIA) has stated
that extreme hardship is not a definable term of fixed and inflexible
meaning, and that establishing extreme hardship is dependent upon the
facts and circumstances of each case.\16\ See Matter of Cervantes-
Gonzalez, 22 I&N Dec. 560, 565 (BIA 1999) (describing factors to be
considered in extreme hardship analysis), aff'd, Cervantes-Gonzales v.
INS, 244 F.3d 1001 (9th Cir. 2001). Accordingly, DHS will continue to
make extreme hardship determinations for purposes of provisional
waivers on a case-by-case basis, consistent with agency guidance. On
October 7, 2015, USCIS posted proposed guidance on extreme hardship
determinations for public comment on its Web site at www.uscis.gov.\17\
USCIS also continually trains its officers on all aspects of the
provisional waiver adjudication, including the extreme hardship
determination.
---------------------------------------------------------------------------

\16\ The BIA and immigration judges, both under the jurisdiction
of the Department of Justice, Executive Office for Immigration
Review (EOIR), also make extreme hardship determinations for
purposes of adjudicating applications for extreme hardship waivers
under INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v), and
for other immigration benefits and relief from exclusion,
deportation, or removal.
\17\ The proposed guidance on extreme hardship determinations
can be viewed at https://www.uscis.gov/sites/default/files/USCIS/Outreach/Policy%20Review/DRAFT_Extreme_Hardship_Policy_Manual_Guidance_for_public_comment.pdf.

---------------------------------------------------------------------------

Finally, DHS cannot extend the special accommodation for
beneficiaries of immigrant visa petitions described in INA section
204(l), 8 U.S.C. 1154(l), to self-petitioning widows and widowers of
U.S. citizens when such citizens died prior to filing immigrant visa
petitions on behalf of their spouses. Under this section, USCIS may
approve, or reinstate the approval of, an immigrant visa petition
despite the death of the petitioner or principal beneficiary, if at
least one beneficiary was residing in the United States when the
relative died and continues to reside in the United States. If USCIS
approves or reinstates the approval of the immigrant visa petition,
USCIS also has discretion to act favorably on ``any related
applications.'' INA section 204(l), 8 U.S.C. 1154(l). When Congress
enacted INA section 204(l), 8 U.S.C. 1154(l), USCIS interpreted ``any
related applications'' to include waiver applications that a
beneficiary would have been able to file had the qualifying relative
not died. But that section applies, by its express terms, only to an
individual who ``immediately prior to the death of his or her
qualifying relative was . . . the beneficiary of a pending or approved
petition.'' If the deceased qualifying relative had not filed an
immigrant visa petition at the time of death, there is no ``pending or
approved'' petition to which INA section 204(l), 8 U.S.C. 1154(l), can
apply. Nor can there be said to be any ``related applications.''
5. Applicants With Other Grounds of Inadmissibility
A large number of commenters supporting this rule stated that U.S.
immigration laws are overly harsh, and that these laws harm families of
U.S. citizens and LPRs. In general, many commenters asked DHS to waive
certain grounds of inadmissibility for which the INA does not currently
provide relief for immigrants.\18\ Other commenters asked DHS to
consider expanding the provisional waiver process to cover additional
grounds of inadmissibility for which waivers are statutorily available.
These commenters specifically referenced the waiver for fraud and
willful misrepresentation under INA section 212(i), 8 U.S.C. 1182(i),
or alien smuggling under INA section 212(d)(11), 8 U.S.C. 1182(d)(11).
Some commenters recommended that when an applicant is granted a
provisional waiver based on a finding of extreme hardship, the
Department should conclude that the applicant has established extreme
hardship for other types of waiver applications that apply the same
standard. One commenter suggested that the standard for the waiver to
overcome inadmissibility for alien smuggling is lower than the extreme
hardship standard \19\ and that USCIS should thus consider the lower
standard as encompassed by the extreme hardship standard. The commenter
thus believed that the waiver to overcome the alien smuggling
inadmissibility ground could easily be incorporated into the
provisional waiver process. Overall, commenters suggested that DHS
allow individuals to apply for all available waivers of inadmissibility
through the provisional waiver process, which the commenters believed
would further streamline the waiver and immigrant visa processes.\20\
---------------------------------------------------------------------------

\18\ For example, some commenters asked for a waiver for falsely
claiming U.S. citizenship under INA section 212(a)(6)(C)(ii), 8
U.S.C. 1182(a)(6)(C)(ii). Another commenter asked that all parents
who illegally reentered after having been previously deported should
be pardoned, because, according to the commenter, most parents enter
to reunite with their children and family. Many commenters felt that
children are being punished for the actions of their parents. Other
commenters asked that the inadmissibility ground under INA section
212(a)(9)(C), 8 U.S.C. 1182(a)(9)(C), be changed and the penalty
reduced to a lesser inadmissibility period for which a waiver is
available. All of these requests are outside of the scope of this
rulemaking, which solely concerns the provisional waiver of the
grounds of inadmissibility described in INA section 212(a)(9)(B)(i),
8 U.S.C. 1182(a)(9)(B)(i), as authorized by INA section
212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v).
\19\ DHS may waive the ground of inadmissibility described in
INA section 212(a)(6)(E)(i), 8 U.S.C. 1182(a)(6)(E)(i), for
humanitarian purposes, to assure family unity, or when it is
otherwise in the public interest, provided the individual meets all
other requirements. See INA section 212(d)(11), 8 U.S.C.
1182(d)(11).
\20\ Of the commenters who asked DHS to expand the provisional
waiver process to include waivers of other grounds of
inadmissibility, many requested that DHS specifically include the
Application for Permission to Reapply for Admission into the United
States After Deportation or Removal, Form I-212.
---------------------------------------------------------------------------

Several commenters requested that the provisional waiver process be
available to individuals who are barred for unlawful reentry after
previous immigration violations under INA section 212(a)(9)(C), 8
U.S.C. 1182(a)(9)(C). Others suggested making the process available to
individuals who are inadmissible under that section if they are spouses
of U.S. citizens or LPRs. A few commenters asked that certain
categories of individuals receive special treatment.\21\ For example, a
commenter requested that DHS create a special waiver for Deferred
Action for Childhood Arrivals (DACA) recipients. Others asked that DHS
add special provisions to benefit the relatives of active members or
veterans of the U.S. Armed Forces.
---------------------------------------------------------------------------

\21\ It was often unclear if the commenters sought
implementation of new waivers or an expansion of the provisional
waiver to include these grounds of inadmissibility.
---------------------------------------------------------------------------

DHS considered these comments but did not adopt the suggested
changes. DHS cannot waive grounds of inadmissibility for those who are
not authorized to receive waivers under the immigration laws.
Implementation of these suggestions thus would have exceeded DHS's
statutory authority. Other suggestions did not support a principal goal
of the provisional waiver process, which is to streamline immigrant
visa issuance for individuals who are eligible for an immigrant visa
and otherwise admissible to the United States \22\ but whose family
members would experience extreme hardship due to application of certain
unlawful presence grounds of inadmissibility. As explained in the 2013
Rule, DOS consular officers are charged with

[[Page 50253]]

determining whether individuals are eligible for issuance of immigrant
visas, including whether they are affected by one or more grounds of
inadmissibility. Expanding the provisional waiver process to other
grounds of inadmissibility would introduce additional complexity and
inefficiencies into the immigrant visa process, create potential
backlogs, and likely delay and adversely affect the processing of
immigrant visas by DOS. Furthermore, USCIS generally assesses waiver
applications for inadmissibility due to fraud, misrepresentation, or
criminal history through an in-person interview at a USCIS field
office. Because DOS already conducts a thorough in-person interview as
part of the immigrant visa process, DHS believes that this type of
review would be unnecessarily duplicative of DOS's efforts.
---------------------------------------------------------------------------

\22\ Upon departure from the United States to attend a consular
interview, an individual no longer would be inadmissible as a result
of being present in the United States without admission or parole
under INA section 212(a)(6)(A)(i), 8 U.S.C. 1182(a)(6)(A)(i), or for
lacking proper immigrant entry documents under INA section
212(a)(7)(A), 8 U.S.C. 1182(a)(7)(A).
---------------------------------------------------------------------------

Because the text of the statute forecloses the issue, DHS also
rejects the suggestion to expand the provisional waiver process to
include individuals who are inadmissible based on a return (or
attempted return) without admission after previous immigration
violations under INA section 212(a)(9)(C)(i), 8 U.S.C.
1182(a)(9)(C)(i). The relevant forms of relief for individuals who are
inadmissible under that section are found at INA section
212(a)(9)(C)(ii) and (iii), 8 U.S.C. 1182(a)(9)(C)(ii) and (iii). See
Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006). Under the statute,
waivers under INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v),
cannot be used to relieve an applicant from inadmissibility under INA
section 212(a)(9)(C)(i), 8 U.S.C. 1182(a)(9)(C)(i).
6. Reason-to-Believe Standard
Under current regulations, USCIS must deny a provisional waiver
application if USCIS has ``reason to believe'' that the applicant may
be subject to a ground of inadmissibility other than unlawful presence
at the time of the immigrant visa interview abroad (``reason-to-believe
standard''). 8 CFR 212.7(e)(4)(i).\23\ Commenters asked DHS to clarify
the reason-to-believe standard and to train officers \24\ so that they
properly apply the standard. Many argued that USCIS often applies the
standard too rigidly by denying applications on mere suspicion, rather
than actually adjudicating the relevant inadmissibility concerns
consistent with applicable law relating to these grounds.
---------------------------------------------------------------------------

\23\ That regulation reads: ``Ineligible aliens. Notwithstanding
paragraph (e)(3) of this section, an alien is ineligible for a
provisional unlawful presence waiver under paragraph (e) of this
section if: (i) USCIS has reason to believe that the alien may be
subject to grounds of inadmissibility other than unlawful presence
under section 212(a)(9)(B)(i)(I) or (II) of the Act at the time of
the immigrant visa interview with the Department of State.'' 8 CFR
212.7(e)(4)(i).
\24\ USCIS has continually trained its officers on all aspects
of the provisional waiver adjudication, including how to determine
whether individuals may be subject to additional inadmissibility
grounds at the time of the immigrant visa interview. However, since
USCIS is removing the reason-to-believe standard as a basis for
eligibility, we will no longer be training officers on application
of this specific standard.
---------------------------------------------------------------------------

Commenters also urged DHS to expand the scope of the January 24,
2014 field guidance memorandum on the reason-to-believe standard.\25\
Commenters specifically asked DHS to direct USCIS officers to consider
the totality of the evidence when assessing whether other grounds of
inadmissibility apply to an applicant, and to issue Requests for
Evidence (RFEs) related to such grounds prior to denying a provisional
waiver application for mere suspicion that such grounds apply.
Commenters criticized the lack of issuance of RFEs or Notices of Intent
to Deny (NOIDs), as well as USCIS' use of standard denial template
language when denying a provisional waiver application under the
reason-to-believe standard. Commenters stated that the use of these
denial templates implies that USCIS does not consider the evidence that
applicants submit to show that they are in fact not inadmissible on
other grounds. In addition, the commenters stated that the templates
did not provide sufficient information to indicate why USCIS determined
it had reason to believe that the applicant would be inadmissible at
the time of the immigrant visa interview, thus preventing applicants
from addressing the agency's concerns upon reapplication. Commenters
requested that USCIS instruct its officers to clearly articulate the
fact specific circumstances that led them to deny an application for
``reason to believe'' that the applicant is inadmissible on other
grounds.\26\ A couple of commenters suggested that DHS make exceptions
to the reason-to-believe standard for certain circumstances or classes
of individuals.
---------------------------------------------------------------------------

\25\ See USCIS Memorandum, Guidance Pertaining to Applicants for
Provisional Unlawful Presence Waivers (Jan. 24, 2014), available at
http://www.uscis.gov/sites/default/files/files/nativedocuments/2014-0124_Reason_To_Believe_Field_Guidance_Pertaining_to_Applicants_for_Provisional_Unlawful_Presence_Waivers-final.pdf.
\26\ These commenters suggested adding specific regulatory text
in 8 CFR 212.7(e)(4) and 8 CFR 212.7(e)(9) that would require
officers to consider the totality of the circumstances and to
recount particular facts of the case when denying waiver
applications under the reason-to-believe standard.
---------------------------------------------------------------------------

Considering the confusion that has resulted from application of the
reason-to-believe standard, DHS is eliminating the standard from the
provisional waiver process in this final rule. Under the 2013 Rule, an
approved provisional waiver would take effect if DOS subsequently
determined that the applicant was ineligible for an immigrant visa only
on account of the 3- or 10-year unlawful presence bar under INA section
212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i). Accordingly, DHS had
originally incorporated the reason-to-believe standard in the 2013 Rule
to preclude individuals from obtaining provisional waivers if they may
have triggered other grounds of inadmissibility. DHS reasoned, in part,
that because the goal of the provisional waiver process was to
streamline immigrant visa processing, it would be of little benefit to
applicants or to DHS to grant provisional waivers to applicants who
would eventually be denied immigrant visas based on other grounds of
inadmissibility.
Since the implementation of the provisional waiver program,
however, stakeholders have raised concerns over the application of the
reason-to-believe standard. Among other things, DHS understands that
the standard causes confusion for applicants, as evidenced by the
comments submitted to this rule. Despite the Department's repeated
attempts to explain the reason-to-believe standard, for example,
commenters continue to erroneously believe that when USCIS denies a
provisional waiver application under the reason-to-believe standard,
the agency has actually made an inadmissibility determination with
respect to the relevant other ground(s) of inadmissibility.
Alternatively, as explained in the 2013 Rule, it would be
counterproductive for USCIS to make other inadmissibility
determinations during the adjudication of provisional waiver
applications, given DOS's role in the immigrant visa process. It is
DOS, and not USCIS, that generally determines admissibility under INA
section 212(a), 8 U.S.C. 1182(a), as part of the immigrant visa
process, which includes an in-depth, in-person interview conducted by
DOS consular officers. Moreover, it is U.S. Customs and Border
Protection (CBP) that ultimately determines admissibility at the time
that individuals seek admission at a port of entry. See INA sections
204(e), 221(h); 8 U.S.C. 1154(e), 1201(h). It is thus generally not
USCIS's role to determine whether an individual applying for an
immigrant visa, or for admission as an immigrant at a U.S. port of
entry, is admissible to the United States. Any assessment by USCIS with
respect to other grounds of inadmissibility would be, at best,

[[Page 50254]]

advisory in nature and would likely cause even greater confusion for
applicants.
These considerations have prompted DHS to revisit the current
approach. In this final rule, DHS has decided to eliminate the reason-
to-believe standard as a basis for denying provisional waiver
applications. Accordingly, when adjudicating such applications, USCIS
will only consider whether extreme hardship has been established and
whether the applicant warrants a favorable exercise of discretion.
However, although this final rule eliminates the reason-to-believe
standard, the final rule retains the provision that provides for the
automatic revocation of an approved provisional waiver application if
the DOS consular officer ultimately determines that the applicant is
ineligible for the immigrant visa based on other grounds of
inadmissibility. See 8 CFR 212.7(e)(14)(i). DHS thus cautions and
reminds individuals that even if USCIS approves a provisional waiver
application, DOS may still find the applicant inadmissible on other
grounds at the time of the immigrant visa interview. If DOS finds the
applicant ineligible for the immigrant visa or inadmissible on grounds
other than unlawful presence, the approval of the provisional waiver
application is automatically revoked. In such cases, the individual may
again apply for a waiver of the unlawful presence ground of
inadmissibility, in combination with any other waivable grounds of
inadmissibility, by using the Form I-601 waiver process. As in all
discretionary matters, DHS also has the authority to deny provisional
waiver applications as a matter of discretion even if the applicant
satisfies the eligibility criteria. See 8 CFR 212.7(e)(2)(i).
Additionally, USCIS may reopen and reconsider its decision to approve
or deny a provisional waiver before or after the waiver becomes
effective if it is determined that the decision was made in error. See
8 CFR 212.7(e)(13) and 8 CFR 212.7(a)(4)(v).
As has always been the case, DHS will continue to uphold the
integrity and security of the provisional waiver process by conducting
full background and security checks to assess whether an individual may
be a threat to national security or public safety. If the background
check or the individual's immigration file reveals derogatory
information, including a criminal record, USCIS will analyze the
significance of the information and may deny the provisional waiver
application as a matter of discretion.\27\
---------------------------------------------------------------------------

\27\ Under current USCIS policy, officers adjudicating
provisional waiver applications may issue a Request for Evidence
(RFE) to address deficiencies in the extreme hardship showing or to
resolve issues that may impact their exercise of discretion. USCIS
will retain this practice. To maintain the streamlined nature of the
program, USCIS retains the 30-day response time to any RFE issued in
connection with provisional waiver applications. See USCIS
Memorandum, Standard Timeframe for Applicants to Respond to Requests
for Evidence Issued in Relation to a Request for a Provisional
Unlawful Presence Waiver, Form I-601A (Mar. 1, 2013), available at
http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2013/I-601A_30-Day_RFE_PM.pdf.
---------------------------------------------------------------------------

Finally, the extreme hardship and discretionary eligibility
assessments made during a provisional waiver adjudication could be
impacted by additional grounds of inadmissibility and other information
that was not known and therefore not considered during the
adjudication. Accordingly, USCIS is not bound by these determinations
when adjudicating subsequent applications filed by the same applicant,
such as an application filed to waive grounds of inadmissibility,
including a waiver of the unlawful presence grounds of inadmissibility.
In other words, because separate inadmissibility grounds and material
information not before USCIS at the time of adjudication may alter the
totality of the circumstances present in an individual's case, a prior
determination that an applicant's U.S. citizen or LPR spouse would
suffer extreme hardship if the applicant were refused admission (and
that the applicant merits a provisional waiver as a matter of
discretion) does not dictate that USCIS must make the same
determination in the future, although the factors and circumstances
underlying the prior decision may be taken into account when reviewing
the cases under the totality of the circumstances.
7. Individuals With Scheduled Immigrant Visa Interviews
The proposed rule would have made certain immediate relatives of
U.S. citizens ineligible for provisional waivers if DOS had initially
acted before January 3, 2013 to schedule their immigrant visa
interviews. DHS had also proposed to make other applicants ineligible
if DOS initially acted before the effective date of this final rule to
schedule their immigrant visa interviews. See 80 FR 43338, 43343 (July
22, 2015). These date restrictions were intended to make the
provisional waiver process more operationally manageable and to avoid
processing delays in the immigrant visa process. Commenters suggested
that DHS either eliminate these restrictions or apply the January 3,
2013 restriction to all potential applicants.\28\ Some commenters
argued that DHS should eliminate these restrictions altogether for
humanitarian reasons. Other commenters pointed out that the cutoff
dates will cause preference-based immigrants difficulties with their
priority dates.
---------------------------------------------------------------------------

