[Federal Register Volume 85, Number 248 (Monday, December 28, 2020)]
[Notices]
[Pages 84362-84365]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28475]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Citizenship and Immigration Services
[OMB Control Number 1615-0013]
Agency Information Collection Activities; Revision, of a
Currently Approved Collection: Application for Travel Document. Removal
of Instructions Regarding the Haitian Family Reunification Program and
Filipino World War II Veteran Parole Program
AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security.
ACTION: 60-day notice.
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SUMMARY: The Department of Homeland Security (DHS), U.S. Citizenship
and Immigration
Services (USCIS) invites the general public and other Federal
agencies to comment on this proposed revision of a currently approved
collection of information. The revision is necessary to announce and
implement a change in USCIS policy to terminate the Haitian Family
Reunification Parole (HFRP) program and the Filipino World War II
Veterans Parole (FWVP) program, to rescind the applicable policy
statements, and to revise the Instructions for USCIS Form I-131,
Application for Travel Document, to remove references to and provisions
regarding those programs. In accordance with the Paperwork Reduction
Act (PRA) of 1995, the information collection notice is published in
the Federal Register to obtain comments regarding these policy changes,
the nature of the information collection, the categories of
respondents, the estimated burden (i.e. the time, effort, and resources
used by the respondents to respond), the estimated cost to the
respondent, and the actual information collection instruments.
DATES: Comments will be accepted for 60 days until February 26, 2021.
Effective date of changes: These changes will be effective as of
the date the form is approved by OMB. Cases that have already been
filed as of the effective date of the new form and policies will be
processed to a decision.
ADDRESSES: All submissions received must include the OMB Control Number
1615-0013 in the body of the letter, the agency name and Docket ID
USCIS-2007-0045. Submit comments via the Federal eRulemaking Portal
website at https://www.regulations.gov under e-Docket ID number USCIS-
2007-0045. USCIS is limiting communications for this Notice as a result
of USCIS' COVID-19 response actions.
FOR FURTHER INFORMATION CONTACT: USCIS, Office of Policy and Strategy,
Regulatory Coordination Division, Samantha Deshommes, Chief, telephone
number (240) 721-3000 (This is not a toll-free number. Comments are not
accepted via telephone message). Please note contact information
provided here is solely for questions regarding this notice. It is not
for individual case status inquiries. Applicants seeking information
about the status of their individual cases can check Case Status
Online, available at the USCIS website at https://www.uscis.gov, or
call the USCIS Contact Center at 800-375-5283 (TTY 800-767-1833).
SUPPLEMENTARY INFORMATION:
I. Background:
Section 11 of Executive Order 13767 of January 25, 2017, ``Border
Security and Immigration Enforcement Improvements, (Section 11)
provides that ``[i]t is the policy of the executive branch to end the
abuse of parole and asylum provisions currently used to prevent the
lawful removal of removable aliens.'' Section 11(d) instructs DHS to
``take appropriate action to ensure that parole authority under section
212(d)(5) of the [Immigration and Nationality Act (``INA'')] (8 U.S.C.
1182(d)(5)) is exercised only on a case-by-case basis in accordance
with the plain language of the statute, and in all circumstances only
when an alien demonstrates an urgent humanitarian need or a significant
public benefit derived from such parole.''
On February 20, 2017, then-Secretary of Homeland Security Kelly
issued a memorandum entitled ``Implementing the President's Border
Security and Immigration Enforcement Improvements Policies.'' In that
memorandum, Secretary Kelly stated that ``[t]he statutory language
authorizes parole in individual cases only where, after careful
consideration of the circumstances, it is necessary because of
demonstrated urgent humanitarian reasons or significant public benefit.
. . .[i]n my judgment, such authority should be exercised sparingly.''
