[Federal Register Volume 77, Number 63 (Monday, April 2, 2012)] [Proposed Rules] [Pages 19902-19923] From the Federal Register Online via the Government Printing Office [www.gpo.gov] [FR Doc No: 2012-7698]
Department of Homeland Security
Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives; Proposed Rule
Federal Register / Vol. 77 , No. 63 / Monday, April 2, 2012 / Proposed Rules
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DEPARTMENT OF HOMELAND SECURITY
Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives
AGENCY: Department of Homeland Security, U.S. Citizenship and Immigration Services.
ACTION: Proposed rule.
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SUMMARY: On January 9, 2012, U.S. Citizenship and Immigration Services (USCIS) announced its intention to change its current process for filing and adjudication of certain applications for waivers of inadmissibility filed in connection with an immediate relative immigrant visa application. USCIS now proposes to amend its regulations to allow certain immediate relatives of U.S. citizens who are physically present in the United States to request provisional unlawful presence waivers under the Immigration and Nationality Act of 1952, as amended (INA or Act), prior to departing from the United States for consular processing of their immigrant visa applications. Currently, such aliens must depart from the United States and request waivers of inadmissibility during the overseas immigrant visa process, often causing U.S. citizens to be separated for extended periods from their immediate relatives who are otherwise eligible for an immigrant visa and admission for lawful permanent residence. Under the proposal, USCIS would grant a provisional unlawful presence waiver that would become fully effective upon the alien's departure from the United States and the U.S. Department of State (DOS) consular officer's determination at the time of the immigrant visa interview that, in light of the approved provisional unlawful presence waiver and other evidence of record, the alien is otherwise admissible to the United States and eligible to receive an immigrant visa. USCIS does not envision issuing Notices to Appear (NTA) to initiate removal proceedings against aliens whose provisional waiver applications have been approved. However, if USCIS, for example, discovers acts, omissions, or post-approval activity that would meet the criteria for NTA issuance or determines that the provisional waiver was granted in error, USCIS may issue an NTA, consistent with USCIS's NTA issuance policy, as well as reopen the provisional waiver approval and deny the waiver request. USCIS anticipates that the proposed changes will significantly reduce the length of time U.S. citizens are separated from their immediate
relatives who are required to remain outside of the United States for immigrant visa processing and during adjudication of a waiver of inadmissibility for the unlawful presence. USCIS also believes that the
proposed process, which reduces the degree of interchange between the DOS and USCIS, will create efficiencies for both the U.S. Government and most applicants. In addition to codifying the new process, USCIS proposes amendments clarifying other regulations.     Even after USCIS begins accepting provisional unlawful presence waiver applications, the filing or approval of a provisional unlawful presence waiver application will not: confer any legal status, protect against the accrual of additional unlawful presence, authorize an alien to enter the United States without securing a visa or other appropriate entry document, convey any interim benefits (e.g., employment authorization, parole, or advance parole), or protect an alien from being placed in removal proceedings or removed from the United States.     Do not send an application requesting a provisional waiver under the procedures under consideration in this proposed rule. Any
provisional waiver application filed before the rule becomes final and effective will be rejected and the application package returned to the applicant, including any fees. USCIS will begin accepting provisional
waiver applications only after a final rule is issued and the procedural change becomes effective.
DATES: Written comments should be submitted on or before June 1, 2012. ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS- 2012-0003, by one of the following methods:     Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.     Email: You may submit comments directly to USCIS by email at uscisfrcomment@dhs.gov. Include DHS Docket No. USCIS-2012-0003 in the subject line of the message.     Mail: Sunday Aigbe, Chief, Regulatory Products Division, Office of the Executive Secretariat, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529-2020. To ensure proper handling, please reference DHS Docket No. USCIS-2012-0003 on your correspondence. This mailing address may be used for paper, disk, or CD-ROM submissions.     Hand Delivery/Courier: Sunday Aigbe, Chief, Regulatory Products Division, Office of the Executive Secretariat, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529-2020. Contact Telephone Number is (202) 272-8377.
FOR FURTHER INFORMATION CONTACT: Roselyn Brown-Frei, Office of Policy and Strategy, Residence and Naturalization Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529-2099, Telephone (202) 272-1470 (this is not a toll free number).