\28\ One commenter also asked that DHS allow individuals to
reopen their ``visa cases'' and to file applications for provisional
waivers. The commenter explained that many individuals let their DOS
National Visa Center (NVC) cases lapse because they cannot leave to
seek their visas and because ameliorative immigration legislation
had failed to pass. The commenter asked that the DOS NVC reopen
cases for those who have approved petitions so that they may apply
for provisional waivers. DHS will not adopt this suggestion. DOS--
and not DHS--will continue to determine whether to reopen immigrant
visa application cases. Any visa applicant seeking to reopen such a
case should consult with DOS. An individual may file a provisional
waiver if he or she meets the provisional waiver requirements, as
outlined in 8 CFR 212.7(e).
---------------------------------------------------------------------------

In response to comments, and after consulting with DOS, DHS is
eliminating the restrictions based on the date that DOS acted to
schedule the immigrant visa interview. USCIS will adjust its processing
of petitions and applications so that neither DOS nor USCIS will be
adversely affected by the elimination of this restriction. Please note,
however, that elimination of these date restrictions does not alter
other laws and regulations relating to the availability of immigrant
visas. Applicants will still be unable to obtain immigrant visas until
an immigrant visa number is available based on the applicant's priority
date. Applicants will need to act promptly, once DOS notifies them that
they can file their immigrant visa application. If applicants do not
apply within one year of this notice, DOS has authority to terminate
their registration for an immigrant visa. See INA section 203(g), 8
U.S.C. 1153(g); see also 22 CFR 42.8(a). That action will also result
in automatic revocation of the approval of the related immigrant visa
petition. 8 CFR 205.1(a)(1).
In such a situation, applicants will have two options for
continuing to pursue a provisional waiver. One option is for an
applicant to ask DOS to reinstate the registration pursuant to 22 CFR
42.83(d). If DOS reinstates the registration, approval of the immigrant
visa petition is also reinstated. Once such an applicant has paid the
immigrant visa processing fee for the related immigrant visa
application, the applicant can apply for a provisional waiver. A second
option is for the

[[Page 50255]]

relevant immigrant visa petitioner to file a new immigrant visa
petition with USCIS. If USCIS approves the new immigrant visa petition,
the beneficiary could then apply for the provisional waiver after
paying the immigrant visa processing fee based on the new petition if
otherwise eligible.
8. Individuals in Removal Proceedings
Commenters requested that DHS eliminate restrictions that prevent
individuals in removal proceedings from seeking provisional waivers.
Under the current regulations, those in removal proceedings may apply
for and be granted provisional waivers only if their removal
proceedings have been and remain administratively closed. See 8 CFR
212.7(e)(4)(v). Rather than excluding individuals whose removal
proceedings are not administratively closed from obtaining provisional
waivers, commenters asserted that DHS should find a way to allow them
to apply for such waivers. Commenters suggested that once an individual
in removal proceedings has a provisional waiver, he or she should be
able to move to either dismiss or terminate proceedings or seek
cancellation of the Notice to Appear (NTA) \29\ so that he or she may
depart to seek consular processing of an immigrant visa application.
According to commenters, such a process would also ensure that an
individual who is issued an NTA while his or her provisional waiver
application is pending does not automatically become ineligible for the
waiver.
---------------------------------------------------------------------------

\29\ Notices to Appear (NTAs) are the charging documents that
DHS issues to individuals to initiate removal proceedings.
---------------------------------------------------------------------------

Another commenter noted that immigration courts are severely
backlogged and that individuals in removal proceedings often have to
wait months or years before their cases can be scheduled or heard. This
commenter asserted that requiring the case to be administratively
closed before an individual may apply for the provisional waiver places
an undue burden on the courts and also creates significant delays.
Commenters generally believed that it would be more efficient if
individuals were able to pursue provisional waivers and request
termination or dismissal of proceedings upon approval of the waivers.
They requested that the regulations and the provisional waiver
application (Form I-601A) clarify that removal proceedings may be
resolved by termination, dismissal, or a grant of voluntary departure
if the provisional waiver is approved. Commenters believed that such a
solution would simplify the provisional waiver process, improve
efficiency in the immigration court system, and further the spirit of
expanding the process to all individuals who are statutorily eligible
for waivers of the unlawful presence ground of inadmissibility at INA
section 212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i).
Due to agency efficiency and resource concerns, DHS declines to
adopt the above recommendations. On November 20, 2014, the Secretary
directed the Department's immigration components--USCIS, ICE, and CBP--
to exercise prosecutorial discretion, when appropriate, as early as
possible in proceedings to ensure that DHS's limited resources are
devoted to the greatest degree possible to the pursuit of enforcement
priorities.\30\ Prosecutorial discretion applies not only to the
decision to issue, serve, file, or cancel an NTA, but also to other
broad ranges of discretionary measures.\31\ To promote docket
efficiency and to ensure that finite enforcement resources are used
effectively, ICE carefully reviews cases pending before the Department
of Justice's Executive Office for Immigration Review (EOIR) to ensure
that all cases align with the agency's enforcement and removal
policies. As such, once an NTA is issued, ICE attorneys are directed to
review the case, at the earliest opportunity, for the potential
exercise of prosecutorial discretion.\32\ The Department of Justice
(DOJ) likewise instructs its immigration judges to use available
docketing tools to ensure fair and timely resolution of cases, and to
ask ICE attorneys at master calendar hearings whether ICE is seeking
dismissal or administrative closure of a case.\33\ In general, those
who are low priorities for removal and are otherwise eligible for LPR
status may be able to apply for provisional waivers. Among other
things, ICE may agree to administratively close immigration proceedings
for individuals who are eligible to pursue a provisional waiver and are
not currently considered a DHS enforcement priority. ICE also works to
facilitate, as appropriate, the timely termination or dismissal of
administratively closed removal proceedings once USCIS approves a
provisional waiver.
---------------------------------------------------------------------------

\30\ See Memorandum from Secretary Jeh Charles Johnson, DHS,
Policies for Apprehension, Detention, and Removal of Undocumented
Immigrants (Nov. 20, 2014), available at https://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf.
\31\ See id.
\32\ See Memorandum from Riah Ramlogan, Acting Principal Legal
Advisor, U.S. Immigration and Customs Enforcement (ICE), Guidance
Regarding Cases Pending Before EOIR Impacted by Secretary Johnson's
Memorandum Entitled Policies for the Apprehension, Detention and
Removal Of Undocumented Immigrants (Apr. 6, 2015), available at
https://www.ice.gov/sites/default/files/documents/FOIA/2015/guidance_eoir_johnson_memo.pdf.
\33\ See Memorandum from Brian M O'Leary, Chief Immigration
Judge, EOIR, Operating Policies and Procedures Memorandum 15-01:
Hearing Procedures for Cases Covered by New DHS Priorities and
Initiatives (Apr. 6, 2015), available at https://www.justice.gov/eoir/pages/attachments/2015/04/07/15-01.pdf.
---------------------------------------------------------------------------

DHS believes the aforementioned steps being undertaken by ICE and
EOIR to determine whether cases should be administratively closed
effectively balances the commenters' provisional waiver eligibility
concerns and agency resources in considering the exercise of
prosecutorial discretion. Consequently, this rule has not changed the
provisional waiver process and will not permit individuals in active
removal proceedings to apply for or receive provisional waivers, unless
their cases are administratively closed. The Department believes that
current processes provide ample opportunity for eligible applicants to
seek a provisional waiver, while improving the allocation of government
resources and ensuring national security, public safety, and border
security.
9. Individuals Subject to Final Orders of Removal, Deportation, or
Exclusion
Commenters asked DHS to provide eligibility for provisional waivers
to individuals who are subject to final orders of removal, deportation,
or exclusion. Commenters asserted that many of these individuals may
already request consent to reapply for admission, under 8 CFR 212.2(j),
by filing an Application for Permission to Reapply for Admission into
the United States After Deportation or Removal, Form I-212, before
departing the United States for immigrant visa processing. Upon
receiving such consent, the individual's order of removal, deportation,
or exclusion would no longer bar him or her from obtaining an immigrant
visa abroad. One commenter reasoned that providing eligibility to
spouses and children with removal orders would permit more families to
stay together.
Many commenters suggested that USCIS allow individuals to file
provisional waiver applications ``concurrently'' \34\ with Form I-212
applications for consent to reapply for admission. These commenters
believed that requiring separate or consecutive processing of the two
applications when a domestic process already exists for

[[Page 50256]]

both is unnecessary, inefficient, and a waste of USCIS' resources. In
support of their argument, commenters also referenced 2009 USCIS
procedures for the adjudication of Form I-601 applications for
adjudication officers stationed abroad. Under these procedures, an
individual whose Form I-601 application is granted would also normally
obtain approval of a Form I-212 application, as both forms require that
the applicant show that he or she warrants a favorable exercise of
discretion.
---------------------------------------------------------------------------

\34\ Filing two or more immigration benefit requests together is
often referred to as ``concurrent'' filing.
---------------------------------------------------------------------------

As a preliminary matter, DHS notes that requiring the filing of
separate Forms I-601A and I-212 simply reflects the fact that they are
intended to address two separate grounds of inadmissibility, each with
different waiver eligibility requirements. In response to the comments,
however, DHS has amended the rule to allow individuals with final
orders of removal, deportation, or exclusion to apply for provisional
waivers if they have filed a Form I-212 application seeking consent to
reapply for admission and such an application has been conditionally
approved.
Anyone who departs the United States while a final order is
outstanding is considered to have executed that order. See INA section
101(g), 8 U.S.C. 1101(g); 8 CFR 241.7. The execution of such an order
renders the individual inadmissible to the United States for a period
of 5-20 years under INA section 212(a)(9)(A), 8 U.S.C. 1182(a)(9)(A).
Certain individuals, however, may seek consent to reapply for admission
to the United States before the period of inadmissibility has expired.
See INA section 212(a)(9)(A)(iii), 8 U.S.C. 1182(a)(9)(A)(iii). DHS
regulations provide a process for those in the United States to apply
for such consent by filing a Form I-212 application before departing
the United States. See 8 CFR 212.2(j). As with the provisional waiver
process, the pre-departure approval of a Form I-212 application is
conditioned on the applicant subsequently departing the United States.
Thus, if an individual who is inadmissible under INA section
212(a)(9)(A), 8 U.S.C. 1182(a)(9)(A), obtains a conditional approval of
his or her Form I-212 application while in the United States and
thereafter departs to attend the immigrant visa interview abroad, he or
she generally is no longer inadmissible under that section at the time
of the immigrant visa interview and can be issued an immigrant visa.
Given that an applicant still has to demonstrate visa eligibility,
including admissibility, at the time of the immigrant visa interview
and that DHS has decided to eliminate the reason-to-believe standard,
the Department believes the goals of the provisional waiver process are
supported by making it available to those with final orders only if
they already have conditionally approved a Form I-212 application. The
final rule thus extends eligibility for provisional waivers to such
individuals. See 8 CFR 212.7(e)(4)(iv). Such an individual, however,
must have the conditionally approved Form I-212 application at the time
of filing the provisional waiver application. See 8 CFR
212.7(e)(4)(iv). USCIS will deny a provisional waiver application if
the applicant's Form I-212 application has not yet been conditionally
approved at the time the individual files his or her provisional waiver
application. Additionally, if during the immigrant visa interview the
consular officer finds that the applicant is inadmissible on other
grounds that have not been waived, the approved provisional waiver will
be automatically revoked.\35\ See 8 CFR 212.7(e)(14)(i).
---------------------------------------------------------------------------

\35\ In such cases, however, the approved Form I-212 application
will generally remain valid and the individual may apply for any
available waivers, including waiver of the 3- and 10-year bars, by
filing a Form I-601 application after the immigrant visa interview.
---------------------------------------------------------------------------

Finally, DHS notes that approval of Forms I-601A and I-212 does not
waive inadmissibility under INA section 212(a)(9)(C), 8 U.S.C
1182(a)(9)(C), for having returned to the United States without
inspection and admission or parole after a prior removal or prior
unlawful presence. See INA section 212(a)(9)(C)(ii), 8 U.S.C
1182(a)(9)(C)(ii); Matter of Briones, 24 I&N Dec. 355 (BIA 2007);
Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006).\36\
---------------------------------------------------------------------------

\36\ Although DHS received no comments on the issue, DHS has
also amended the regulatory text to provide additional clarity with
respect to provisional waiver eligibility for certain individuals
who have previously been removed. Prior to the changes made by this
rule, 8 CFR 212.7(e)(4)(vii) provided that an alien who is ``subject
to reinstatement of a prior removal order under section 241(a)(5) of
the Act'' is not eligible for a provisional waiver. DHS recognizes
that this regulatory text was unclear with respect to whether it
applies to (1) an individual who is a ``candidate'' for
reinstatement of removal or (2) an individual whose prior removal
order has already been reinstated. To avoid confusion, DHS has
amended the regulatory text in 8 CFR 212.7(e)(4)(v) to clarify that
the prior removal order must actually be reinstated for an
individual to be ineligible to apply for a provisional waiver under
this provision. DHS notes, however, that USCIS is likely to deny as
a matter of discretion a provisional waiver application when records
indicate that the applicant is inadmissible under INA 212(a)(9)(C),
8 U.S.C 1182(a)(9)(C), for having unlawfully returned to the United
States after a prior removal or prior unlawful presence. Moreover,
even if such an individual obtains approval for a provisional
waiver, such approval will be automatically revoked if he or she is
ultimately determined to be inadmissible under that section.
---------------------------------------------------------------------------

10. Individuals Granted Voluntary Departure
Commenters requested that DHS address how voluntary departure under
INA section 240B, 8 U.S.C. 1229c, affects provisional waiver
eligibility. One commenter asked that USCIS provide eligibility for
provisional waivers to individuals who have been granted voluntary
departure but who failed to depart as required. Another commenter
requested that regulations and instructions should clarify that an
individual in compliance with an order of voluntary departure is
considered by USCIS: (a) Not to be currently in removal proceedings;
and (b) not subject to a final order of removal.
DHS has determined that individuals granted voluntary departure
will not be eligible for provisional waivers. First, if an individual
obtains voluntary departure while in removal proceedings, the
immigration judge is required by law to enter an alternate order of
removal. See 8 CFR 1240.26(d). DHS cannot execute the alternate order
of removal during the voluntary departure period because such an order
is not yet in effect. But if the individual does not depart as required
under the order of voluntary departure, the alternate order of removal
automatically becomes fully effective without any additional
proceeding. See 8 CFR 1240.26(d). Thus, an individual who fails to
leave as required under a grant of voluntary departure will have an
administratively final order of removal, and will thus be ineligible
for a provisional waiver. See INA section 240B(d)(1), 8 U.S.C.
1229c(d)(1); 8 CFR 212.7(e)(4)(iv). Under current law, removal
proceedings for such individuals are considered to have ended when the
grant of voluntary departure, with an alternate removal order, becomes
administratively final. See INA sections 101(a)(47), 240(c)(1)(A), 8
U.S.C. 1101(a)(47), 1229(a)(c)(1)(A); 8 CFR 241.1, 1003.39, 1241.1;
Matter of Shih, 20 I&N Dec. 697 (BIA 1993).
Second, a fundamental premise for a grant of voluntary departure is
that the individual who is granted voluntary departure intends to leave
the United States as required. See INA section 240B(b)(1)(D), 8 U.S.C.
1229c(b)(1)(D); Dada v. Mukasey, 554 U.S. 1, 18 (2008). Allowing an
individual whose voluntary departure period has not expired to apply
for a provisional waiver would suggest that the individual is excused
from complying with the order of voluntary departure. This result would
contradict the purpose of voluntary departure--allowing the subject to
leave promptly

[[Page 50257]]

without incurring the future inadmissibility that results from removal.
For these reasons, DHS did not modify the rule to allow those with
grants of voluntary departure to apply for provisional waivers.
11. Applications for Lawful Permanent Resident (LPR) Status
Under current regulations, an individual is ineligible for a
provisional waiver if he or she has an Application to Register
Permanent Residence or Adjust Status, Form I-485 (``application for
adjustment of status''), pending with USCIS, regardless of whether the
individual is in removal proceedings. See 8 CFR 212.7(e)(4)(viii). One
commenter suggested that USCIS should allow those seeking LPR status to
file applications for adjustment of status concurrently with
provisional waiver applications, and that USCIS should hold such
applications for adjustment of status in abeyance until final
resolution of the provisional waiver applications. According to the
commenter, this would provide applicants present in the United States
the opportunity to obtain work authorization and to appeal any denial
of their provisional waiver applications. The commenter suggested that
upon approval of a provisional waiver application, USCIS should route
the application for adjustment of status to DOS for consular processing
of the applicant's immigrant visa abroad.
DHS declines to adopt this suggestion. DHS believes that the
commenter misunderstands the purpose of filing applications for
adjustment of status. Those applications may be filed only by
individuals who are in the United States and meet the statutory
requirements for adjustment of status. If the applicant is eligible for
adjustment of status, approval of the application adjusts one's status
to that of an LPR in the United States, thus making it unnecessary to
go abroad and obtain an immigrant visa. For those who are in the United
States but are not eligible for adjustment of status, filing an
application for adjustment of status serves no legitimate purpose.
These individuals may not adjust status in the United States and must
instead depart the United States and seek an immigrant visa at a U.S.
consulate through consular processing. As these individuals are not
eligible for adjustment of status, DHS believes it is inappropriate to
invite them to submit applications seeking adjustment of status.
Moreover, DOS has its own application process for immigrant visas.
Thus, even if USCIS were to forward a denied application for adjustment
of status to DOS, that application would have no role in the
individual's application process with DOS. The individual would still
be required to submit the proper DOS immigrant visa application to seek
his or her immigrant visa.
12. Additional Eligibility Criteria
A few commenters suggested that DHS consider imposing restrictions
in the provisional waiver process, including by adding eligibility
criteria for provisional waivers, to better prioritize the classes of
individuals eligible to seek such waivers.\37\ Two commenters suggested
that the provisional waiver process should prioritize family members of
U.S. citizens over those of LPRs. One commenter suggested using level
of education as a factor for prioritizing applicants. This commenter
implied that applicants should be prioritized if they have advanced
degrees in science, technology, engineering, or mathematics fields.
Additional suggestions included: (1) Making provisional waivers easier
to obtain for couples who have children or have been married more than
two years; (2) limiting the number or percentage of waivers that are
made available to particular demographic groups within the United
States; (3) combining eligibility for provisional waivers with ``cross-
chargeability'' rules in the INA; \38\ (4) prioritizing waivers for
those with high school degrees or who paid their taxes; (5) making
waivers available only to those who submit three letters of
recommendation from community members; and (6) making waivers available
only to those who can demonstrate proficiency with the English language
or who enroll in English language classes.
---------------------------------------------------------------------------