Additionally, it stated that ``[t]he practice of granting parole to
certain aliens in pre-designated categories in order to create
immigration programs not established by Congress, has contributed to a
border security crisis, undermined the integrity of the immigration
laws and the parole
[[Page 84363]]
process, and created an incentive for illegal immigration.'' \1\
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\1\ https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Implementing-the-Presidents-Border-Security-Immigration-Enforcement-Improvement-Policies.pdf.
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Accordingly, USCIS undertook a review of existing categorical
parole programs. USCIS is announcing the termination of HFRP and FWVP
programs and is revising the Instructions for Form I-131 to remove
references to and provisions regarding those programs. USCIS is also
revising the form to remove references to the Cuban Family
Reunification Parole (CFRP) Program.
A. HFRP
DHS established the HFRP program in 2014 as an exercise of its
discretionary parole authority to permit certain eligible Haitians in
Haiti who are the beneficiaries of approved family-based immigrant
petitions to join their family members in the United States for an
initial period of three years while they wait for immigrant visas to
become available. 79 FR 75581 (Dec. 18, 2014). Consistent with INA
section 212(d)(5), 8 U.S.C. 1182(d)(5), the decision to parole a
particular alien into the country was a case-by-case, discretionary
determination.
B. FWVP
In 2016, USCIS determined that paroling qualified applicants under
FWVP would generally yield a ``significant public benefit''
(recognizing sacrifices of Filipino World War II veterans). 81 FR 28907
(May 9, 2016). USCIS also determined that grants of parole under the
FWVP program would often address urgent humanitarian concerns
(recognizing the advanced age of these veterans and the need for care
by their alien family members). Id. Consistent with section 212(d)(5),
8 U.S.C. 1182(d)(5), the decision to parole a particular alien was a
case-by-case, discretionary determination.
C. Explanation for Change
For both the HFRP and FWVP programs, DHS broadly exercised its
statutory parole authority for multiple members of a narrowly defined
group. Notwithstanding the perceived benefits of these categorical
parole programs when they were established, this Administration
undertook a renewed analysis. Consistent with Secretary Kelly's
February 20, 2017 implementing memorandum, USCIS has determined that,
as a matter of policy, the HRFP and FWVP programs do not meet DHS's
obligation to narrowly exercise its parole authority.
Therefore, DHS is now rescinding the determination that there is a
presumption that there are significant public benefit or urgent
humanitarian reasons for parole requests from new applicants who meet
the specific criteria established under HFRP and FWVP programs.
Accordingly, new applicants who meet the FWVP and HFRP criteria will no
longer be presumed to have demonstrated that there are significant
public benefit or urgent humanitarian reasons present in their case by
virtue of meeting HFRP and FWVP criteria.
USCIS will continue to adjudicate requests from current
beneficiaries of the HFRP and FWVP programs who are already in the
United States under the existing standards of those programs and who
request a new period of parole.
II. Administrative Procedure Act (APA)
A. Discretionary Policy Statement
USCIS established the HFRP and FWVP programs through policy
statements announced by Federal Register notice (FRN). 81 FR 28907; 79
FR 75581. USCIS also revised the Instructions for Form I-131 to provide
instructions and evidence requirements to implement the policies. USCIS
did not change its regulations.
The HFRP and FWVP programs were established using DHS'
discretionary parole authority found in INA section 212(d)(5)(A), 8
U.S.C. 1182(d)(5)(A), and 8 CFR 212.5(c)-(d). An alien does not have a
right to parole and there is no obligation for DHS to grant parole.
Parole is an exercise of the Secretary's discretionary authority to
permit an alien to temporarily enter the United States for certain
reasons on a case-by-case basis for urgent humanitarian reasons or for
a significant public benefit. The APA exempts from its requirements for
public notice and comment general statements of policy, ``issued by an
agency to advise the public prospectively of the manner in which the
agency proposes to exercise a discretionary power.'' Lincoln v. Vigil,
508 U.S. 182, 197 (1993) (quoting Chrysler Corp. v. Brown, 441 U.S. at
302, n. 31 (1979) (quoting Attorney General's Manual on the
Administrative Procedure Act 30, n. 3 (1947))). The termination of the
HFRP and FWVP programs does not change the statutory standard for
parole, and parole will remain an avenue for DHS to authorize, in its
discretion, for certain aliens to travel to the United States.