Table of Contents:
I. Public Participation II. Executive Summary III. Background     A. Legal Authority     B. Grounds of Inadmissibility     C. Unlawful Presence     D. Current Waiver Process     E. Problems With the Current Inadmissibility Waiver Process     F. Notice of Intent IV. Proposed Changes     A. Overview of Proposed Provisional Unlawful Presence Waiver Process     B. Rationale for Proposed Change     C. Aliens Eligible To Seek a Provisional Unlawful Presence Waiver     D. Aliens Ineligible for a Provisional Unlawful Presence Waiver     E. Filing, Adjudication, and Decisions     F. Motions To Reopen or Reconsider or Appeals of Denied Provisional Unlawful Presence Waiver Applications     G. Terms and Conditions of the Provisional Unlawful Presence Waiver     H. Validity of the Provisional Unlawful Presence Waiver     I. Limitations of a Provisional Unlawful Presence Waiver     J. Clarification of 8 CFR 212.7(a)(1) and (a)(4) V. Public Input VI. Statutory and Regulatory Requirements     A. Unfunded Mandates Reform Act of 1995     B. Small Business Regulatory Enforcement Fairness Act of 1996     C. Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review)     D. Executive Order 13132: This proposed rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels
of government. Therefore, in accordance with section 6 of
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Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.     E. Executive Order 12988 Civil Justice Reform     F. Paperwork Reduction Act     G. Regulatory Flexibility Act
SUPPLEMENTARY INFORMATION:
I. Public Participation
    All interested parties are invited to participate in this rulemaking by submitting written data, views, or arguments on all
aspects of this proposed rule. Comments that will provide the most
assistance to DHS in developing these procedures will reference a
specific portion of this rule, explain the reason for any recommended
change, and include data, information, or authority that supports the
recommended change.     Instructions: All submissions must include the agency name and DHS Docket No. USCIS-2012-0003. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided.     Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov.
II. Executive Summary
A. Purpose of the Regulatory Action
1. Need for the Regulatory Action     Currently, certain spouses, children and parents of U.S. citizens (``immediate relatives'') who are in the United States are not eligible to apply for lawful permanent resident status (LPR) without leaving the United States because they entered the country unlawfully. These
immediate relatives must travel abroad to obtain an immigrant visa from
the Department of State (DOS) and, in many cases, also must request from the Department of Homeland Security (DHS) a waiver of the inadmissibility that resulted from their unlawful presence while they remain outside of the United States, separated from their U.S. citizen spouses, parents, or children. In some cases, waiver application processing can take well over a year, and the prolonged separation from immediate relatives can cause many U.S. citizens to experience extreme humanitarian and financial hardships. In addition, the action required for these immediate relatives to obtain LPR status in the United States--departure from the United States to apply for an immigrant visa at a DOS consulate abroad--is the very action that triggers the unlawful presence inadmissibility grounds under INA section
212(a)(9)(B)(i). As a result, many immediate relatives who may qualify
for an immigrant visa are reluctant to proceed abroad to seek an
immigrant visa. 2. Proposed Provisional Unlawful Waiver Process     DHS proposes to change its current process for the filing and adjudication of certain waivers of inadmissibility for qualifying immediate relatives of U.S. citizens, who are physically present in the United States, but must proceed abroad to obtain their immigrant visas. DHS proposes to allow qualifying immediate relatives to apply for a provisional waiver of their inadmissibility for unlawful presence while they are still in the United States and before they leave to attend their immigrant visa interview abroad.     Approving an application for a provisional unlawful presence waiver prior to the immediate relative's immigrant visa interview will allow
the DOS consular officer to issue the immigrant visa without delay if
there are no other grounds of inadmissibility and if the immediate
relative otherwise is eligible to be issued an immigrant visa. The
immediate relative would not have to wait abroad during the period when
USCIS adjudicates his or her waiver request, but rather could remain in
the United States with his or her U.S. citizen spouse or parent during
that period. As a result, U.S. citizens' separation from their immediate relatives would be significantly reduced. In addition, given the greater certainty that will result from this process, U.S. citizens and their family members would also be able to better plan for the immediate relative's departure and eventual return to the United States. 3. Legal Authority     The Secretary of Homeland Security's authority for this proposed procedural change can be found in the Homeland Security Act of 2002, Public Law 107-296, section 102, 116 Stat. 2135, 6 U.S.C. 112, and
section 103 of the Immigration and Nationality Act (INA or the Act), 8
U.S.C. 1103, which give the Secretary the authority to administer and
enforce the immigration and nationality laws. The Secretary's
discretionary authority to waive the ground of inadmissibility for
unlawful presence can be found in INA section 212(a)(9)(B)(v), 8 U.S.C.
1182(a)(9)(B)(v). The regulation governing certain inadmissibility
waivers is 8 CFR 212.7, and the fee schedule for waiver requests is
found at 8 CFR 103.7.