\37\ Many of the commenters who suggested additional eligibility
criteria also believed that approved waivers should entitle
individuals to adjust to LPR status in the United States. Others
suggested that provisional waiver applicants should pay fines, and
some of these commenters believed that paying fines should allow
individuals to apply for adjustment of status as an alternative to
consular processing. Many of these commenters believed that such
changes would create efficiencies for both the applicant and the
government. As explained throughout this rule, DHS cannot change the
statutory requirements for adjustment of status in the United
States. Similarly, USCIS cannot impose fines as part of its filing
fees.
\38\ Cross-chargeability is a concept employed by the INA in the
context of applying the INA's numerical limits on immigrant visas,
particularly the ``per country'' limitations that restrict the
percentage of such visa numbers that may go to nationals of any one
country. See generally INA sections 201, 202, and 203; 8 U.S.C.
1151, 1152, and 1153. Generally, an immigrant visa number that is
allotted to an individual is ``charged'' to the country of his or
her nationality. However, when application of the ``per country''
limits may lead to family separation, the immigrant visa number
allotted to an individual may instead be charged to the country of
nationality of that individual's spouse, parent, or child. See INA
sections 202(b), 8 U.S.C. 1152(b); see also 22 CFR 42.12; Department
of State, 9 Foreign Affairs Manual (FAM) ch. 503.2-4A, available at
https://fam.state.gov/FAM/09FAM/09FAM050302.html (last visited Apr.
26, 2016).
---------------------------------------------------------------------------

DHS declines to impose limitations or eligibility requirements for
obtaining provisional waivers beyond those currently provided by
regulation or statute. See INA section 212(a)(9)(B)(v), 8 U.S.C
1182(a)(9)(B)(v); 8 CFR 212.7. In the 2013 Rule, DHS originally limited
eligibility to seek such waivers through the provisional waiver process
to ensure operational feasibility and reduce the risk of creating
processing delays with respect to other petitions or applications filed
with USCIS or DOS. Considering the agency's capacity and the
efficiencies gained through the provisional waiver process, DHS now
believes that the provisional waiver process should be made available
to all statutorily eligible individuals. DHS is confident that the
expansion will reduce family separation and benefit the U.S. Government
as a whole, and that all agencies involved possess the operational
capacity to handle the additional casework.
13. Bars for Certain Inadmissible Individuals
Two commenters suggested that those who have committed crimes
should be precluded from participating in the provisional waiver
process, and another commenter cautioned DHS against adopting a
standard that would allow provisional waiver eligibility to the ``wrong
people,'' in the commenter's view, such as those who hate American
values and principles.\39\
---------------------------------------------------------------------------

\39\ One of these commenters believed that, although accrual of
unlawful presence is not desirable, serious criminality and evidence
of violent behavior should be the deciding factors when determining
whether to separate families. Absent these factors, the commenter
reasoned, immediate family members of U.S. citizens and LPRs should
be allowed to remain with their loved ones in the United States
before consular processing.
---------------------------------------------------------------------------

As indicated above, DHS continues to uphold the integrity and
security of the provisional waiver process by conducting full
background and security checks to assess whether an applicant may be a
threat to national security or public safety. If the background check
or the applicant's immigration file reveals derogatory information,
including a criminal record, USCIS analyzes the significance of the
information and may deny the provisional waiver application as a matter
of discretion.

[[Page 50258]]

D. Adjudication

1. Requests for Evidence (RFEs) and Notices of Intent To Deny (NOIDs)
Several commenters criticized USCIS' practice with respect to
issuing Requests for Evidence (RFEs) or Notices of Intent to Deny
(NOIDs) in cases where the agency ultimately denies provisional waiver
applications. Commenters criticized USCIS for both (1) issuing denials
without first submitting RFEs that provide applicants the opportunity
to correct deficiencies, and (2) issuing RFEs that failed to clearly
articulate the deficiencies in submitted applications. With respect to
the latter, commenters indicated that RFEs tend to use boilerplate
language that makes it impossible for applicants to respond
effectively, especially with respect to assessments of extreme hardship
or application of the reason-to-believe standard. Noting that terms
such as ``reason to believe'' and ``extreme hardship'' are vague,
commenters requested that USCIS issue detailed and case-specific RFEs
or NOIDs (rather than templates) when the agency intends to deny
applications, thereby giving applicants an opportunity to cure any
deficiencies before such denials are issued.\40\ Commenters also raised
concerns with the number of days that USCIS provides applicants to
respond to often lengthy RFEs, noting that, in most instances, USCIS
provides only 30 days for such responses.
---------------------------------------------------------------------------

\40\ One commenter requested that USCIS ensure transparent
processing of applications. USCIS is committed to providing
processing information on its adjudication processes by including
information on the form and its instructions. USCIS also intends to
include a section in the USCIS Policy Manual on provisional waivers.
---------------------------------------------------------------------------

As provided in 8 CFR 212.7(e)(8), and notwithstanding 8 CFR
103.2(b)(16), USCIS may deny a provisional waiver without issuing an
RFE or NOID. USCIS, however, is committed to issuing RFEs to address
missing and critical information that relates to extreme hardship or
that may affect how USCIS exercises its discretion. USCIS officers also
have the discretion to issue RFEs whenever the officer believes that
additional evidence would aid in the adjudication of an application.
Due to the streamlined nature of the program, USCIS currently provides
applicants only 30 days to respond to an RFE in such cases.\41\
---------------------------------------------------------------------------

\41\ See USCIS Memorandum, Standard Timeframe for Applicants to
Response to Requests for Evidence Issued in Relation to a Request
for a Provisional Unlawful Presence Waiver, Form I-601A (Mar. 1,
2013), available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2013/I-601A_30-Day_RFE_PM.pdf.
---------------------------------------------------------------------------

USCIS will continue to issue RFEs in provisional waiver cases based
on the current USCIS RFE policy \42\ and to assess the effectiveness of
its RFE practice in this area. In response to comments, however, the
agency has instructed its officers to provide additional detail
regarding application deficiencies in RFEs relating to claims of
extreme hardship in order to better allow applicants to efficiently and
effectively cure such deficiencies. USCIS will retain the 30-day RFE
response period, because USCIS and DOS closely coordinate immigrant
visa and provisional waiver application processing. The 30-day RFE
response time streamlines USCIS processing, prevents lengthy delays at
DOS, and allows applicants to complete immigrant visa processing in a
timely manner.
---------------------------------------------------------------------------

\42\ See USCIS Memorandum, Requests for Evidence and Notices of
Intent to Deny (June 3, 2013), available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2013/June%202013/Requests%20for%20Evidence%20(Final).pdf.
---------------------------------------------------------------------------

As explained in the 2013 Rule, a NOID gives an applicant the
opportunity to review and rebut derogatory information of which he or
she may be unaware. Because provisional waiver adjudications do not
involve full assessments of inadmissibility, however, USCIS is not
issuing NOIDs describing all possible grounds of inadmissibility that
may apply at the time of the immigrant visa interview. Rather, USCIS
continues to decide an applicant's eligibility based on the submitted
provisional waiver application and related background and security
checks. If the applicant's provisional waiver is ultimately denied, he
or she may file a new Form I-601A application in accordance with the
form's instructions. Alternatively, the individual can file an
Application for Waiver of Grounds of Inadmissibility, Form I-601, with
USCIS after he or she attends the immigrant visa interview and after
the DOS consular officer determines that the individual is
inadmissible.
2. Motions To Reopen, Motions To Reconsider, and Administrative Appeals
A number of commenters requested that USCIS amend the regulations
to allow applicants the opportunity to appeal, or otherwise seek
reconsideration, of denied applications. Commenters stated that the
only option for challenging wrongful denials is to file new
applications or to hope that USCIS will exercise its sua sponte
authority to reopen cases. Commenters felt that this policy damages the
public's trust and fails to hold USCIS officers accountable for errors.
One commenter also noted that although denied applicants remain
eligible to apply for waivers through the Form I-601 waiver process
after the immigrant visa interview abroad, some still choose not to
pursue their immigrant visas because of the uncertainty and hardships
associated with consular processing. Commenters argued that these
individuals are likely to remain in the United States, thereby
diminishing the benefits of the provisional waiver process.
Consequently, commenters requested that DHS amend its regulations to
institute a mechanism for administrative appeal or reconsideration.
According to these commenters, such a mechanism would provide
additional due process protections for those whose applications are
erroneously denied, those who experience changed circumstances, and
those without legal representation (including those who have a
deficient or improper application filed by a notario or other
individual not authorized to practice law in the United States).
DHS declines to allow applicants to appeal or otherwise seek
reconsideration of denials. The final rule retains the prohibition on
appeals and motions, other than sua sponte motions entertained by
USCIS. As a preliminary matter, DHS disagrees that there is a legal due
process interest in access to or eligibility for discretionary
provisional waivers of inadmissibility. See, e.g., Darif v. Holder, 739
F.3d 329, 336 (7th Cir. 2014) (no due process interest in discretionary
extreme hardship waiver).\43\ Additionally, and as stated in the 2013
Rule, section 10(c) of the Administrative Procedure Act (APA), 5 U.S.C.
704, permits an agency to provide an administrative appeal if the
agency chooses to do so. See Darby v. Cisneros, 509 U.S. 137 (1993).
Due to efficiency concerns, DHS continues to believe that
administrative appeals should be reserved for actions that involve a
comprehensive, final assessment of an applicant's admissibility and
eligibility for a benefit. The provisional waiver process does not
involve such a comprehensive assessment, and the denial of such an
application is not a final agency action for purposes of the APA. See 8
CFR

[[Page 50259]]

212.7(e)(9)(ii). If a provisional waiver application is denied, the
applicant may either file a new provisional waiver application or seek
a waiver through the Form I-601 waiver process after DOS conclusively
determines that he or she is inadmissible under INA section
212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i). In contrast to denial of a
Form I-601A application for a provisional waiver, the denial of a Form
I-601 application is appealable. In this regard, the final eligibility
determination as it relates to the Form I-601 application lies with the
USCIS Administrative Appeals Office (AAO), and the final immigrant visa
eligibility determination rests with DOS. See 2013 Rule, 78 FR at 555.
---------------------------------------------------------------------------

\43\ Other courts of appeals have recognized that due process
does not require an agency to provide for administrative appeal of
its decisions. See, e.g., Zhang v. U.S. Dep't of Justice, 362 F.3d
155, 157 (2d Cir. 2004); Loulou v. Ashcroft, 354 F.3d 845, 850 (9th
Cir. 2003); Mendoza v. U.S. Att'y Gen., 327 F.3d 1283, 1289 (11th
Cir. 2003); Albathani v. INS, 318 F.3d 365, 376 (1st Cir. 2003);
Guentchev v. INS, 77 F.3d 1036, 1037-38 (7th Cir. 1996).
---------------------------------------------------------------------------

Moreover, the provisional waiver process is intended to be a
streamlined process that is closely coordinated with DOS immigrant visa
processing. Holding cases during an administrative appeal of a
provisional waiver application would produce logistical complications
for the respective agencies, interrupting the regular adjudication
flow, and therefore would be counterproductive to streamlining efforts.
3. Confidentiality Provisions
As with the 2013 Rule, commenters asked DHS to include
confidentiality protections so that denials of provisional waiver
applications would not automatically trigger removal proceedings. The
commenters asserted that the Department should provide regulatory
assurances stating that DHS will not put provisional waiver applicants
in removal proceedings, even if their applications are denied.
According to the commenters, such assurances were necessary because a
new Administration might institute a change in policy in this area.
DHS declines to adopt these suggestions as the Department already
has effective policies on these issues. DHS focuses its resources on
its enforcement priorities, namely threats to national security, border
security, or public safety.\44\ Similarly, USCIS continues to follow
current agency policy on the issuance of NTAs, which are focused on
public safety threats, criminals, and those engaged in fraud.\45\
Consistent with DHS enforcement policies and priorities, the Department
will not initiate removal proceedings against individuals who are not
enforcement priorities solely because they filed or withdrew
provisional waiver applications, or because USCIS denied such
applications.
---------------------------------------------------------------------------

\44\ See Memorandum from Secretary Jeh Charles Johnson, DHS,
Policies for Apprehension, Detention, and Removal of Undocumented
Immigrants (Nov. 20, 2014), available at https://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf.
\45\ See USCIS Memorandum, Revised Guidance for the Referral of
Cases and Issuance of Notices to Appear (NTAs) in Cases Involving
Inadmissible and Removable Aliens (Nov. 7, 2011), available at
www.uscis.gov/NTA.
---------------------------------------------------------------------------

E. Filing Requirements and Fees

1. Concurrent Filing
One commenter requested that DHS allow for the concurrent filing of
a Petition for Alien Relative, Form I-130 (``family-based immigrant
visa petition''), with the application for a provisional waiver. The
commenter reasoned that allowing the concurrent filing of the
provisional waiver application and a family-based immigrant visa
petition would create efficiencies for applicants and the U.S.
Government by reducing paperwork and wait times. Other commenters asked
that USCIS allow concurrent filing of a Form I-212 application for
consent to reapply for admission with the provisional waiver
application if the applicant also needs to overcome the inadmissibility
bar for prior removal under INA section 212(a)(9)(A), 8 U.S.C.
1182(a)(9)(A), at the time of the immigrant visa interview. Given that
processing of Form I-212 applications already takes place in the United
States, these commenters believed that it would make sense to
adjudicate the Form I-212 and provisional waiver applications at the
same time and by the same officer.
DHS has considered these comments but maintains that concurrent
filing would undermine the efficiencies that USCIS and DOS gain through
the provisional waiver process. Currently, denials of family-based
immigrant visa petitions are appealable to the BIA. See 8 CFR
1003.1(b)(5). Denials of other petitions also are generally appealable
to the AAO. See 8 CFR 103.3.\46\ If the denial of an immigrant visa
petition is challenged on appeal, USCIS would have to either 1) hold
the provisional waiver application until the decision on appeal is
issued, or 2) deny the provisional waiver application and subsequently
consider reopening it if the denial is overturned on appeal. Both
scenarios produce administrative inefficiencies and could cause USCIS
to incur additional costs for storing provisional waiver applications
and transferring alien registration files (A-files) or receipt files
between offices until the administrative appeals process is complete.
Therefore, DHS has decided against allowing the concurrent filing of
provisional waiver applications and immigrant visa petitions.
---------------------------------------------------------------------------

\46\ See also AAO's Practice Manual, Chapter 3, Appeals,
available at https://www.uscis.gov/about-us/directorates-and-program-offices/administrative-appeals-office-aao/administrative-appeals-office-aao.
---------------------------------------------------------------------------

DHS also declines to allow concurrent filing of Form I-212 and
provisional waiver applications. In the event that a Form I-212
application is denied, the applicant may file an administrative appeal
with the AAO. If USCIS allowed the concurrent filing of Form I-212 and
provisional waiver applications, USCIS would again be faced with
administratively inefficient options in cases where the Form I-212
application is denied and the applicant seeks to appeal that denial. As
noted above, the agency would again be faced with the choice of either
1) holding the provisional waiver application in abeyance until the
appeal is decided, or 2) denying the provisional waiver application and
later reopening it if the appeal is sustained. As previously discussed,
the provisional waiver process is intended to streamline DHS and DOS
processes ahead of immigrant visa interviews at consular posts. The
delay in the adjudication of provisional waiver applications that would
result from allowing additional procedural steps would decrease the
efficiencies derived from the provisional waiver process and thus be
counterproductive to these streamlining efforts. As indicated
previously in this preamble, however, DHS will allow an individual who
has been approved for consent to reapply for admission under 8 CFR
212.2(j) to seek a provisional waiver. By allowing individuals with
conditionally approved Form I-212 applications to apply for provisional
waivers, DHS further expands the class of eligible individuals who can
benefit from provisional waivers and, at the same time, maintains the
program's streamlined efficiency.
2. Fines or Penalties
Several commenters believed that DHS should require provisional
waiver applicants to pay fines or fees of up to several thousand
dollars to remain in the United States and obtain LPR status. Other
commenters appeared to suggest that DHS should generally impose
financial penalties on individuals unlawfully in the United States.
Congress has given the Secretary the authority to administer and
enforce the immigration and naturalization laws of the United States.
See 6 U.S.C. 112, 202(3)-(5); see also INA section 103, 8 U.S.C.
1103(a). The Secretary also is authorized to set filing fees for
immigration benefits at a level that will ensure recovery of the full
costs of