Therefore, terminating the HFRP and FWVP programs is exempt from the
notice and comment requirements of the APA as a general statement of
policy advising the public prospectively of the manner in which USCIS
will exercise a discretionary power. Lincoln, 508 U.S. at 197.
DHS has reviewed this policy change and determined that it would be
highly unlikely to adversely affect the substantive rights of some of
the affected parties. DHS understands that it must show that there are
good reasons for the new policy and acknowledge its conscious change of
course, and that reasoned explanation is needed for disregarding facts
and circumstances that underlay or were engendered by the prior policy.
FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) (citing
Smiley v. Citibank (South Dakota), N. A., 517 U.S. 735, 742 (1996).
Executive Order 13767 instructs DHS to take appropriate action to
ensure that parole authority under section 212(d)(5) of the INA, 8
U.S.C. 1182(d)(5), is exercised only on a case by case basis in
accordance with the plain language of the statute, and in all
circumstances only when an alien demonstrates urgent humanitarian
reasons or a significant public benefit derived from such parole. DHS
believes the existing broad presumption that there are significant
public benefit or urgent humanitarian reasons to consider parole for
new applicants who meet the specific pre-established criteria under the
HFRP and FWVP programs is inconsistent with the Executive Order and
Secretary Kelly's implementing guidance directing that the policy of
DHS is to exercise its parole authority narrowly.
1. HFRP
The Federal Register notice establishing HFRP states, ``By
expanding existing legal means for Haitians to immigrate, the HFRP
Program serves a significant public benefit by promoting safe, legal,
and orderly migration to the United States. Furthermore, it supports
U.S. goals for Haiti's long-term reconstruction and development. Once
paroled into the United States, HFRP Program beneficiaries will be
eligible to apply for employment authorization, and those who are able
to work may contribute to Haiti's post-earthquake reconstruction and
development through remittances.'' 79 FR 75581.
DHS has determined Haiti has made significant progress recovering
from the 2010 earthquake and subsequent effects. With U.S. and
international support for recovery, reconstruction, and development
programs, Haiti has achieved significant improvements in basic health
indicators, agricultural production, and jobs creation, according to
the U.S. Department of State. 98 percent of 1.5 million people
displaced
[[Page 84364]]
following the earthquake have been resettled as of 2020, according to
the International Organization for Migration. In light of these
determinations, DHS has determined that the HFRP program no longer
serves a significant public benefit for new applicants.
2. FWVP
The Federal Register notice establishing FWVP states, ``Recognizing
the contributions and sacrifices of Filipino veterans who fought for
the United States during World War II and their families, USCIS has
decided to implement the FWVP policy. In many cases, ``paroling these
family members may also allow them to provide support and care for
elderly veterans or their surviving spouse. . . For certain Filipino
American family members, this wait can exceed 20 years'' 81 FR 28097.
Further, ``In light of the circumstances described above, among other
considerations, USCIS believes that the parole of qualified applicants
who establish on a case-by-case basis that they are eligible for
consideration under this policy and merit a favorable exercise of
discretion would generally yield a `significant public benefit.'
Additionally, considering the advanced age of World War II Filipino
veterans and their spouses, and their increased need for care and
companionship, grants of parole under the FWVP policy would often
address urgent humanitarian concerns. In all cases, whether to parole a
particular alien under this policy is a discretionary determination
that will be made on a case-by-case basis.'' Id.