B. Summary of the Major Provisions of the Regulatory Action in Question
    DHS proposes to allow certain immediate relatives to file provisional waiver applications before they depart from the United States for their immigrant visa interviews. 1. Eligibility for the Provisional Waiver     Individuals may request a provisional waiver if:     i. Their sole ground of inadmissibility at the time of the
immigrant visa interview with DOS would be unlawful presence for more
than 180 days;     ii. They are the beneficiary of an approved Form I-130, Petition for Alien Relative or Form I-360, Petition for Amerasian, Widow(er), and Special Immigrant (classifying them as immediate relatives), and seek an immigrant visa from DOS based on this approved petition;     iii. They are physically present in the United States when they file the application for the provisional unlawful presence waiver;     iv. They appear for biometrics capture in the United States;     v. They establish that a U.S. citizen spouse or parent would experience extreme hardship if the individual is denied admission to the United States as an LPR;     vi. They warrant a favorable exercise of discretion; and     vii. They are 17 years or older at the time of filing an application for a provisional unlawful presence waiver. 2. Ineligibility for the Provisional Unlawful Presence Waiver     Individuals are ineligible for a provisional waiver if:     i. They are outside the United States;     ii. They do not have an approved Form I-130 or Form I-360 petition, classifying them as an immediate relative;     iii. They have not paid the immigrant visa processing fee to DOS and are not actively pursuing the immigrant visa process based on the
approved petition;     iv. They have already been scheduled for an immigrant visa interview;     v. They are under the age of 17 years when the provisional unlawful presence waiver is filed;     vi. They are in removal proceedings that have not been terminated or dismissed;     vii. They have not had the charging document (Notice to Appear) to initiate removal proceedings cancelled;     viii. They are in removal proceedings that have been administratively closed but not subsequently reopened for the issuance of a final voluntary departure order;
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    ix. They are subject to a final order of removal;     x. They have a pending application for adjustment of status to that of an LPR in the United States;     xi. USCIS has reason to believe they would be subject to one or more other grounds of inadmissibility;     xii. They fail to establish extreme hardship or do not merit a favorable exercise of discretion; or     xiii. They previously filed a provisional unlawful presence waiver application. 3. Adjudication and Decision     USCIS would adjudicate the provisional unlawful presence waiver application and issue requests for evidence. USCIS would not issue Notices of Intent to Deny (NOIDs). If USCIS approves the provisional waiver application, USCIS would notify the applicant and DOS of the approval. Denials cannot be appealed and aliens will not have the right to seek motions to reopen or reconsider USCIS's decision. Aliens whose provisional waiver requests are denied, however, may still apply for a waiver through the current I-601 waiver process. USCIS also reserves the authority to reopen and reconsider on its own motion an approval or a denial of a provisional waiver application at any time. 4. Effect of Waiver     An approved provisional waiver would not become effective until the alien departs from the United States, appears for his or her immigrant visa interview and is found admissible and otherwise eligible for the immigrant visa by DOS. The provisional waiver would then become a permanent waiver, waiving the inadmissibility based on the period of unlawful presence noted in the waiver request. 5. Revocation     An approved provisional waiver is automatically revoked if DOS denies the immigrant visa application or if the underlying immigrant visa petition approval is revoked, withdrawn, or otherwise rendered invalid. An approved waiver also is revoked if the alien is inadmissible on grounds other than for unlawful presence under INA section 212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i), if the alien is otherwise ineligible for an immigrant visa, or if DOS terminates the alien's immigrant visa registration under INA section 203(g), 8 U.S.C. 1153(g).
C. Costs and Benefits
    This proposed rule is expected to result in a reduction in the time that U.S. citizens are separated from their alien immediate relatives, thus reducing the financial and emotional hardship for these families. In addition, the Federal Government would achieve increased efficiencies in processing immigrant visas for individuals subject to the inadmissibility bar.     DHS estimates the discounted total ten-year cost of this rule would
range from approximately $100.6 million to approximately $303.8 million
at a seven percent discount rate. Compared with the current waiver
process, this rule proposes that the provisional waiver applicants
submit biometric information. Included in this cost estimate is the cost of collecting biometrics, which we estimate will range from approximately $28 million to approximately $42.5 million at seven percent over ten years. In addition, as this rule significantly streamlines the current process, DHS expects that additional applicants will apply for the provisional unlawful presence waiver compared to the current waiver process. To the extent that this rule induces new demand for immediate relative visas, additional forms such as the Form I-130, Petition for Alien Relative, will be filed compared to the pre-rule baseline. These additional forms will involve fees being paid by applicants to the Federal Government for form processing and additional opportunity costs of time being incurred by applicants to provide the information required by the forms. The cost estimate for this rule also
includes the impact of this induced demand, which we estimate will range from approximately $72.6 million to approximately $261.3 million at seven percent over ten years.     Estimates for the costs of the proposed rule were developed assuming that current demand is constrained because of concerns that families may endure lengthy separations under the current system.
Because of uncertainties as to the degree of the current constraint of
demand, DHS used a range of constraint levels with corresponding
increases in demand to estimate the costs. III. Background

A. Legal Authority
    The Homeland Security Act of 2002, Public Law 107-296, section 102, 116 Stat. 2135, 6 U.S.C. 112, and section 103 of the INA, 8 U.S.C. 1103, charge the Secretary of Homeland Security (Secretary) with administration and enforcement of the immigration and naturalization laws. The Secretary would effectuate these proposed changes under the broad authority to administer the Department of Homeland Security and the authorities provided
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Link to this information:  http://www.gpo.gov/fdsys/pkg/FR-2012-04-02/html/2012-7698.htm