[[Page 50260]]

providing adjudication and naturalization services, including services
provided without charge to refugees, asylum applicants, and other
immigrants. See INA section 286(m), 8 U.S.C. 1356(m). This fee revenue
remains available to DHS to provide immigration and naturalization
benefits. See INA section 286(n), 8 U.S.C. 1356(n). DHS has already
established an appropriate filing fee for the Form I-601A application
as authorized by the statute. Congress, however, has not imposed a
specific fine or penalty on provisional waiver applicants or
individuals unlawfully present in the United States. Congress also did
not authorize any type of independent lawful status for such
applicants. Such fines, as with a general fine for unlawful presence,
would be unrelated to the costs incurred during the adjudication of
immigration benefits. USCIS does not have the authority to impose such
civil penalties.
3. Fees
DHS received several comments related to fees. One commenter noted
that Congress has already approved DHS's funding for this fiscal year,
and that Congress did not authorize changes to the Department's budget.
The commenter thus requested an explanation as to why DHS believes that
funding is available to effectuate the changes proposed by this rule.
Another commenter believed that DHS and DOS should return immigrant
visa fees to applicants if their provisional waiver applications are
ultimately denied. One commenter stated that the derivative spouses of
primary beneficiaries should pay separate application fees.
In contrast to many other U.S. Government agencies, USCIS does not
rely on appropriated funds for most of its budget. Rather, USCIS is a
fee-based agency that is primarily funded by the fees paid by
applicants and petitioners seeking immigration benefits. USCIS relies
on these fees to fund the adjudication of provisional waiver
applications; none of the funds used for these adjudications comes from
funds appropriated annually by Congress.
Furthermore, as noted above, the fees received with provisional
waiver applications and immigrant visa petitions cover the costs of
adjudication. These fees are necessary regardless of whether the
application or petition is ultimately approved or denied. Therefore,
USCIS does not return fees when a petition, application, or request is
denied. For its part, DOS determines its own fees pursuant to its own
authorities. See, e.g., INA section 104, 8 U.S.C. 1104; 8 U.S.C. 1714;
see also 22 CFR 22.1, 42.71(b).
Finally, an individual who applies for a provisional waiver must
submit the application with the appropriate filing and biometrics fees,
as outlined in the form's instructions and 8 CFR 103.7, even if the
individual is a derivative beneficiary.
4. Premium Processing
A few commenters recommended that DHS establish a premium
processing fee to expedite processing of provisional waiver
applications. One commenter indicated that the processing time for a
provisional waiver application should not exceed 30 days under premium
processing.
DHS declines to adopt the suggestion to extend premium processing
to provisional waiver applications. The INA permits certain employment-
based petitioners and applicants for immigration benefits to request
premium processing for a fee. See INA section 286(u), 8 U.S.C. 1356(u).
DHS has established the current premium processing fee at $1,225.\47\
See 8 CFR 103.7(b)(1)(i)(RR); see also 8 CFR 103.7(e) (describing the
premium processing service). The premium processing fee, which is paid
in addition to the base filing fee, guarantees that USCIS processes a
benefit request within 15 days. See 8 CFR 103.7(e)(2). If USCIS cannot
take action within 15 days, USCIS refunds the premium processing
fee.\48\ Id.
---------------------------------------------------------------------------

\47\ The fee was originally set at $1,000, and may be adjusted
according to the Consumer Price Index (CPI). See INA section 286(u),
8 U.S.C. 1356(u).
\48\ Even if USCIS refunds this fee, USCIS generally continues
expedited processing of the benefit request.
---------------------------------------------------------------------------

DHS has not extended premium processing to any immigration benefit
except for those authorized under INA section 286(u), 8 U.S.C. 1356(u).
Notably, INA section 286(u) expressly authorizes premium processing
only for employment-based petitions and applications. Even if USCIS
could develop an expedited processing fee for other benefits, USCIS
would not apply it to the provisional waiver process, as that process
requires background checks over which USCIS does not control timing.
Additionally, determining an appropriate fee for such a new process
would require USCIS to estimate the costs of that service and engage in
separate notice-and-comment rulemaking to establish the new fee. Thus,
DHS will not establish a Form I-601A premium processing fee at this
time.
5. Expedited Processing
One commenter stated that the processing time for a provisional
waiver application should generally not exceed 30 days. Other
commenters urged USCIS to expedite the processing of applications for
family members of active duty members or honorably discharged veterans
of the U.S. Armed Forces. One commenter asked that DHS and DOS expedite
the immigrant visa interviews of individuals with approved provisional
waivers.\49\
---------------------------------------------------------------------------

\49\ One commenter also urged CBP to expedite Freedom of
Information Act requests so that individuals are able to obtain the
information they need to assess eligibility and complete their
applications. The commenter indicated that expanding the provisional
waiver process is useless unless potential applicants are given
access to their files. DHS declines to adopt this suggestion as it
is beyond the scope of this rulemaking.
---------------------------------------------------------------------------

DHS did not incorporate these suggestions in this final rule. DHS
believes the provisional waiver process is well managed, and officers
adjudicate cases quickly after receiving an applicant's background
check results. Creating an expedited process for certain applicants,
including relatives of military members and veterans, would create
inefficiencies and potentially slow the process for all provisional
waiver applicants.\50\
---------------------------------------------------------------------------

\50\ Each time USCIS has to set aside a regularly filed case to
prioritize the adjudication of another case, it delays those cases
that were filed prior to the prioritized case and disrupts the
normal adjudication process.
---------------------------------------------------------------------------

Additionally, even if DHS were to expedite the provisional waiver
process for certain applicants, they would still be required to spend
time navigating the DOS immigrant visa process. DHS believes that
expediting the processing of provisional waiver applications for
certain individuals would generally not significantly affect the
processing time of their immigrant visa processing with DOS.
Individuals often file their provisional waiver applications with USCIS
while the DOS National Visa Center (NVC) pre-processes their immigrant
visa applications. The NVC pre-processing of immigrant visa
applications usually runs concurrently with the USCIS processing of
provisional waiver applications. Thus, even if DHS were to expedite the
provisional waiver process for certain applicants, those applicants
would nevertheless be required to wait for DOS to complete its process.
Additionally, the processing time for immigrant visa applications at
the NVC largely depends on other outside factors, including whether
applicants submit necessary documents to the NVC on a timely basis
throughout the process. In many cases, including those in which
applicants

[[Page 50261]]

delay in getting necessary documents to the NVC, immigrant visa
processing would not be affected by the expediting of other processes.
DHS reminds applicants, however, that they may request expedited
adjudication of a provisional waiver application according to current
USCIS expedite guidance.\51\ Also, relatives of current and former U.S.
Armed Forces members may seek USCIS assistance through the agency's
special military help line.\52\
---------------------------------------------------------------------------

\51\ For guidance on USCIS expedite procedures, please visit
http://www.uscis.gov/forms/expedite-criteria.
\52\ Information about the military help line is available at
http://www.uscis.gov/military/military-help-line. DHS encourages
military families that need assistance to reach out to USCIS through
the help line.
---------------------------------------------------------------------------

6. Background Checks and Drug Testing
One commenter requested that USCIS conduct background checks and
drug testing for provisional waiver applicants.\53\
---------------------------------------------------------------------------

\53\ Two commenters also asked that USCIS allow provisional
waiver applicants to include medical examinations performed by
USCIS-designated civil surgeons with their provisional waiver
applications. These commenters believed that the opportunity to
provide the results of the medical examination before departure for
the immigrant visa interview would further streamline the process.
The commenters also believed that applicants could either avoid the
higher panel physician examination fee abroad, or detect and treat
possible medical conditions that would render them ineligible for
their immigrant visas before departure. One of these commenters also
indicated that such a process would allow an applicant's
representative to check the panel physician's work. DHS did not
adopt this suggestion. Under DOS regulations, each immigrant visa
applicant must be examined by a DOS-designated panel physician, see
22 CFR 42.66, and altering DHS regulations to permit submission of
medical examinations with a provisional waiver application would not
eliminate that requirement.
---------------------------------------------------------------------------

DHS is not modifying the background checks and biometrics
requirement in this rule to include drug testing. Individuals seeking
provisional waivers already must provide biometrics for background and
security checks. Based in part on the background check results, USCIS
determines whether the applicant is eligible for the waiver, including
whether a favorable exercise of discretion is warranted. DHS only
collects the biometric information needed to run such checks and to
adjudicate any requested immigration benefit. Additional testing, such
as a medical examination, is required within the DOS immigrant visa
process and for DOS's visa eligibility determinations. Performing
medical tests as part of the provisional waiver process would duplicate
the DOS process.

F. Comments Outside the Scope of This Rulemaking

DHS received a number of comments that are outside the scope of
this rule. For example, one commenter asked USCIS to publish guidance
on whether an individual who is subject to the 3- or 10-year unlawful
presence bar, but who has already returned to the United States, could
satisfy the requisite inadmissibility period while in the United
States. Other commenters suggested that those with approved provisional
waivers should be permitted to seek adjustment of status in the United
States. Many asked DHS to extend the period for accepting adjustment of
status applications pursuant to INA section 245(i), 8 U.S.C. 1255(i).
Others requested that DHS: create a new waiver for people who leave the
United States because of family emergencies; make certain immigrant
visa categories immediately available or create new immigrant visa
categories; Create new inadmissibility periods for purposes of INA
sections 212(a)(9)(B)(i) and 212(a)(9)(C), 8 U.S.C. 1182(a)(9)(B)(i)
and 1182(a)(9)(C); and generally modify immigration laws, particularly
those perceived as harsh.
Other commenters requested changes to DOS consular processes or
regulations, which are also not within the scope of this rule. For
example, commenters asked DHS to instruct DOS consular officers to
issue immigrant visas to applicants with approved provisional waiver
applications.\54\ One commenter criticized the inability to appeal
immigrant visa denials to DHS as unfair, even though DOS, not DHS,
adjudicates immigrant visa applications. See generally 22 CFR part 42.
Similarly, another commenter stated that individuals whose immigrant
visa applications have been denied by DOS must be allowed to reopen
those applications so that they can be allowed to file provisional
waiver applications.\55\
---------------------------------------------------------------------------

\54\ To the extent that these comments are read to suggest that
DOS should issue immigrant visas to individuals with approved
provisional waiver applications without assessing whether such
individuals are inadmissible for other reasons, DHS believes those
comments are outside the scope of this rulemaking. To the extent
that the comments are read to suggest that DOS should not re-
adjudicate or ``second-guess'' USCIS's provisional waiver
determinations, DHS notes that DOS does not reassess USCIS'
provisional waiver determination. DOS, however, is required to
assess whether an individual is ineligible for an immigrant visa,
including whether an applicant is inadmissible. If the individual is
inadmissible on a ground other than unlawful presence, or is
otherwise ineligible for the immigrant visa, DOS may deny the
individual's immigrant visa application, even if the provisional
waiver was approved.
\55\ As with other DOS processes, review of the denial of a visa
application is governed by DOS regulations, not DHS regulations.
---------------------------------------------------------------------------

Because DHS believes that these suggestions are outside the scope
of this rule, the suggestions will not be addressed in this rule.

G. Comments on the Executive Orders 12866/13563 Analysis

In one comment requesting that the DOS visa interview scheduling
cut-off date be eliminated as an ineligibility requirement, the
commenter cited DHS's acknowledgement that the 2013 Rule's provisional
waiver application projections were overestimated. Because of the
overestimation in the 2013 Rule, the commenter suggested that DHS
likely overestimated provisional waiver applications resulting from the
2015 Proposed Rule. Since publication of the 2015 Proposed Rule, DHS
has adjusted its application projection method based on new, revised
data from DOS and this rule's new provisional waiver eligibility
criteria. DHS believes this new method will better project the
provisional waiver applications resulting from the rule.
DHS received many comments affirming the benefits of the
provisional unlawful presence waiver described in the 2015 Proposed
Rule. Commenters agreed that the provisional waiver's expansion would
provide greater certainty for families, promote family unity, improve
administrative efficiency, improve communication between DHS and other
government agencies, facilitate immigrant visa issuance, save time and
resources, and relieve the emotional and financial hardships that
family members experience from separation.
DHS also received several economic-related comments that were
outside the scope of this rule. Several commenters mentioned that
obtaining legal status, which both the provisional and general unlawful
presence waivers may facilitate, provides a significant benefit to the
undocumented individual as well as American society. According to the
commenters, this is because obtaining legal status tends to increase
taxable income, reduce poverty, contribute to job growth, help
businesses gain qualified employees, and add to consumer spending.
Although DHS agrees that obtaining legal status provides important
economic benefits to once-undocumented individuals, and the United
States in general, those benefits are not directly attributable to the
provisional waiver eligibility

[[Page 50262]]

provided by this rule. Rather, obtaining a waiver of the unlawful
presence ground of inadmissibility (provisional or not) is just one
step in the process for gaining legal status, which USCIS hopes this
rule will facilitate.
A different commenter asserted that non-U.S. citizen workers hurt
the economy. DHS disagrees with this comment and finds that it is
beyond the scope of this rule because obtaining a waiver of
inadmissibility (provisional or not) for unlawful presence does not
provide employment authorization for someone who is unlawfully present.
Receiving such a waiver is just one step in the process for gaining the
legal status required to lawfully work in the United States.

IV. Regulatory Amendments

After careful consideration of the public comments, as previously
summarized in this preamble, DHS adopts the regulatory amendments in
the proposed rule without change, except for the provisions noted
below. In addition to these substantive changes, DHS also has made
edits to the text of various provisions that do not change the
substance of the proposed rule.

A. Amending 8 CFR 212.7(e)(1) To Clarify Which Agency Has Jurisdiction
To Adjudicate Provisional Waivers

Currently, 8 CFR 212.7(e)(1) specifies that all provisional waiver
applications, including an application made by an individual in removal
proceedings before EOIR, must be filed with USCIS. The provision
implies, but does not specifically state, that USCIS has exclusive
jurisdiction to adjudicate and decide provisional waivers. With this
final rule, DHS modifies the regulatory text to clarify that USCIS has
exclusive jurisdiction, regardless of whether the applicant is or was
in removal, deportation, or exclusion proceedings. See new 8 CFR
212.7(e)(2).

B. Removing the Reason-to-Believe Standard as a Basis for Ineligibility

Under the 2013 Rule, an individual is ineligible for a provisional
waiver if ``USCIS has reason to believe that the alien may be subject
to grounds of inadmissibility other than unlawful presence under INA
section 212(a)(9)(B)(i)(I) or (II), 8 U.S.C. 1182(a)(9)(B)(I) or (II),
at the time of the immigrant visa interview with the Department of
State.'' 8 CFR 212.7(e)(4)(i). The 2015 Proposed Rule proposed to
retain this requirement but requested any alternatives that may be more
effective than the current provisional waiver process or the amended
process in the proposed rule. See 80 FR 43343. In response to comments,
DHS is removing this standard as a basis for ineligibility for
provisional waivers. See new 8 CFR 212.7(e)(4). DHS, however, retains 8
CFR 212.7(e)(14)(i), which provides that a provisional waiver is
automatically revoked if DOS determines, at the time of the immigrant
visa interview, that the applicant is inadmissible on any grounds of
inadmissibility other than unlawful presence under INA section
212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B). Revocation of the provisional
waiver based on inadmissibility on other grounds, however, does not
prevent the individual from applying for a general waiver under 8 CFR
212.7(a) to cure his or her inadmissibility under INA section
212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B) or any other ground of
inadmissibility for which a waiver is available.

C. Removing the DOS Visa Interview Scheduling Cut-Off Dates in 8 CFR
212.7(e)(4)(iv) and 212.7(e)(5)(ii)(G)

In the proposed rule, DHS sought to retain date restrictions that
prevented immediate relatives of U.S. citizens from obtaining
provisional waivers if DOS acted prior to January 3, 2013 to schedule
their immigrant visa interviews. See 80 FR at 43343. DHS also proposed
that other individuals (i.e., individuals other than certain immediate
relatives of U.S. citizens) would be ineligible for provisional waivers
if DOS had acted on or before the effective date of this final rule to
schedule the immigrant visa interview. Id. Furthermore, DHS proposed to
reject provisional waiver applications that were not filed consistent
with the above date restrictions. See proposed 8 CFR
212.7(e)(5)(G)(ii)(1) and (2). In response to comments, DHS has decided
to eliminate these filing restrictions. See new 8 CFR 212.7(e)(4) and
(5).

D. Allowing Individuals With Final Orders of Removal, Deportation, or
Exclusion To Apply for Provisional Waivers

Since the inception of the provisional waiver process, individuals
have been ineligible for provisional waivers if they are 1) subject to
final orders of removal issued under INA sections 217, 235, 238, or
240, 8 U.S.C. 1187, 1225, 1228, or 1229a; 2) subject to final orders of
exclusion or deportation under former INA sections 236 or 242, 8 U.S.C.
1226 or 1252 (pre-April 1, 1997), or 3) subject to final orders under
any other provision of law (including an in absentia order of removal
under INA section 240(b)(5), 8 U.S.C. 1229a(b)(5)). See generally 2013
Rule, 78 FR 536. As indicated in the response to comments on this
subject in the preamble, DHS is amending the rule to provide
eligibility for provisional waivers to certain individuals who are
subject to an administratively final order of removal, deportation, or
exclusion and therefore will be inadmissible under INA section
212(a)(9)(A)(i) or (ii), 8 U.S.C. 1182(a)(9)(A)(i) or (ii), upon
departure from the United States. Under the final rule, such
individuals will be eligible to apply for provisional waivers if they
have been granted consent to reapply for admission under INA section
212(a)(9)(A)(iii), 8 U.S.C. 1182(a)(9)(A)(iii) and 8 CFR 212.2(j). See
new 8 CFR 212.7(e)(4) (iv). However, they cannot file Form I-212
applications and provisional waiver applications concurrently. See new
8 CFR 212.7(e)(4)(iv).
Notwithstanding this change, individuals will remain ineligible for
provisional waivers if 1) they have returned unlawfully to the United
States after removal, and 2) CBP or ICE, after service of notice under
8 CFR 241.8, has reinstated a prior order of removal, deportation, or
exclusion. Under INA section 241(a)(5), 8 U.S.C. 1231(a)(5),
reinstatement of a such an order makes the individual ineligible for
waivers of inadmissibility and other forms of relief. See new 8 CFR
212.7(e)(4)(v). Moreover, even in the absence of reinstatement, the
individual's unauthorized return to the United States may be considered
as an adverse discretionary factor in adjudicating a provisional waiver
application. Finally, the approval of a provisional waiver application
will be automatically revoked if the applicant is ultimately determined
to be inadmissible under INA 212(a)(9)(C), 8 U.S.C 1182(a)(9)(C), for
having unlawfully returned to the United States after a prior removal
or prior unlawful presence.