DHS has determined that the FWVP program is inconsistent with the
policy decision to narrowly exercise DHS' parole authority in making
determinations of significant public benefit. With regard to urgent
humanitarian concerns, DHS has no data substantiating that the
admission of participants in the FWVP program routinely addresses an
urgent humanitarian concern. An eligible alien may request parole even
if the veteran and spouse the alien is petitioning to support are both
deceased. The parole of an alien may not actually be yielding any
significant public or humanitarian benefit in such instances. For these
reasons, DHS believes that new FWVP program applications are more
appropriately adjudicated through an individual application instead of
a categorical program with a presumption of a significant public
benefit or urgent humanitarian concern.
B. Reliance Interest
DHS has taken into account serious reliance interests that may be
engendered by the 2014 and 2016 HFRP and FWVP policies. With respect to
initial and pending applicants, DHS has determined that potential
applicants cannot reasonably be determined to have taken an action in
detrimental reliance on DHS or USCIS continuing these programs. It is
not reasonable that potential applications would make major changes in
their lives or incur significant expenses in anticipation that DHS
would continue these programs in perpetuity and that they would be able
to apply and be approved. With respect to current HFRP and FWVP
parolees, DHS acknowledges the reliance interest of those aliens who
are not yet lawful permanent residents and will make a new period of
parole under the criteria of these programs available to them, on a
case-by-case basis, to ensure continued eligibility. Further discussion
of these reliance interests follows.
1. Reliance Interest of HFRP Parolees
For HFRP, DHS has determined that any alien who has not yet applied
for the HFRP program is unlikely to have incurred costs or been harmed
based on relying on DHS continuing that policy because the petitioner
must receive an invitation to apply, and USCIS has not issued any such
invitations since 2016. Thus, although DHS is changing its past pattern
and practice, the program has not been open for new applicants for four
years, and a potential applicant will not be surprised by the change
and will not have suffered harm as a result of acting in reliance on
the continuation of the HFRP program. Haitian petitioners with an
approved Form I-130 or their Haitian beneficiary relatives should not
complete a Form I-131, incur expenses, and take actions in reliance on
USCIS being able to process their application when they cannot do so on
their own accord and without an invitation from USCIS. Nevertheless,
DHS is formally announcing in this notice that the HFRP program will be
terminated to provide advance notice to parties who may be affected. To
the extent that an alien has a pending Form I-131 for HFRP as of the
date of this notice, USCIS will process and adjudicate that request to
completion. USCIS welcomes public comments on all of the effects of
this change in policy.
With respect to granting a new parole period (``re-parole'') for
HFRP beneficiaries already paroled into the United States, DHS
acknowledges that a current beneficiary has significant reliance
interest in the continuation of the program as they were when they were
granted parole. A current parolee decided to accept the USCIS
invitation to apply for parole and expend the time, effort, and expense
to uproot his or her life and move to the United States as a parolee,
instead of staying in Haiti and waiting for an immigrant visa to become
available. When the program was established, USCIS informed HFRP
beneficiaries that it was their responsibility to seek re-parole in the
United States until eligible to adjust status and they should apply for
re-parole at least 90 days before parole expires. USCIS informed
approved HFRP beneficiaries that, if their immigrant visa is still
unavailable at the time their parole expires, they must apply to USCIS
for a new parole authorization and pay the required fee. Therefore,
HFRP program beneficiaries are expected to apply for lawful permanent
resident status as soon as their immigrant visa becomes available. The
majority of HFRP beneficiaries will have an immigrant visa available at
the time their parole expires. Given these reliance interests, DHS will
accept requests for re-parole under the existing standards of the HFRP
program.
2. Reliance Interest of FWVP Parolees
For FWVP, DHS has determined that an applicant who has not yet
applied for the FWVP program is unlikely to have incurred costs or been
harmed based on relying on DHS continuing that policy. To the extent
that an alien is in the process of completing and filing a request,
USCIS will provide two public notices of the impending form, policy and
procedure change. Aliens who are currently in the process of completing
their paperwork may also apply for the FWVP program until the date that
it is terminated, which is when the Form I-131 changes go into effect.