E. Clarifying When an Individual Is Subject to Reinstatement and
Ineligible for Provisional Waivers

Currently, an individual is ineligible for a provisional waiver if
he or she is subject to reinstatement of a prior order under INA
section 241(a)(5), 8 U.S.C. 1231(a)(5). See 8 CFR 212.7(e)(4)(vii). DHS
retained this ineligibility criteria in the proposed rule. In this
final rule, however, DHS clarifies which individuals are ineligible for
provisional waivers based on application of the reinstatement of
removal provision at INA section 241(a)(5), 8 U.S.C. 1231(a)(5). Under
the final rule, an individual will be ineligible for a provisional
waiver if ICE or CBP, after service of notice under 8 CFR 241.8, has
reinstated the removal, deportation, or

[[Page 50263]]

exclusion order prior to the individual filing the provisional waiver
or while the provisional waiver application is pending. See new 8 CFR
212.7(e)(4)(v).

F. Miscellaneous Technical Amendments

In this final rule, DHS made several technical and non-substantive
changes. First, DHS amended 8 CFR 212.7(e)(2) by adding the word
``document'' after the terms ``employment authorization'' and ``advance
parole.'' Additionally, DHS simplified the text of 8 CFR 212.7(e)(5).
Currently, that provision outlines filing conditions, which are also
provided in the instructions to provisional waiver applications. DHS,
therefore, revised the provision to refer individuals to the filing
instructions of the form.

V. Statutory and Regulatory Requirements

A. Unfunded Mandates Reform Act of 1995

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

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

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
After careful consideration of public comments on the 2015 Proposed
Rule,\56\ DHS adopts most of the regulatory amendments specified in the
proposed rule without change, except for the provisions addressing
ineligibility for: 1) reason to believe that the applicant may be
inadmissible on grounds other than unlawful presence at the time of the
DOS immigrant visa interview (8 CFR 212.7(e)(4)(i)); 2) DOS initially
acting before January 3, 2013 or before the effective date of this
final rule to schedule an applicant's immigrant visa interview
(proposed 8 CFR 212.7(e)(4)(iv) and 212.7(e)(5)(ii)(G)); and 3) the
applicant being subject to an administratively final order of
exclusion, deportation, or removal (``final order'')(8 CFR
212.7(e)(4)(vi)). With the adoption of most of the proposed regulatory
amendments, DHS largely applies the 2015 Proposed Rule's economic
analysis approach to this final rule. However, some changes to the
analysis are necessary to capture the population of individuals now
eligible for provisional waivers through this final rule's elimination
and modification of certain ineligibility provisions just described and
source data revisions.
---------------------------------------------------------------------------

\56\ See 80 FR 43338 (July 22, 2015).
---------------------------------------------------------------------------

This rule's expansion of the provisional waiver process will create
costs and benefits to newly eligible provisional waiver (Form I-601A)
applicants, their U.S. citizen or LPR family members, and the Federal
Government (namely, USCIS and DOS), as outlined in Table 1. This rule
will impose fee, time, and travel costs on an estimated 100,000 newly
eligible individuals who choose to complete and submit provisional
waiver applications and biometrics (fingerprints, photograph, and
signature) to USCIS for consideration during the 10-year period of
analysis (see Table 8). These costs will equal an estimated $52.4
million at a 7 percent discount rate and $64.2 million at a 3 percent
discount rate in present value across the period of analysis. On an
annualized basis, the costs will measure approximately $7.5 million at
both 7 percent and 3 percent discount rates (see Table 1).
Newly eligible provisional waiver applicants and their U.S. citizen
or LPR family members will benefit from this rule. Individuals applying
for a provisional waiver will receive advance notice of USCIS' decision
to provisionally waive their 3- or 10-year unlawful presence bar under
INA section 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B), before they leave the
United States for their immigrant visa interviews abroad. This offers
applicants and their family members the certainty of knowing that the
applicants have been provisionally approved for a waiver of certain
unlawful presence grounds of inadmissibility before departing from the
United States. Individuals with approved provisional waivers may
experience shortened periods of separation from their family members
living in the United States while they pursue immigrant visas abroad,
thus reducing related financial and emotional strains on the families.
USCIS and DOS will continue to benefit from the operational
efficiencies gained from the provisional waiver's role in streamlining
immigrant visa application processing, but on a larger scale than
currently in place.
In the absence of this rule, DHS assumes that the majority of
individuals who would have been newly eligible for provisional waivers
under this rule will likely continue to pursue an immigrant visa
through consular processing abroad and apply for waivers of unlawful
presence through the Form I-601 process. Those who apply for unlawful
presence waivers through the Form I-601 process will incur fee, time,
and travel costs similar to individuals applying for waivers through
the provisional waiver process. However, without this rule, those who
must seek a waiver of inadmissibility abroad through the Form I-601
process after the immigrant visa interview may face longer separation
times from their families in the United States and experience less
certainty regarding the approval of a waiver of the 3- or 10-year
unlawful presence bar before departing from the United States.

[[Page 50264]]

Table 1--Total Costs and Benefits of 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................ $64,168,205....... $52,429,216....... $7,522,471........ $7,464,741
----------------------------------------------------------------------------------------------------------------
Total Benefits:

2. Background
Individuals 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.
Those present in the United States without having been inspected and
admitted or paroled are typically ineligible to adjust status in the
United States. To obtain LPR status, such individuals must leave the
United States for immigrant visa processing at a U.S. Embassy or
consulate abroad. Because these individuals are present in the United
States without having been inspected and admitted or paroled, many have
accrued enough unlawful presence to trigger the 3- or 10-year unlawful
presence grounds of inadmissibility when leaving the United States for
immigrant visa processing abroad.\57\ 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 will consist almost exclusively of
individuals who are eligible for immigrant visas but are unlawfully
present in the United States without having been inspected and admitted
or paroled.
---------------------------------------------------------------------------

\57\ Individuals who depart the United States after accruing
more than 180 days, but less than 1 year, of unlawful presence are
generally inadmissible for 3 years. Those who depart the United
States after accruing 1 year or more of unlawful presence are
generally inadmissible for 10 years.
---------------------------------------------------------------------------

Before the introduction of the provisional waiver process,
individuals seeking immigrant visas through consular processing were
only able to apply for a waiver of a ground of inadmissibility, such as
unlawful presence, after attending the immigrant visa interview abroad.
If a consular officer identified any ground(s) of inadmissibility
during an immigrant visa interview, the applicant was tentatively
denied an immigrant visa and allowed to seek a waiver of any waivable
ground(s) of inadmissibility. The individual could apply for such a
waiver by filing Form I-601 with USCIS. Those who applied for Form I-
601 waivers were required to remain abroad while USCIS adjudicated
their Forms I-601, which currently takes over five months to
complete.\58\ If USCIS approved the 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.
---------------------------------------------------------------------------

\58\ U.S. Citizenship and Immigration Services. ``USCIS
Processing Time Information for the Nebraska Service Center- Form I-
601.'' Available at https://egov.uscis.gov/cris/processTimesDisplayInit.do (last updated Feb. 11, 2016).
---------------------------------------------------------------------------

In some instances, the Form I-601 waiver process led to lengthy
separations of immigrant visa applicants from their U.S. citizen or LPR
spouses, parents, and children, causing financial and emotional harm.
The Form I-601 waiver process also created processing inefficiencies
for both USCIS and DOS through repeated interagency communication and
through multiple consular appointments or interviews.
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'').\59\
The 2013 Rule created a provisional waiver process for certain
immediate relatives of U.S. citizens (namely, spouses, children
(unmarried and under 21), and parents of U.S. citizens (provided the
child is at least 21)) who are in the United States, are seeking
immigrant visas, can demonstrate extreme hardship to a U.S. citizen
spouse or parent, would be inadmissible upon departure from the United
States due to only the accrual of unlawful presence, and meet other
eligibility conditions. That process currently allows eligible
individuals to apply for a provisional waiver and receive a
notification of USCIS' decision on their provisional waiver application
before departing for DOS consular processing of their immigrant visa
applications. The provisional waiver process contrasts to the Form I-
601 waiver process, which requires

[[Page 50265]]

applicants to wait abroad, away from their family members in the United
States, while USCIS adjudicates their application for a waiver of
inadmissibility. Once approved for a provisional waiver, they are
scheduled for the immigrant visa interview abroad. During the immigrant
visa interview, a DOS consular officer will determine whether the
applicant is otherwise admissible to the United States and eligible to
receive an immigrant visa. Since the provisional waiver process's
inception, USCIS has approved more than 66,000 provisional waiver
applications for certain immediate relatives of U.S. citizens,\60\
allowing these individuals and their families to enjoy the benefits of
such waivers.
---------------------------------------------------------------------------

\59\ See 78 FR 536 (Jan. 3, 2013).
\60\ This figure is based on Form I-601A approvals data through
the end of fiscal year 2015 (September 30, 2015). Note that USCIS
began accepting provisional waiver applications on March 4, 2013.
Source: USCIS' Office of Performance and Quality.
---------------------------------------------------------------------------

3. Purpose of Rule
To assess the initial effectiveness of the provisional waiver
process, DHS decided to offer this process to a limited group--certain
immediate relatives of U.S. citizens--in the 2013 Rule.\61\ Based on
the lengthy separation periods and related financial and emotional
burdens to families associated with the Form I-601 waiver process, and
based on 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 immigrant visa
applicants.\62\ Consistent with that directive and the INA, on July 22,
2015, DHS published the 2015 Proposed Rule, which proposed to expand
eligibility for provisional waivers of certain grounds of
inadmissibility based on the accrual of unlawful presence to include
all other individuals seeking an immigrant visa (all other immigrant
visa applicants \63\) who are statutorily eligible for a waiver of such
grounds, are seeking a waiver in connection with an immigrant visa
application, are present in the United States, and meet other
conditions.\64\ In the 2015 Proposed Rule, USCIS also proposed 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, consistent with
the statutory waiver authority. Under this provision, provisional
waiver applicants could show that their denial of admission would cause
extreme hardship to their U.S. citizen or LPR spouses or parents.
---------------------------------------------------------------------------

\61\ See 78 FR at 542.
\62\ This expansion included, but was not limited to, adult sons
and daughters of U.S. citizens; brothers and sisters of U.S.
citizens; and spouses and children of LPRs. See Memorandum from Jeh
Charles Johnson, Secretary, DHS, to L[eacute]on Rodr[iacute]guez,
Director, USCIS, 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.
\63\ For the purposes of this analysis, 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.
\64\ See 80 FR 43338 (July 22, 2015).
---------------------------------------------------------------------------

This final rule adopts most of the regulatory amendments set forth
in the 2015 Proposed Rule except for a few provisions. In particular,
USCIS, in response to public comments on the 2015 Proposed Rule, will
eliminate the current provisional waiver provisions addressing
ineligibility for: (1) Reason to believe that the applicant may be
inadmissible on grounds other than unlawful presence at the time of the
DOS immigrant visa interview (8 CFR 212.7(e)(4)(i)); (2) DOS initially
acting before January 3, 2013 (for certain immediate relatives) or
before the effective date of this final rule to schedule an applicant's
immigrant visa interview (proposed 8 CFR 212.7(e)(4)(iv) and
212.7(e)(5)(ii)(G)); and (3) applicants who are subject to an
administratively final order of exclusion, deportation, or removal (8
CFR 212.7(e)(4)(vi)).\65\ An individual subject to a final order may
now seek a provisional waiver, but only if he or she has already
requested and been approved for consent to reapply for admission under
INA section 212(a)(9)(A)(iii), 8 U.S.C. 1182(a)(9)(A)(iii) via a Form
I-212 application. Filing and receiving approval of the Form I-212
application is a requirement already in place for these individuals to
be eligible for an immigrant visa.
---------------------------------------------------------------------------

\65\ As mentioned earlier in this preamble, USCIS will
automatically revoke a provisional waiver if DOS determines, at the
time of the immigrant visa interview, that the applicant is
inadmissible on any ground(s) of inadmissibility other than unlawful
presence under INA section 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B).
Revocation of the provisional unlawful presence waiver for this
reason does not prevent an individual from applying under 8 CFR
212.7(a) for a waiver of inadmissibility under INA section
212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v), or for any other waiver
that may be available for any other ground(s) of inadmissibility.
---------------------------------------------------------------------------

Other than the changes outlined in this rulemaking, DHS will
maintain all other eligibility requirements for the provisional waiver
as currently described in 8 CFR 212.7(e), including the requirements to
submit biometrics, pay the provisional waiver filing fee and the
biometric services fee, and be present in the United States at the time
of the provisional waiver application filing and biometrics
appointment.
This rule's amendments will provide more individuals seeking
immigrant visas 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 applicants.
4. Current Provisional Waiver Process
In this analysis, DHS draws on applicable DOS visa ineligibility
statistics and historical provisional waiver application data to
estimate the current demand for provisional waivers and the anticipated
demand directly resulting from this final rule. Illustrating the past
demand for provisional waivers, Table 2 displays the actual numbers of
Form I-601A receipts, approvals, and denials recorded for March of
fiscal year (FY) 2013 \66\ through the end of FY 2015. Across those
years, DHS received about 107,000 Form I-601A applications, for an
average of almost 42,000 per year.\67\ During the same period, DHS
approved 66,000 Form I-601A applications and denied 27,000.\68\
---------------------------------------------------------------------------

\66\ FY 2013 was October 1, 2012 to September 30, 2013.
\67\ DHS calculated the average Form I-601A receipts per month
since the provisional waiver process's implementation in March 2013
through the end of FY 2015, which equaled 3,467.65, and multiplied
the average monthly receipts by 12 to determine the annual average.
\68\ Approvals and denials reflect actual cases adjudicated,
which do not directly correspond to filing receipts for the same
year.
---------------------------------------------------------------------------

Of the provisional waiver applications adjudicated from FY 2013 to
FY 2015, USCIS denied a total of 9 percent for the following reasons:
An applicant's lack of a qualifying relative for the waiver's extreme
hardship determination (0.8 percent); \69\ reason to believe an
applicant would be inadmissible based on grounds other than unlawful
presence at the time of the immigrant visa interview (7.2 percent); DOS
initially acting before January 3, 2013 to schedule an applicant's
immigrant visa interview (0.1 percent); and an applicant being subject
to a final order

[[Page 50266]]

(0.9 percent).\70\ With this final rule's elimination or modification
of these ineligibility grounds, more individuals will presumably be
eligible for provisional waivers.
---------------------------------------------------------------------------

\69\ Note that applicants denied for not having a qualifying
U.S. citizen spouse or parent include those who could potentially
have LPR spouses and/or parents who might experience extreme
hardship as well as those who attempted to demonstrate hardship to a
U.S. citizen child-a relative who is not a qualifying relative for
the purposes of the unlawful presence waiver, provisional or not.
The exact number of denials according to these different
demonstrations is unknown. Source: Email correspondence with USCIS'
National Benefits Center on November 24, 2015.
\70\ Source: Email correspondence with USCIS' National Benefits
Center on October 7, 2015 and December 7, 2015.
---------------------------------------------------------------------------

The actual Form I-601A filing demands illustrated in Table 2 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
certain immediate relatives that would have allowed for a precise
calculation of the rule's impact. Due to these limitations, DHS instead
estimated the rule's impact based on various demand scenarios. In the
analysis for this final rule, DHS uses actual USCIS receipts for
provisional waiver applications to determine the future demand for
provisional waivers, as discussed later.

Table 2--Historical Numbers of Form I-601A Receipts, Approvals, and Denials
----------------------------------------------------------------------------------------------------------------
Fiscal year Month Receipts Approvals Denials
----------------------------------------------------------------------------------------------------------------
2013............................... Mar........................ 1,306 0 0
Apr........................ 2,737 5 2
May........................ 3,267 52 14
Jun........................ 3,119 226 238
Jul........................ 3,425 1,006 603
Aug........................ 3,075 1,435 790
Sep........................ 2,798 1,749 438
-----------------------------------------------
FY 2013 Total.................. ........................... 19,727 4,473 2,085
2014............................... Oct........................ 2,886 1,465 602
Nov........................ 2,697 1,456 562
Dec........................ 2,641 1,708 532
Jan........................ 2,256 1,616 780
Feb........................ 2,483 1,282 579
Mar........................ 2,990 1,216 987
Apr........................ 3,266 1,363 996
May........................ 3,650 2,052 708
Jun........................ 4,184 3,151 1,100
Jul........................ 3,778 4,211 1,460
Aug........................ 3,907 3,912 1,801
Sep........................ 4,237 4,075 1,484
-----------------------------------------------
FY 2014 Total.................. ........................... 38,975 27,507 11,591
2015............................... Oct........................ 4,540 4,196 1,469
Nov........................ 3,728 2,167 951
Dec........................ 4,103 2,838 1,180
Jan........................ 3,370 3,011 1,433
Feb........................ 3,402 2,986 1,381
Mar........................ 4,588 2,024 960
Apr........................ 4,176 2,966 1,138
May........................ 4,030 2,708 934
Jun........................ 4,364 2,883 1,139
Jul........................ 4,162 2,712 946
Aug........................ 4,019 2,939 805
Sep........................ 4,313 2,880 733
FY 2015 Total.................. ........................... 48,795 34,310 13,069
-----------------------------------------------
FY 2013-FY 2015 Total...... ........................... 107,497 66,290 26,745
FY 2013-FY 2015 Annual ........................... 41,612 25,661 10,353
Average \71\.
----------------------------------------------------------------------------------------------------------------
Note: Approvals and denials reflect actual cases adjudicated, which do not directly correspond to filing
receipts for the month.
Source: USCIS' Office of Performance and Quality.

Table 3 shows DOS's historical findings of immigrant visa
ineligibility due to only unlawful presence inadmissibility grounds,
which DOS revised for FY 2010 through FY 2014 following the 2015
Proposed Rule's publication.\72\ Between FY 2010 and FY 2015, DOS
recorded ineligibility due to only unlawful presence for almost 118,000
immediate relative visas and 24,000 all other immigrant visas.\73\
---------------------------------------------------------------------------

\71\ To determine these annual averages, DHS calculated the
average Form I-601A receipts, approvals, and denials per month since
implementation of the provisional unlawful presence waiver process
in March 2013 through the end of FY 2015 and multiplied those
averages by 12. The average monthly receipts equaled 3,467.65, while
approvals measured 2,138.39 and denials equaled 862.74.
\72\ DOS determined that the rules it used to collect the
inadmissibility and ineligibility data included in the 2015 Proposed
Rule resulted in errors. DOS has since revised its rules to correct
the errors.
\73\ Of the ineligibility figures recorded for the ``all other
immigrants'' visa category, nearly 97 percent correspond to family-
sponsored immigrant visa applications (which does not include
applications filed by immediate relatives of U.S. citizens), 2
percent correspond to employment-based immigrant visa applications,
1 percent correspond to Diversity Visa immigrant applications, and a
fraction of 1 percent correspond to certain special immigrant visa
applications.
---------------------------------------------------------------------------

Table 4 shows DOS's historical findings of immigrant visa
ineligibility due to unlawful presence and any other inadmissibility
ground barring visa eligibility.\74\ DHS uses this population in part
to estimate the number of

[[Page 50267]]

immediate relatives who will become eligible for provisional waivers
through this final rule's elimination or modification of certain
provisional waiver ineligibilities currently in place.
---------------------------------------------------------------------------

\74\ Other inadmissibility grounds barring visa eligibility can
be found in INA section 212(a), 8 U.S.C. 1182(a).

Table 3--Number of Immigrant Visa Ineligibility Findings Due to Only Unlawful Presence
----------------------------------------------------------------------------------------------------------------
Visa category type
--------------------------------
Fiscal year All Other Total
Immediate immigrants
relatives \75\ \76\
----------------------------------------------------------------------------------------------------------------
2010............................................................ 15,870 2,739 18,609
2011............................................................ 18,569 5,043 23,612
2012............................................................ 19,989 5,100 25,089
2013............................................................ 10,136 4,126 14,262
2014............................................................ 18,201 3,406 21,607
2015............................................................ 34,801 3,522 38,323
-----------------------------------------------
Total....................................................... 117,566 23,936 141,502
FY 2013-FY 2015 Annual Average.......................... 21,046 3,685 24,731
----------------------------------------------------------------------------------------------------------------
Source: Email correspondence with the U.S. Department of State's Bureau of Consular Affairs on December 2, 2015.

Population generally addressed in the 2013 Rule (certain immediate
relatives of U.S. citizens).
Population impacted by this rule, excluding immediate relatives.

---------------------------------------------------------------------------

\75\ Population generally addressed in the 2013 Rule (certain
immediate relavies of U.S. citizens).
\76\ Population Impacted by this rule, excluding immediate
relatives.

Table 4--Number of Immigrant Visa Ineligibility Findings Due to Unlawful Presence and any Other Ground of
Inadmissibility (or Visa Ineligibility)
----------------------------------------------------------------------------------------------------------------
Visa category type
--------------------------------
Fiscal year Immediate All other Total
relatives immigrants
----------------------------------------------------------------------------------------------------------------
2010............................................................ 4,655 984 5,639
2011............................................................ 4,679 1,768 6,447
2012............................................................ 5,436 1,763 7,199
2013............................................................ 3,891 1,471 5,362
2014............................................................ 3,298 1,113 4,411
2015............................................................ 4,323 1,087 5,410
-----------------------------------------------
Total....................................................... 26,282 8,186 34,468
FY 2013-FY 2015 Annual Average.......................... 3,837 1,224 5,061
----------------------------------------------------------------------------------------------------------------
Source: Email correspondence with the U.S. Department of State's Bureau of Consular Affairs on December 2, 2015.

In the 2015 Proposed Rule, DHS based the demand for Form I-601A
applications with and without the rule on the FY 2013 to FY 2014
average ratio of Form I-601A receipts to immigrant visa ineligibility
findings based on unlawful presence inadmissibility grounds. Since the
publication of the proposed rule, DOS provided DHS with revised data.
Based on a review of the revised DOS ineligibility data, DHS has
determined that using a year-specific ratio of receipts to
ineligibility findings is no longer the best option to predict future
provisional waiver demand because of recent changes in Form I-601A
filing trends. DOS's new data suggests that the majority of immediate
relatives found ineligible for an immigrant visa by DOS based on
unlawful presence inadmissibility grounds in one fiscal year have filed
provisional unlawful presence waivers of inadmissibility prior to DOS's
immigrant visa ineligibility finding, though the dates of these
separate events is unknown. Because the time lag between such filings
and ineligibility findings is unknown, making same-year comparisons
between these data could result in erroneous conclusions. As such, DHS
believes it is most appropriate to estimate the future demand for
provisional waivers in the absence of this rule using historical Form
I-601A filing data.
In the absence of this rule, DHS projects that Form I-601A receipts
from immediate relative immigrants would increase from their three-year
average of 41,612 (see Table 2) 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.\77\ Under this
method, USCIS would receive a projected 478,000 provisional waiver
applications across 10 years of analysis in the absence of this rule,
as shown in Table 5.
---------------------------------------------------------------------------

\77\ Calculated by comparing the estimated unauthorized
immigrant population living in the United States in 2000 (8,500,000)
to 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,
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.

[[Page 50268]]

Table 5--Projected Number of Immediate Relative Form I-601A Applications
in the Absence of Rule (Population Addressed in 2013 Rule)
------------------------------------------------------------------------
Form I-601A
Receipts--
Fiscal year Immediate
Relatives \78\
------------------------------------------------------------------------
Year 1.................................................. 42,652
Year 2.................................................. 43,719
Year 3.................................................. 44,812
Year 4.................................................. 45,932
Year 5.................................................. 47,080
Year 6.................................................. 48,257
Year 7.................................................. 49,464
Year 8.................................................. 50,700
Year 9.................................................. 51,968
Year 10................................................. 53,267
---------------
Total............................................... 477,851
------------------------------------------------------------------------
Notes: The yearly estimates in this table were originally calculated
using unrounded figures. Thereafter, all yearly estimates were
simultaneously rounded for tabular presentation.

5. Population Affected by Rule
---------------------------------------------------------------------------

\78\ Estimated number of provisional waiver applications from
the eligible population of immediate relatives. These applications
do not necessarily correspond to waiver approvals.
---------------------------------------------------------------------------

DHS does not believe this rule will induce any new demand above the
status quo for filing petitions or immigrant visa applications for this
expanded group of individuals. DHS bases this assumption on the fact
that most of the newly eligible visa categories to which this rule will
now apply (namely, family-sponsored, employment-based, diversity, and
certain special immigrant visa categories) are generally subject,
unlike the immediate relative category, to statutory visa issuance
limits and lengthy visa availability waits due to oversubscription.\79\
Even with this rule's elimination or modification of specific
provisional waiver ineligibility criteria currently in place, DHS does
not anticipate that a related rise in the demand for immigrant visas
for immediate relatives of U.S. citizens will occur given the low
historical share of applications denied for these reasons
(approximately 9 percent as mentioned earlier). In addition, because
immediate relative visas are readily available, immediate relatives who
were denied a provisional waiver previously have likely continued on
with the consular interview process to obtain LPR status.\80\
Therefore, DHS did not estimate that these immediate relatives would
reapply for a provisional waiver. Furthermore, there is no evidence
that the Secretary's November 2014 memorandum \81\ on the expansion of
the provisional waiver process spurred a significant increase in
filings of the Petition for Alien Relative (Form I-130) or Immigrant
Petition for Alien Worker (Form I-140).\82\ Thus, DHS does not expect
that this rule will increase the demand for the immigrant visa
categories to which it applies.
---------------------------------------------------------------------------

\79\ Family-sponsored immigrant visa applicants, who represent
nearly 97 percent of the ``all other immigrants'' population found
ineligible due to only unlawful presence inadmissibility grounds,
currently face visa oversubscription. This means that any new
family-sponsored visa applicants must wait in line for available
visas. Depending on the applicant's country of chargeability and
preference category, this wait could be many years. Source: U.S.
Department of State. ``Visa Bulletin: Immigrant Numbers for December
2015,'' IX (87), Nov. 2015. Available at http://travel.state.gov/content/dam/visas/Bulletins/visabulletin_December2015.pdf.
\80\ Immigrant visas for immediate relatives of U.S. citizens
are unlimited, so they are always available. See INA section
201(b)(2)(A)(i), 8 U.S.C. 1151(b)(2)(A)(i). This means that
immediate relatives do not have to wait in line for a visa number to
become available for them to immigrate. Sources: U.S. Citizenship
and Immigration Services. ``Visa Availability and Priority Dates.''
Available at http://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-and-priority-dates (last reviewed/
updated Nov. 5, 2015).
\81\ See Memorandum from Jeh Charles Johnson, Secretary, DHS, to
L[eacute]on Rodr[iacute]guez, Director, USCIS, 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.
\82\ Based on a DHS comparison of Form I-130 and Form I-140
filings during the three months immediately following the
Secretary's 2014 memorandum on the expansion of the provisional
waiver program and during those same three months in FY 2013 and FY
2014.
---------------------------------------------------------------------------

With this rule's implementation, the number of provisional waiver
applications is expected to increase from the figures listed in Table 5
as the provisional waiver eligibility criteria expands. This rule's
broadened group of qualifying relatives for the provisional waiver's
extreme hardship determination as well as its elimination or
modification of current provisional waiver ineligibility provisions
will allow some immediate relatives of U.S. citizens and LPRs to become
eligible for provisional waivers. All other immigrant visa applicants
\83\ who are present in the United States and who otherwise meet the
requirements of the provisional waiver process described in this final
rule will also become eligible for provisional waivers.
---------------------------------------------------------------------------

\83\ As previously mentioned, the phrase ``all other immigrant
visa applicants'' encompasses the following immigrant visa
categories: family-sponsored, employment-based, Diversity Visa, and
(certain) special immigrant visa applicants. Examples of family
relationships that fall under ``all other immigrant visa
applicants'' 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.
---------------------------------------------------------------------------

Immediate Relatives Affected by Rule
Some immediate relatives of U.S. citizens were denied provisional
waivers under the 2013 Rule because USCIS had ``reason to believe''
that they were subject to a ground of inadmissibility other than
unlawful presence. Others were denied because they were subject to a
final order. This rule eliminates denials based on the reason-to-
believe standard and modifies the ineligibility criteria related to
final orders, thus allowing additional immediate relatives to become
eligible for provisional waivers. As previously mentioned, Table 4
shows DOS's historical findings of immigrant visa ineligibility among
immediate relatives due to unlawful presence and any other ground for
denying visa issuance, such as being subject to a final order.\84\ DHS
believes that the population of immediate relatives found ineligible
for immigrant visas based on unlawful presence and any other ground of
inadmissibility shown in Table 4 best predicts the share of immediate
relatives affected by the elimination or modification of ineligibility
criteria in this rule, as the DOS figures presumably account for these
provisional waiver ineligibilities.\85\ According to the FY 2013 to FY
2015 annual average number of immediate relatives found ineligible for
visas based on unlawful presence and any other ground of
inadmissibility (and visa ineligibility) (3,837; see Table 4), and the
historical 2.5 percent growth in the unauthorized immigrant population,
DHS estimates that 3,933 immediate relatives will become eligible, and
consequently apply, for provisional waivers as a direct result of this
rule's expanded waiver eligibility during the rule's first year of
implementation (see Table 6).
---------------------------------------------------------------------------

\84\ Other grounds of inadmissibility barring visa eligibility
can be found in INA section 212(a), 8 U.S.C. 1182(a).
\85\ These ineligibility findings likely include the previously
discussed 9 percent of historical Form I-601A applicants denied for
the following reasons: an applicant's lack of a qualifying relative
for the waiver's extreme hardship determination; reason to believe
an applicant would be inadmissible based on grounds other than
unlawful presence at the time of the immigrant visa interview; DOS
initially acting before January 3, 2013 to schedule an applicant's
immigrant visa interview; and an applicant being subject to a final
order. However, due to data limitations, DHS does not know the exact
number of ineligibility findings that correspond to provisional
waiver denials.
---------------------------------------------------------------------------

Table 6 shows that over a 10-year period of analysis, USCIS will
receive approximately 44,000 provisional waiver applications from
immediate relatives now eligible for provisional waivers based on this
rule's elimination or modification of specific provisional

[[Page 50269]]

waiver ineligibility criteria. These figures reflect the assumption
that the population of individuals historically found ineligible for
immigrant visas based on unlawful presence and any other ground of
inadmissibility will apply for provisional waivers even though they may
still be inadmissible on another ground that would bar them from
receiving an immigrant visa. However, these figures do not account for
immediate relatives of U.S. citizens and LPRs who could become eligible
for provisional waivers through this rule's broadened group of
qualifying relatives for the provisional waiver's extreme hardship
determination and its elimination of DOS scheduling date requirements.
Due to data limitations, DHS cannot precisely measure the number of
individuals impacted by these amendments, though based on historical
denials, the number impacted will likely be small.\86\
---------------------------------------------------------------------------

\86\ Of the provisional waiver applications adjudicated from FY
2013 to FY 2015, USCIS denied less than 1,000 applications in total
based on an applicant's lack of a qualifying relative for the
waiver's extreme hardship determination and for DOS initially acting
before January 3, 2013 to schedule an applicant's immigrant visa
interview. Source: Email correspondence with USCIS' National
Benefits Center on October 7, 2015 and December 7, 2015.
---------------------------------------------------------------------------

Due to additional data limitations, DHS cannot determine the exact
number of immediate relatives eligible to apply for provisional waivers
under the 2013 Rule who either continued taking steps necessary to
obtain LPR status or who abandoned the immigrant visa process
altogether after being denied provisional waivers for the ineligibility
criteria eliminated or modified with this rule (e.g., DOS scheduling
date requirements). DHS assumes for the purpose of this analysis that
those immediate relatives who applied for provisional waivers prior to
this final rule but were denied for the criteria eliminated or modified
with this rule have continued taking the steps necessary to obtain LPR
status rather than delay their immigration process. These individuals
have likely sought waivers of the unlawful presence grounds of
inadmissibility through the Form I-601 waiver process as part of
obtaining their LPR status. For these reasons, DHS does not believe
this rule will affect certain immediate relatives of U.S. citizens
previously denied provisional waivers due to this rule's eliminated or
modified criteria, and thus does not consider these individuals in the
population affected by this rule. As such, Table 6 does not include
these individuals.

Table 6--Projected Number of Immediate Relative Form I-601A Applications
Resulting From Rule
------------------------------------------------------------------------
Form I-601A
Receipts--
immediate
relatives newly
Fiscal year eligible for
provisional
waiver under rule
\87\
------------------------------------------------------------------------
Year 1.............................................. 3,933
Year 2.............................................. 4,031
Year 3.............................................. 4,132
Year 4.............................................. 4,235
Year 5.............................................. 4,341
Year 6.............................................. 4,450
Year 7.............................................. 4,561
Year 8.............................................. 4,675
Year 9.............................................. 4,792
Year 10............................................. 4,912
-------------------
Total........................................... 44,062
------------------------------------------------------------------------
Notes: The yearly estimates in this table were originally calculated
using unrounded figures. Thereafter, all yearly estimates were
simultaneously rounded for tabular presentation.

All Other Immigrants Affected by Rule
---------------------------------------------------------------------------

\87\ Estimated number of provisional waiver applications from
the population of immediate relatives inadmissible due to unlawful
presence and any other immigrant visa inadmissibility ground. These
applications do not necessarily correspond to waiver approvals.
---------------------------------------------------------------------------

In addition to the population of immediate relatives illustrated in
Table 6, this rule will affect a portion of all other immigrant visa
applicants. To capture the population of all other immigrant visa
applicants (that is, those who are not immediate relative immigrant
visa applicants) that may file for a provisional waiver due to this
rule, DHS uses the following historical data: (1) DOS immigrant visa
ineligibility findings due to only unlawful presence inadmissibility
grounds (the population included in the 2015 Proposed Rule); (2) DOS
immigrant visa ineligibility findings due to unlawful presence and any
other inadmissibility ground (the population potentially now included
in this final rule); and (3) growth in the unauthorized immigrant
population. In particular, DHS applies the previously discussed 2.5
percent compound annual growth rate of unauthorized immigrants from
2000 to 2012 to the sum of the FY 2013 to FY 2015 annual averages of
all other immigrant visa ineligibility findings due to: (1) Only
unlawful presence inadmissibility grounds; and (2) unlawful presence
and any other inadmissibility ground, which equals 4,909 (see Table 3
and Table 4).\88\ For Year 1, DHS projects that Form I-601A
applications from the population of all other immigrants now eligible
for provisional waivers will measure approximately 5,032. For Years 2
through 10, applications are expected to range from 5,158 to 6,284 (see
Table 7).\89\ These figures partly reflect the assumption that the
population of individuals historically found ineligible for immigrant
visas based on unlawful presence and any other ground of
inadmissibility will apply for provisional waivers even though they may
still be inadmissible on another ground that would bar them from
receiving an immigrant visa.
---------------------------------------------------------------------------

\88\ Calculated as the FY 2013-FY 2015 average number of all
other immigrant visa ineligibility findings due to only unlawful
presence (3,685) plus the FY 2013-FY 2015 average number of all
other immigrant visa ineligibility findings due to unlawful presence
and any other ground of inadmissibility (1,224) = 4,909.
\89\ Year 1 figure calculated as the FY 2013-FY 2015 average
number of all other immigrant visa ineligibility findings due to:
(1) Only unlawful presence, and (2) unlawful presence and any other
ground of inadmissibility of 4,909 multiplied by the assumed 2.5
percent growth rate (that is, 1.025), which equals 5,032.

Table 7--Projected Number of All Other Immigrant Form I-601A
Applications Resulting From Rule
------------------------------------------------------------------------
Form I-601A
receipts-- all
Fiscal year other
immigrants
\90\
------------------------------------------------------------------------
Year 1.................................................. 5,032
Year 2.................................................. 5,158
Year 3.................................................. 5,286
Year 4.................................................. 5,419
Year 5.................................................. 5,554
Year 6.................................................. 5,693
Year 7.................................................. 5,835
Year 8.................................................. 5,981
Year 9.................................................. 6,131
Year 10................................................. 6,284
Total............................................... 56,373
------------------------------------------------------------------------
Notes: The yearly estimates in this table were originally calculated
using unrounded figures. Thereafter, all yearly estimates were
simultaneously rounded for tabular presentation.