To the extent that applicants who are not yet working on, researching,
and gathering necessary evidence for an application may no longer
receive parole after this change, DHS believes the FWVP program is
inconsistent with its narrower interpretation of the parole authority
and the public policy goals supported by a narrow use of its parole
authority (as described in Secretary Kelly's memorandum) justify and
outweigh any minor reliance interests of those aliens who may have
contemplated filing an application for FWVP but have not yet done so at
the time the program is formally terminated. If an alien has an I -131
application for FWVP pending as of December 28, 2020, USCIS will
process and adjudicate that request to completion. USCIS welcomes
public
[[Page 84365]]
comments on all of the effects of this change in policy.
As for granting re-parole to FWVP beneficiaries already paroled
initially into the United States, DHS acknowledges that a current
beneficiary as well as U.S. citizen petitioners may have a significant
reliance interest in the continuation of the program as it was when the
alien was granted parole. A current parolee decided to avail himself or
herself to the USCIS opportunity to apply for parole and expend the
time, effort, and expense to uproot his or her life and move to the
United States as a parolee, instead of staying in the Philippines and
waiting for an immigrant visa to become available. The beneficiary (the
Filipino war veteran or his or her spouse) may also have a reliance
interest. The veteran or spouse may have paid the fees and expended
other resources in contemplation of relatives coming to the United
States to care for them, or may have forgone other living situations
that were available to them if they did not have the care of the
relative who had been able to join them in the US. When the program was
established, USCIS informed FWVP parolees that it was their
responsibility to seek re-parole in the United States until eligible to
adjust status and they should apply for re-parole at least 90 days
before parole expires. USCIS informed approved FWVP parolees that if
their immigrant visa is still unavailable at the time their parole
expires, they must apply to USCIS for a re-parole and pay the required
fee. Therefore, FWVP program beneficiaries are expected to apply for
lawful permanent resident status as soon as their immigrant visa
becomes available.
Given these reliance interests, DHS will accept requests for re-
parole under the existing standards of the FWVP program.
Comments
You may access the information collection instrument with
instructions, or additional information by visiting the Federal
eRulemaking Portal site at: http://www.regulations.gov and enter USCIS-
2007-0045 in the search box. All submissions will be posted, without
change, to the Federal eRulemaking Portal at https://www.regulations.gov, and will include any personal information you
provide. Therefore, submitting this information makes it public. You
may wish to consider limiting the amount of personal information that
you provide in any voluntary submission you make to DHS. DHS may
withhold information provided in comments from public viewing that it
determines may impact the privacy of an individual or is offensive. For
additional information, please read the Privacy Act notice that is
available via the link in the footer of https://www.regulations.gov.
Written comments and suggestions from the public and affected
agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
Overview of This Information Collection
(1) Type of Information Collection: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: Application for Travel Document.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: I-131; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. Certain
aliens, principally permanent or conditional residents, refugees or
asylees, applicants for adjustment of status, aliens in Temporary
Protected Status (TPS), and aliens abroad seeking humanitarian parole
who need to apply for a travel document to lawfully enter or reenter
the United States. Eligible recipients of deferred action under
childhood arrivals (DACA) may now request an advance parole documents
based on humanitarian, educational and employment reasons. Lawful
permanent residents may now file requests for travel permits
(transportation letter or boarding foil).
(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-131 is
379,483 and the estimated hour burden per response is 1.9 hours; the
estimated total number of respondents for biometrics processing is
75,100 and the estimated hour burden per response is 1.17 hours; the
estimated total number of respondents for passport-style photos is
325,000 and the estimated hour burden per response is 0.5 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 971,385 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 $111,568,002.
Dated: December 18, 2020.
Joseph Edlow,
Deputy Director for Policy, U.S. Citizenship and Immigration Services,
Department of Homeland Security.
[FR Doc. 2020-28475 Filed 12-23-20; 8:45 am]
BILLING CODE 9111-97-P