Total Population Affected by Rule
---------------------------------------------------------------------------

\90\ Estimated number of provisional waiver applications from
the population of all other immigrants ineligible due to: (1) Only
unlawful presence; and (2) unlawful presence and any other ground of
inadmissibility. These applications do not necessarily correspond to
waiver approvals.
---------------------------------------------------------------------------

Table 8 outlines the entire population of immigrant visa applicants
potentially impacted by this rule, as measured by the sum of Form I-
601A receipts listed in Table 6 and Table 7. Across a 10-year period of
analysis, DHS estimates that the provisional waiver applications from
this rule's expanded population of individuals (including immediate
relatives of U.S. citizens and LPRs, and

[[Page 50270]]

family-sponsored, employment-based, Diversity Visa, and (certain)
special immigrant visa applicants) will be nearly 100,000. These
provisional waiver applications may ultimately result in waiver
approvals or denials. Note that Table 8 presents only the additional
Form I-601A filings that will occur as a result of this rule; it does
not account for the provisional waiver applications that DHS
anticipates will be filed in the absence of this rule by currently
eligible certain immediate relatives of U.S. citizens (see Table 5). As
stated earlier, the figures in Table 8 may underestimate the total Form
I-601A applications resulting from this rule because they do not
account for immediate relatives of U.S. citizens and LPRs who could
become eligible for provisional waivers through this rule's broadened
group of qualifying relatives for the provisional waiver's extreme
hardship determination and its elimination of DOS scheduling date
requirements. They could also overestimate the total Form I-601A
applications resulting from this rule because they are partly based on
the assumption that the population of individuals historically found
ineligible for immigrant visas based on unlawful presence and any other
ground of inadmissibility will apply for provisional waivers even
though they may still be inadmissible on another ground that would bar
them from receiving an immigrant visa.

Table 8--Total Form I-601A Applications Resulting From Rule
------------------------------------------------------------------------
Form I-601A
Fiscal year receipts
------------------------------------------------------------------------
Year 1.................................................. 8,965
Year 2.................................................. 9,189
Year 3.................................................. 9,418
Year 4.................................................. 9,654
Year 5.................................................. 9,895
Year 6.................................................. 10,143
Year 7.................................................. 10,396
Year 8.................................................. 10,656
Year 9.................................................. 10,923
Year 10................................................. 11,196
Total............................................... 100,435
------------------------------------------------------------------------
Notes: The yearly estimates in this table were originally calculated
using unrounded figures. Thereafter, all yearly estimates were
simultaneously rounded for tabular presentation.

All public comments about specific elements of the projections,
costs, or benefits of the rule are discussed earlier in the preamble.
6. Costs and Benefits
Costs
Individuals who are newly eligible to apply for a provisional
waiver strictly under this rule will bear the costs of this regulation.
Although the waiver expansion may require the Federal Government
(namely, DHS and USCIS) to expend additional resources on related
adjudication personnel, equipment (e.g., computers and telephones), and
occupancy demands, DHS expects these costs to be offset by the
additional fee revenue collected from the Form I-601A filing fee and
the biometric services fee. Currently, the filing fees for Form I-601A
and biometric services are $585 and $85, respectively.\91\ Accordingly,
DHS does not believe this rule will impose additional net costs on the
Federal Government.
---------------------------------------------------------------------------

\91\ Source of fee rates: U.S. Citizenship and Immigration
Services. ``I-601A, Application for Provisional Unlawful Presence
Waiver.'' Available at http://www.uscis.gov/i-601a (last reviewed/
updated Oct. 7, 2015). The Form I-601A filing fee and biometric
services fee are subject to change through the normal fee review
cycle and any subsequent rulemaking issued by USCIS/DHS. USCIS/DHS
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).
---------------------------------------------------------------------------

With the exception of applicants subject to final orders,\92\
eligible individuals must generally first complete Form I-601A and
submit it to USCIS with its current $585 filing fee and $85 biometric
services fee to receive a provisional waiver under this rule. 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.\93\ DHS calculates the Form I-601A application's
opportunity cost to individuals 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.\94\
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 individuals to complete Form I-601A ($15.89). DHS recognizes
that the individuals 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 individuals associated with completing this rule's
required application and biometrics collection. The cost for applicants
to initially file Form I-601A, including only the $585 filing fee and
opportunity cost, equals $600.89.
---------------------------------------------------------------------------

\92\ As previously stated, individuals subject to a final order
may now seek a provisional waiver only if they also request (and are
approved for) consent to reapply for admission under INA section
212(a)(9)(A)(iii), 8 U.S.C. 1182(a)(9)(A)(iii) via an Application
for Permission to Reapply for Admission into the United States After
Deportation or Removal (Form I-212). Filing and receiving approval
for a Form I-212 is a requirement already in place for individuals
subject to inadmissibility under INA section 212(a)(9)(A), 8 U.S.C.
1182(a)(9)(A), to be eligible for an immigrant visa. Thus, USCIS
does not include the cost to file Form I-212 to the applicable
population of provisional waiver applicants in this rule.
\93\ See 80 FR 16688 (Mar. 30, 2015) for the estimated Form I-
601A completion time burden.
\94\ Federal minimum wage information source: U.S. Department of
Labor, Wage and Hour Division. ``Wages- Minimum Wage.'' Available at
http://www.dol.gov/dol/topic/wages/minimumwage.htm (last accessed
Dec. 7, 2015). Employer benefits adjustment information source: U.S.
Department of Labor, Bureau of Labor Statistics. ``Economic News
Release: Employer Costs for Employee Compensation- September 2015,
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 2015- All
Workers.'' Dec. 9, 2015. Available at http://www.bls.gov/schedule/archives/ecec_nr.htm#current.
---------------------------------------------------------------------------

After USCIS receives an applicant's completed Form I-601A and its
filing and biometric services fees, the agency sends the applicant 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 will incur the following costs to comply
with the provisional waiver's biometrics submission requirement: (1)
The opportunity cost of traveling to an ASC, (2) the opportunity cost
of submitting his or her biometrics, and (3) the mileage cost of
traveling to an ASC. While travel times and distances to an ASC 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 applicant 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.\95\ By applying the
$10.59 hourly time value for individuals to the total biometrics-
related time burden of 3.67 hours, DHS finds that the opportunity cost
for a provisional waiver applicant to travel to and from an ASC, and to
submit biometrics, will total $38.87.\96\ In addition to the
opportunity cost of providing biometrics, provisional waiver applicants
will experience travel costs related to biometrics collection. The cost
of such travel will equal $28.75 per trip, based on the assumed 50-mile

[[Page 50271]]

roundtrip distance to an ASC and the General Services Administration's
travel rate of $0.575 per mile.\97\ DHS assumes that each applicant
will travel independently to an ASC to submit his or her biometrics,
meaning that this rule will impose a time cost on each provisional
waiver applicant. Adding the fee, opportunity, and travel costs of
biometrics collection together, DHS estimates that the provisional
waiver's requirement to submit biometrics will cost a total of $152.62
per Form I-601A filing.
---------------------------------------------------------------------------

\95\ See 80 FR 16688 (Mar. 30, 2015) for Form I-601A biometrics
collection time burden.
\96\ 3.67 hours multiplied by $10.59 per hour equals $38.87.
\97\ 50 miles multiplied by $0.575 per mile equals $28.75. See
79 FR 78437 (Dec. 30, 2014) for the General Services
Administration's mileage rate.
---------------------------------------------------------------------------

Accounting for all of the fee, time, and travel costs to comply
with the provisional waiver requirements, DHS finds that each Form I-
601A filing will cost an applicant $753.51. Table 9 shows that the
overall cost of this rule to the expanded population of provisional
waiver applicants will measure $75.7 million (undiscounted) over the
10-year period of analysis. DHS calculates this rule's total cost to
applicants by multiplying the individual cost of completing the
provisional waiver application requirements ($753.51) by the number of
newly eligible individuals projected to apply for provisional waivers
each year following the implementation of this rule (see Table 8). In
present value terms, this rule will cost newly eligible waiver
applicants $52.4 million to $64.2 million across a 10-year period at 7
percent and 3 percent discount rates, respectively (see Table 9).
Because this rule will not generate any net costs to the Federal
Government (as discussed previously), these costs to applicants also
reflect the total cost of this rule. Depending on the population of
individuals who apply for provisional waivers beyond the projections
shown in Table 8, the costs of this rule may be over- or
underestimated.

Table 9--Total Cost of Rule to Applicants/Total Cost of Rule
------------------------------------------------------------------------
Total waiver
cost to
Fiscal year applicants/
total cost of
rule
------------------------------------------------------------------------
Year 1.................................................. $6,755,217
Year 2.................................................. 6,924,003
Year 3.................................................. 7,096,557
Year 4.................................................. 7,274,386
Year 5.................................................. 7,455,981
Year 6.................................................. 7,642,852
Year 7.................................................. 7,833,490
Year 8.................................................. 8,029,403
Year 9.................................................. 8,230,590
Year 10................................................. 8,436,298
---------------
10-Year Total: Undiscounted......................... 75,678,777
---------------
10-Year Total: Present Value, Discounted at 3 64,168,205
percent............................................
---------------
10-Year Total: Present Value, Discounted at 7 52,429,216
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.

Benefits
The benefits of this rule are largely the result of streamlining
the immigrant visa process for an expanded population of individuals
who are inadmissible to the United States due to unlawful presence.
This rule will provide applicants seeking provisional waivers and their
family members advance notice of USCIS' decision on their provisional
waiver application prior to leaving the United States for their
immigrant visa interviews abroad, offering many individuals the
certainty of knowing they have been provisionally approved for a waiver
of certain unlawful presence grounds of inadmissibility before
departing from the United States. For those newly eligible individuals
who receive a provisional waiver through this rule and their U.S.
citizen or LPR family members, this rule's primary benefits are its
reduced separation time among family members during 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 process, the provisional waiver process allows
individuals to file a provisional waiver application while in the
United States and receive a notification of USCIS' decision on their
provisional waiver application before departing for DOS consular
processing of their immigrant visa applications. Although DHS cannot
estimate with precision the exact amount of separation time families
will save through this rule, DHS estimates that some newly eligible
individuals 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.\98\ 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 immigrant
relatives while they remain outside of the country. Because of data
limitations, however, DHS cannot predict the exact financial impact of
this change.
---------------------------------------------------------------------------

\98\ The average adjudication time of Form I-601 waivers is
currently over five months. Source: U.S. Citizenship and Immigration
Services. ``USCIS Processing Time Information for the Nebraska
Service Center-Form I-601.'' Available at https://egov.uscis.gov/cris/processTimesDisplayInit.do (last updated Feb. 11, 2016).
---------------------------------------------------------------------------

Due to the unique nature of the Diversity Visa program, individuals
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 others. Although an individual 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 rule,
Diversity Visa selectees and their derivatives who wish to use the
provisional waiver process may file a waiver application before knowing
whether their immigrant visa will ultimately be available to them. For
those 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.\99\ 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 will incur the costs but not obtain the benefits associated
with a provisional waiver.
---------------------------------------------------------------------------

\99\ There is a statutory maximum of 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.
---------------------------------------------------------------------------

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. As previously

[[Page 50272]]

described in the 2013 Rule, the provisional waiver process allows USCIS
to communicate to DOS the status of the waiver application prior to an
applicant's immigrant visa interview abroad. Such early communication
eliminates the current need to transfer cases repeatedly between USCIS
and DOS when adjudicating an immigrant visa application and Form I-
601.\100\ Through the provisional waiver process, DOS receives advance
notification from USCIS of the discretionary decision to provisionally
waive certain unlawful presence inadmissibility bars, allowing for
better allocation of valuable agency resources like time, storage
space, and human capital.
---------------------------------------------------------------------------

\100\ See 78 FR 536 (Jan. 3, 2013).
---------------------------------------------------------------------------

D. Executive Order 13132

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

E. Executive Order 12988 Civil Justice Reform

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

F. Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995 (PRA), all Departments
are required to submit to the Office of Management and Budget (OMB),
for review and approval, any reporting and recordkeeping requirements
inherent in a rule. See 44 U.S.C. 3507. This final rule requires that
an applicant seeking a provisional waiver complete an Application for
Provisional Unlawful Presence Waiver, Form I-601A, (OMB Control Number
1615-0123). This form is considered an information collection and is
covered under the PRA. USCIS is currently seeking OMB approval of
revisions that this final rule is causing to this information
collection instrument. DHS specifically requested public comments on
the proposed changes to the Application for Provisional Unlawful
Presence Waiver, Form I-601A, and the form instructions in the proposed
rule in accordance with 5 CFR 1320.11(a). OMB reviewed the request
filed in connection with the proposed rule and also filed comments in
accordance with 5 CFR 1320.11(c).
1. Comments on the Information Collection
DHS received several comments from the public directly related to
the revised form and its instructions, and, in accordance with 5 CFR
1320.11(f), DHS has considered the comments, provided detailed
responses to the comments on the form, and explained any modifications
it has made in its submission to OMB. The comments and responses are
summarized below.
a. The General Need for a Standardized Application Form
One commenter requested that USCIS adjudicate provisional waiver
requests without requiring use of a specific form. The commenter
believed requiring the completion of a standardized form effectively
requires applicants to retain an immigration attorney, who may exploit
them.
DHS has not accepted the suggestion. USCIS forms are generally
designed for use by the public in a manner that standardizes the
collection of necessary information and streamlines the adjudication of
immigration benefits, which benefits both USCIS and applicants. Lack of
a standardized information collection document, as well as the
acceptance of ad hoc requests, could cause confusion and processing
delays that adversely impact both USCIS and applicants. Standardized
intake methods and forms help USCIS streamline processing requirements
and minimize its costs, thereby moderating the fees it must charge for
immigration benefit requests.
b. Form I-601A, Information About Your Immigrant Visa Petition or Your
Immigrant Visa Case
DHS received several suggestions for improving the section of the
form collecting information about the applicant's immigrant visa
petition. Two commenters asked USCIS to include a section for
applicants on Form I-601 \101\ to indicate the name of the employer,
sponsor, or petitioner. One of those commenters requested that the form
include a section for applicants to submit information about approved
Immigration Petitions for Alien Worker, Forms I-140, particularly for
beneficiaries under the employment-based third preference (EB-3)
category.
---------------------------------------------------------------------------

\101\ Both commenters referred to Form I-601 rather than Form I-
601A.
---------------------------------------------------------------------------

DHS will not adopt this suggestion because it appears to be related
to Form I-601 and not Form I-601A, the form used for this rule. Form I-
601A already includes questions about the name of the petitioning
employer or sponsor. See Part 3, Information About Your Immigrant Visa
Petition and Your Immigrant Visa Case, Item Numbers 3 through 6 of Form
I-601A.
Two commenters wanted to ensure that derivative spouses of
principal beneficiaries are eligible for the provisional waiver. They
requested that USCIS specifically ask whether the individual is filing
this application based on an approved Form I-140 petition as a
derivative spouse of the primary beneficiary and to provide the USCIS
receipt number for the Form I-140 petition.
DHS agrees with the need to collect additional information, as
suggested by the commenters, in light of this final rule's extension of
eligibility for the provisional waiver to spouses and children who
accompany or follow to join principal immigrants. DHS has added
questions to Form I-601A about derivative spouses or children that
should address the concern raised by the commenters.
c. Form I-601A, Date of Entry and Place or Port of Entry
One commenter suggested that Form I-601A applicants should be
permitted to use approximate dates and places of entry when filling out
the form, rather than only specific dates or places of entry. The
commenter reasoned that it may be difficult for some applicants,
especially those who entered at a young age or without lawful status,
to specify an exact entry date or place.
Consistent with these comments, DHS has revised Part 1 of Form I-
601A to permit applicants to provide approximate dates and places of
entry, if necessary. Specifically, DHS added the phrase ``on or about''
to ``Date of Entry (mm/dd/yyyy)'' and ``(actual or approximate)'' after
``Place or Port-of-Entry (City or Town).''
d. Form I-601A, and Instructions, Certain Inadmissibility and Criminal
History Issues
One commenter requested that USCIS should not require Form I-601A
applicants to provide all related court dispositions regarding criminal
history if the disclosure of such court dispositions is prohibited by
state law. The commenter was concerned that

[[Page 50273]]

such a requirement would effectively ask applicants to violate state
confidentiality laws or request records that may be impossible to
obtain.
DHS did not adopt this suggestion. DHS does not believe that an
individual's request for his or her own court dispositions, and the
subsequent disclosure of that information to USCIS, would violate
confidentiality laws. Although state confidentiality laws may make it
improper for a clerk of court to release information about a case to a
third party, such laws do not prohibit the subjects of those
proceedings from obtaining information about themselves.\102\ USCIS may
request any evidence relevant to the adjudication of an immigration
benefit, including court records, when needed to assess the applicant's
eligibility for the benefit. USCIS often requires court records to
assess an applicant's eligibility for a provisional waiver, as well as
to determine whether the applicant merits the waiver as a matter of
discretion.
---------------------------------------------------------------------------

\102\ For example, California state law specifies that
individuals can obtain a copy of their own case files and can
subsequently disclose such records freely. See Cal. Welf. & Inst.
Code Sec. 827(a)(1)(C) and (5).
---------------------------------------------------------------------------

e. Form I-601A, Statement From Applicant
A commenter suggested that USCIS add questions related to hardship
that would allow officers to quickly determine whether a threshold
level of extreme hardship has been demonstrated. The commenter cited
the Application for Suspension of Deportation or Special Rule
Cancellation of Removal, Form I-881, as an example of a form that poses
specific questions related to the establishment of extreme hardship.
DHS has not accepted this suggestion. Although Form I-881 includes
questions relating to potential hardship, that form--unlike the
provisional waiver application (and the statutory inadmissibility
waiver grounds upon which it is based)--is used solely to adjudicate
relief under NACARA, and thus utilizes questions generally tracking
pertinent regulations outlining hardship factors that may be considered
under the NACARA program. See 8 CFR 240.64; 8 CFR 1240.58(b). Because
similar regulations do not exist in the provisional waiver context, DHS
does not believe that adding specific hardship questions to Form I-601A
is appropriate. Among other things, such questions may be understood as
setting the contours of the extreme hardship determination in the
provisional waiver context, which may unintentionally lead applicants
to restrict the types of evidence they submit to establish extreme
hardship. Moreover, DHS notes that USCIS does provide, in the relevant
form instructions, a list of non-exclusive factors that may be
considered in making extreme hardship determinations. See Instructions
to Form I-601 and Form I-601A.
f. Form I-601A Instructions, Criminal History Issues
One commenter suggested clarifications to the Form I-601A
instructions regarding documentation of criminal history in two
scenarios: those involving brief detentions and those where criminal
records do not exist. First, the commenter suggested a change to the
instructions to clarify that the relevant documentation requirements do
not apply to an applicant unless he or she has been arrested for, or
charged with, a criminal offense (i.e., not individuals who were simply
stopped or questioned by law enforcement authorities). Second, the
commenter suggested a change to the instructions to clarify that an
applicant may submit documents from a relevant court to show the lack
of criminal charge or prosecution. To accomplish these two suggestions,
the commenter recommended amending the instructions by inserting the
following underlined text (and deleting the following text that has
been struck through) in the instruction for Item Number 31: ``For Item
Number 31, if you were arrested but not charged with any crime or
offense, provide a statement or other documentation from the arresting
authority, or prosecutor's office, or court, if available, to show that
you were not charged with any crime or offense.''
In response to these suggestions, DHS has inserted the words
``arrested but'' and ``or court'' into the relevant instruction as
suggested by the commenter. DHS agrees that the insertion of this
language would provide additional clarity to applicants. DHS, however,
did not add the words ``if available'' as suggested by the commenter,
because USCIS believes it is self-evident that documents cannot be
provided if they are not available. In this final rule, USCIS has
provided applicants with various ways to prove the absence of a
criminal conviction without necessarily specifying or limiting the
types of documents USCIS will consider.
g. Form I-601A Instructions, Purpose of Form I-601A
A commenter suggested adding language to the Form I-601A
instructions clarifying the categories of individuals who may be
eligible to apply for provisional waivers under this rule.
Specifically, the commenter suggested adding the following underlined
text to ensure that certain individuals are eligible to apply for
provisional waivers: ``Certain immigrant visa applicants who are
relatives of U.S. citizen or Lawful Permanent Residents (LPRs); family-
sponsored immigrants; employment-based immigrants; special immigrants;
and participants in the Diversity Visa Program may use this application
to request a provisional waiver of the unlawful presence grounds.''
DHS has not adopted this suggestion. DHS believes the pre-existing
language accurately captures those who have the requisite family
relationships to apply for provisional waivers, including those who
have become newly eligible to apply under this rulemaking. DHS believes
the additional language suggested by the commenter could be read to
imply that an applicant is not required to have the requisite
relationship with a U.S. citizen or LPR in order to apply for a
provisional waiver. DHS has thus not amended this portion of the Form
I-601A instructions.
h. Form I-601A Instructions, Who May File
One commenter suggested that DHS add language to the Form I-601A
instructions stating that individuals who are not immediate relatives
and who filed more than one Form I-601A application are still eligible
to file a subsequent Form I-601A application even if DOS acted, before
the effective date of this rule, to schedule their first immigrant visa
interview.
DHS has not adopted this suggestion. As noted previously, this
final rule eliminates the regulatory provisions that make individuals
ineligible for provisional waivers depending on the date on which DOS
initially acted to schedule their immigrant visa interviews. Therefore,
the commenter's suggested amendment is now unnecessary.
i. Form I-601A Instructions, Can I file other forms with Form I-601A?
One commenter suggested adding text to the Form I-601A instructions
indicating that an applicant may request electronic notification of
USCIS acceptance of the filing of Form I-601A by filing Form G-1145, E-
Notification of Application/Petition Acceptance, along with Form I-
601A.
DHS adopted this suggestion.

[[Page 50274]]

j. Form I-601A Instructions, General Instructions
One commenter suggested changes to the Form I-601A instructions to
make it easier for individuals with a physical or developmental
disability or mental impairment to request waivers. Specifically, the
commenter recommended replacing the portion of the Form I-601A
instructions concerning the ability of a legal guardian to sign for a
mentally incompetent individual with the following: ``A designated
representative may sign if the requestor is unable to sign due to a
physical or developmental disability or mental impairment.''
DHS has not adopted this suggestion, as the Department believes
that current regulations are sufficient to address the commenter's
concerns. First, current regulations provide that a legal guardian may
sign for an individual who is mentally incompetent. See 8 CFR
103.2(a)(2). Second, even if no legal guardianship has been
established, applicants with disabilities have various options for
affecting signatures. Under USCIS policy, a valid signature does not
need to be legible or in English, and it may be abbreviated provided it
is consistent with the manner in which the individual normally signs
his or her name. An individual who is unable to write in any language
may place an ``X'' or similar mark in lieu of a signature. DHS believes
existing regulations already address the commenters concern and did not
adopt the suggestion.
k. Form I-601A Instructions, General Instructions
One commenter requested that DHS include an example of a
translation certification in the Form I-601A instructions.
DHS did not adopt this suggestion. Regulations require that any
document containing foreign language submitted to USCIS must be
accompanied by (1) a full English language translation that the
translator has certified as complete and accurate, and (2) the
translator's certification that he or she is competent to translate
from the foreign language into English. See 8 CFR 103.2(b)(3). DHS
believes the regulation is sufficiently clear, and the Department is
worried that providing an example translation certification will be
understood by applicants as a required form, thus effectively limiting
options for obtaining translation services.
l. Form I-601A Instructions, Specific Instructions
One commenter suggested providing applicants with additional
instructions to help clarify when individuals are deemed to be admitted
or to have entered without inspection. Specifically, the commenter
suggested that DHS replace the term ``EWI'' (entry without inspection)
with ``no lawful status'' in the Form I-601A instructions and to add a
note to the instructions indicating that applicants without lawful
status who entered at a port of entry may have nevertheless entered
pursuant to inspection and admission. The commenter, citing to the
decision of the Board of Immigration Appeals at Matter of Quilantan, 25
I. & N. Dec. 285 (BIA 2010), stated that an individual without lawful
status who is nevertheless permitted to enter the United States at a
port of entry may be ``admitted,'' even if the inspection at the port
did not comply with substantive legal requirements and there is no
record of the individual having been admitted in any particular status.
DHS has not adopted these suggestions. DHS believes that the form
instructions are sufficiently clear for applicants to appropriately
answer all relevant questions. DHS does not believe it is necessary to
add reminders or warnings on the issue raised by the commenter, as DHS
does not believe that an applicant will erroneously state that he or
she is present without admission or parole.
m. Form I-601A Instructions, Immigration or Criminal History
One commenter requested that the Form I-601A instructions be
amended to provide information about grants of voluntary departure and
how such grants affect the provisional waiver process. Specifically,
the commenter requested that the instructions include a provision
specifying that an immigration judge may grant voluntary departure, or
dismiss or terminate removal proceedings, prior to the applicant
leaving the United States for immigrant visa processing.
DHS has not adopted this suggestion, as an individual granted
voluntary departure is not eligible for a provisional waiver. USCIS,
however, modified Form I-601A by including a question asking whether
the applicant has been granted voluntary departure. USCIS also made
corresponding amendments in the form instructions.
n. Form I-601A Instructions, Penalties
One commenter asserted that USCIS established an overly broad
standard for denying Form I-601A applications, as well as other
immigration benefits, due to the submission of false documents with
such applications. To address this concern, the commenter suggested
that the Form I-601A instructions be amended to indicate that
applications will be denied only if the applicants submit
``materially'' false documents.
DHS has not adopted the commenter's suggestion, as there are
existing statutory requirements regarding the use of false documents.
DHS, however, has modified the relevant language in the form
instructions to more closely match the language of 8 U.S.C. 1324c and
18 U.S.C. 1001(a), which relate to civil and criminal penalties for the
use of false documents to defraud the U.S. Government or obtain an
immigration benefit. The new language reads, ``If you knowingly and
willfully falsify or conceal a material fact or submit a false,
altered, forged, or counterfeited writing or document with your Form I-
601A, we will deny your Form I-601A and may deny any other immigration
benefit.''
2. Changes to the Information Collection (OMB Control No. 1615-0123)
DHS has revised the Form I-601A as indicated in the preceding
responses. The revised form and instructions are available for review
at http://www.reginfo.gov/public/do/PRAMain under OMB control number
1615-0123, or at https://www.regulations.gov/#!home in docket USCIS-
2012-0003.
As a result of the final rule's elimination or modification of
certain provisional waiver eligibility criteria, and a result of newer
and better data and historical source data revisions,\103\ DHS has
updated the supporting statement for the Form I-601A. The update
reflects changes in the respondent estimates that USCIS projected in
the 2015 Proposed Rule. In the 2015 Proposed Rule, DHS estimated that
approximately 10,258 new respondents would file applications for
provisional waivers because of the changes proposed by the rule. DHS
also estimated that 42,707 individuals currently eligible for
provisional waivers would file Form I-601 applications in the future.
DHS has revised these estimates, projecting that approximately 9,191
new respondents will file applications for provisional waivers because
of the changes in this final rule and 43,728 individuals currently
eligible for provisional waivers will file Form I-601 applications in
the future. With these changes in the number of Form I-601A
applications, the estimate for the total number of respondents has been

[[Page 50275]]

updated from 52,965 to 52,918, which represents a decrease of 47
respondents. The current burden hour inventory approved for this form
is 141,417 hours, and the requested new total hour burden is 141,292
hours. This revision reflects an increase (47,841 annual burden hours)
in the annual burden hours previously reported for this information
collection.
---------------------------------------------------------------------------

\103\ DOS determined that its rules used to collect the
inadmissibility data included in the 2015 Proposed Rule resulted in
errors. DOS has since revised its rules to correct the errors.
---------------------------------------------------------------------------

Overview of this information collection (OMB Control Number 1615-
0123):
(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 are: (a) Immigrant visa applicants, including (1)
immediate relatives, (2) individuals seeking to immigrate under a
family-sponsored, employment-based, or special immigrant visa category,
or (3) Diversity Visa selectees and derivatives; and (b) applying from
within the United States for a provisional waiver under INA section
212(a)(9)(B)(v), 8 U.S.C. 1182(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
52,918 and the estimated hour burden per response is 1.5 hours; and
52,918 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 141,292 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 $1,496,282.

G. Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996, Public Law 104-121 (March 29, 1996), requires Federal agencies to
consider the potential impact of regulations on small businesses, small
governmental jurisdictions, and small organizations during the
development of their rules. The term ``small entities'' comprises small
businesses, not-for-profit organizations that are independently owned
and operated and are not dominant in their fields, and governmental
jurisdictions with populations of less than 50,000.
DHS has reviewed this regulation in accordance with the Regulatory
Flexibility Act and certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
The factual basis for this determination is that this rule directly
regulates individuals, who are not, for purposes of the Regulatory
Flexibility Act, within the definition of small entities established by
5 U.S.C. 601(6). DHS received no public comments challenging this
certification.

List of Subjects

Accordingly, DHS adopts the regulatory amendments proposed on July
22, 2015. In addition, DHS modifies certain provisions based on
comments received in response to the proposed rule so that chapter I of
title 8 of the Code of Federal Regulations reads as follows:

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.

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:
0
a. In paragraphs (a)(2) and (3), (b)(6) and (7), and (b)(9) 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, Pub. L. 110-229, 122 Stat. 754, 854.
0
4. Section 212.7 is amended by:
0
a. Removing the paragraph (a) subject heading; and
0
b. Revising paragraph (e).
The revision reads as follows:

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.
(1) Jurisdiction. USCIS has exclusive jurisdiction to grant a
provisional unlawful presence waiver under this paragraph (e). An alien
applying for a provisional unlawful presence waiver must file with
USCIS the form designated by USCIS, with the fees prescribed in 8 CFR
103.7(b), and in accordance with the form instructions.
(2) Provisional unlawful presence waiver; in general. (i) USCIS may
adjudicate applications for a provisional unlawful presence waiver of
inadmissibility based on section 212(a)(9)(B)(v) of the Act filed by
eligible aliens described in paragraph (e)(3) of this section. USCIS
will only approve such provisional unlawful presence waiver
applications in accordance with the conditions outlined in paragraph
(e) of this section. Consistent with section 212(a)(9)(B)(v) of the
Act, the decision whether to approve a provisional unlawful presence
waiver application is discretionary. A pending or approved provisional
unlawful presence waiver does not constitute a grant of a lawful
immigration status or a period of stay authorized by the Secretary.
(ii) A pending or an approved provisional unlawful presence waiver
does not support the filing of any application for interim immigration
benefits, such as employment authorization or an advance parole
document. Any application for an advance parole document or employment
authorization that is submitted in connection with a provisional
unlawful presence waiver application will be rejected.

[[Page 50276]]

(3) Eligible aliens. Except as provided in paragraph (e)(4) of this
section, an alien may be eligible to apply for and receive a
provisional unlawful presence waiver for the grounds of inadmissibility
under section 212(a)(9)(B)(i)(I) or (II) of the Act if he or she meets
the requirements in this paragraph. An alien may be eligible to apply
for and receive a waiver if he or she:
(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) Ineligible aliens. Notwithstanding paragraph (e)(3) of this
section, an alien is ineligible for a provisional unlawful presence
waiver under paragraph (e) of this section if:
(i) The alien is under the age of 17;
(ii) 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;
(iii) The alien is in removal proceedings, in which no final order
has been entered, 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;
(iv) The alien is subject to an administratively final order of
removal, deportation, or exclusion under any provision of law
(including an in absentia order under section 240(b)(5) of the Act),
unless the alien has already filed and USCIS has already granted,
before the alien applies for a provisional unlawful presence waiver
under 8 CFR 212.7(e), an application for consent to reapply for
admission under section 212(a)(9)(A)(iii) of the Act and 8 CFR
212.2(j);
(v) CBP or ICE, after service of notice under 8 CFR 241.8, has
reinstated a prior order of removal under section 241(a)(5) of the Act,
either before the filing of the provisional unlawful presence waiver
application or while the provisional unlawful presence waiver
application is pending; or
(vi) The alien has a pending application with USCIS for lawful
permanent resident status.
(5) Filing. (i) An alien must file 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 on the form
designated by USCIS, in accordance with the form instructions, with the
fee prescribed in 8 CFR 103.7(b), and with the evidence required by the
form instructions.
(ii) An application for a provisional unlawful presence waiver will
be rejected and the fee and package returned to the alien if the alien:
(A) Fails to pay the required filing fee or correct filing fee for
the provisional unlawful presence waiver application;
(B) Fails to sign the provisional unlawful presence waiver
application;
(C) Fails to provide his or her family name, domestic home address,
and date of birth;
(D) Is under the age of 17;
(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.
(6) Biometrics. (i) All aliens who apply for a provisional unlawful
presence waiver under this section will be required to provide
biometrics in accordance with 8 CFR 103.16 and 103.17, as specified on
the form instructions.
(ii) Failure to appear for 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 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. (i) 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.
(ii) Denial of an application for a provisional unlawful presence
waiver is not a final agency action for purposes of

[[Page 50277]]

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).
(11) Appeals and motions to reopen. There is no administrative
appeal from a denial of a request for a provisional unlawful presence
waiver under this section. The alien may not file, pursuant to 8 CFR
103.5, a motion to reopen or reconsider a denial of a provisional
unlawful presence waiver application under this section.
(12) Approval and conditions. A provisional unlawful presence
waiver granted under this section:
(i) Does not take effect unless, and until, the alien who applied
for and obtained the provisional unlawful presence waiver:
(A) Departs from the United States;
(B) Appears for an immigrant visa interview at a U.S. Embassy or
consulate; and
(C) Is determined to be otherwise eligible for an immigrant visa by
the Department of State in light of the approved provisional unlawful
presence waiver.
(ii) Waives, upon satisfaction of the conditions described in
paragraph (e)(12)(i), 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;
(iii) Does not waive any ground of inadmissibility other than, upon
satisfaction of the conditions described in paragraph (e)(12)(i), the
grounds of inadmissibility under section 212(a)(9)(B)(i)(I) or (II) of
the Act.
(13) Validity. Until the provisional unlawful presence waiver takes
full effect as provided in paragraph (e)(12) of this section, USCIS may
reopen and reconsider its decision at any time. Once a provisional
unlawful presence waiver takes full effect as defined in paragraph
(e)(12) of this section, the period of unlawful presence for which the
provisional unlawful presence waiver is granted is waived indefinitely,
in accordance with and subject to paragraph (a)(4) of this section.
(14) Automatic revocation. The approval of a provisional unlawful
presence waiver is revoked automatically if:
(i) The Department of State denies the immigrant visa application
after completion of the immigrant visa interview based on a finding
that the alien is ineligible to receive an immigrant visa for any
reason other than inadmissibility under section 212(a)(9)(B)(i)(I) or
(II) of the Act. This automatic revocation does not prevent the alien
from applying for a waiver of inadmissibility for unlawful presence
under section 212(a)(9)(B)(v) of the Act and 8 CFR 212.7(a) or for any
other relief from inadmissibility on any other ground for which a
waiver is available and for which the alien may be eligible;
(ii) The immigrant visa petition approval associated with the
provisional unlawful presence waiver is at any time revoked, withdrawn,
or rendered invalid but not otherwise reinstated for humanitarian
reasons or converted to a widow or widower petition;
(iii) The immigrant visa registration is terminated in accordance
with section 203(g) of the Act, and has not been reinstated in
accordance with section 203(g) of the Act; or
(iv) The alien enters or attempts to reenter the United States
without inspection and admission or parole at any time after the alien
files the provisional unlawful presence waiver application and before
the approval of the provisional unlawful presence waiver takes effect
in accordance with paragraph (e)(12) of this section.

Jeh Charles Johnson,
Secretary.
[FR Doc. 2016-17934 Filed 7-28-16; 8:45 am]
BILLING CODE 9111-97-P