[Federal Register Volume 78, Number 2 (Thursday, January 3, 2013)]
[Rules and Regulations]
[Pages 535-578]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-31268]



[[Page 535]]

Vol. 78

Thursday,

No. 2

January 3, 2013

Part III





 Department of Homeland Security





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8 CFR Parts 103 and 212





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

Federal Register / Vol. 78 , No. 2 / Thursday, January 3, 2013 / 
Rules and Regulations

[[Page 536]]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 103 and 212

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


Provisional Unlawful Presence Waivers of Inadmissibility for 
Certain Immediate Relatives

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

ACTION: Final rule.

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SUMMARY: On April 2, 2012, U.S. Citizenship and Immigration Services 
(USCIS) published a proposed rule 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 
prior to departing from the United States for consular processing of 
their immigrant visa applications. This final rule implements the 
provisional unlawful presence waiver process. It also finalizes 
clarifying amendments to other provisions within our regulations. The 
Department of Homeland Security (DHS) anticipates that these changes 
will significantly reduce the length of time U.S. citizens are 
separated from their immediate relatives who engage in consular 
processing abroad. DHS also believes that this new process will reduce 
the degree of interchange between the U.S. Department of State (DOS) 
and USCIS and create greater efficiencies for both the U.S. Government 
and most provisional unlawful presence waiver applicants.
    DHS reminds the public that the filing or approval of a provisional 
unlawful presence waiver application will not: Confer any legal status, 
protect against the accrual of additional periods of 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 in accordance with current DHS policies governing 
initiation of removal proceedings and the use of prosecutorial 
discretion.

DATES: This final rule is effective March 4, 2013.

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. Executive Summary
    A. Purpose of the Regulatory Action
    B. Summary of the Major Provisions of the Regulatory Action
    C. Costs and Benefits
II. Legal Authority
III. Background
    A. Notice of Intent
    B. Proposed Rule
    C. Final Rule
IV. Public Comments on Proposed Rule
    A. Summary of Public Comments
    B. Legal Authority To Implement the Provisional Unlawful 
Presence Waiver Process
    C. Eligibility for the Provisional Unlawful Presence Waiver
    D. Filing Requirements and Fees
    E. Adjudication
    F. Denials, Motions To Reopen or Reconsider, and Appeals
    G. Effect of Pending or Approved Provisional Unlawful Presence 
Waivers
    H. Automatic Revocation
    I. Comments on Form I-601A, Application for Provisional Unlawful 
Presence Waiver
    J. Miscellaneous Comments
    K. Comments on Executive Orders 12866/13563 Analysis
V. Regulatory Amendments
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
    E. Executive Order 12988 Civil Justice Reform
    F. Paperwork Reduction Act
    G. Regulatory Flexibility Act


SUPPLEMENTARY INFORMATION: 

I. Executive Summary

A. Purpose of the Regulatory Action

1. Need for the Regulatory Action
    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 (LPR) status while in the United States. 
Instead, these immediate relatives must travel abroad to obtain an 
immigrant visa from the Department of State (DOS) to return to the 
United States to request admission as an LPR, and, in many cases, also 
must request from the Department of Homeland Security (DHS) a waiver of 
inadmissibility as a result of their unlawful presence in the United 
States. Currently, these immediate relatives cannot apply for the 
waiver until after their immigrant visa interviews abroad. As a result, 
these immediate relatives must remain outside of the United States, 
separated from their U.S. citizen spouses, parents, or children, while 
USCIS adjudicates their waiver applications. In some cases, waiver 
application processing can take well over one year, prolonging the 
separation of these immediate relatives from their U.S. citizen 
spouses, parents, and children. 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 section 212(a)(9)(B)(i) of the 
Immigration and Nationality Act (INA), 8 U.S.C. 1182(a)(9)(B)(i). As a 
result of the often lengthy processing times and uncertainty about 
whether they qualify for a waiver of the unlawful presence 
inadmissibility grounds, many immediate relatives who may qualify for 
an immigrant visa are reluctant to proceed abroad to seek an immigrant 
visa.
2. Provisional Unlawful Presence Waiver Process
    Through this final rule, DHS is changing its current process for 
the filing and adjudication of certain waivers of inadmissibility for 
eligible immediate relatives of U.S. citizens, who are physically 
present in the United States but will proceed abroad to obtain their 
immigrant visas. The new waiver process will allow eligible immediate 
relatives to apply for a provisional unlawful presence waiver while 
they are still in the United States and before they leave to attend 
their immigrant visa interview abroad. DHS anticipates that this new 
provisional unlawful presence waiver process will significantly reduce 
the time that U.S. citizens are separated from their immediate 
relatives. USCIS's approval of an applicant's provisional unlawful 
presence waiver prior to departure also will allow the DOS consular 
officer to issue the immigrant visa without further delay, if there are 
no other grounds of inadmissibility and if the immediate relative is 
otherwise eligible to be issued an immigrant visa.
3. Legal Authority
    The Homeland Security Act of 2002, Public Law 107-296 (Homeland 
Security Act of 2002), section 102, 116 Stat. 2135, 6 U.S.C. 112, and 
INA section 103, 8 U.S.C. 1103, charge the Secretary of Homeland 
Security

[[Page 537]]

(Secretary) with the administration and enforcement of the immigration 
and naturalization laws. The Secretary is implementing this provisional 
unlawful presence waiver process under the broad authority to 
administer DHS and the authorities provided under the Homeland Security 
Act of 2002, the immigration and nationality laws, and other delegated 
authority. 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. The fee schedule for 
provisional unlawful presence waiver applications is found at 8 CFR 
103.7(b)(1)(i)(AA).

B. Summary of the Major Provisions of the Regulatory Action

    On April 2, 2012, U.S. Citizenship and Immigration Services (USCIS) 
published a Notice of Proposed Rulemaking (NPRM), which outlined the 
provisional unlawful presence waiver process. See Provisional Unlawful 
Presence Waivers of Inadmissibility for Certain Immediate Relatives, 77 
FR 19902 (April 2, 2012). After careful consideration of the public 
comments, DHS adopts most of the proposed regulatory amendments without 
change, except for the provisions noted below:
1. Section 103.7(c)(3)(i)
    In the proposed rule, DHS noted in the supplementary text that 
applicants for a provisional unlawful presence waiver cannot seek a fee 
waiver for the Form I-601A filing fees or the required biometric fees. 
See 77 FR at 19910. DHS incorrectly referenced proposed regulatory text 
at 8 CFR 103.7(b)(1)(i)(C) and inadvertently omitted the correct 
citation to the regulatory provision being amended and the amendatory 
text. DHS has corrected this error and has included an amendment to 8 
CFR 103.7(c)(3) in this final rule to clarify that fee waivers are not 
available for the biometric or filing fees for the Form I-601A. See 
section 103.7(c)(3)(i).
2. Section 212.7(a)(4)(iv)
    DHS proposed an amendment to 8 CFR 212.7(a)(4) to provide that 
termination of an alien's conditional LPR status also would result in 
automatic revocation of an approved waiver of inadmissibility. See 77 
FR at 19912 and 19921. Several commenters noted that INA section 
216(f), 8 U.S.C. 1186a(f), only allows for automatic revocation of 
waivers of inadmissibility approved under INA sections 212(h) and (i), 
8 U.S.C. 1182(h) and (i). DHS agrees and has revised the amendment to 8 
CFR 212.7(a)(4) to clarify that automatic revocation of approved 
waivers upon termination of conditional resident status only applies to 
approved waivers based on INA sections 212(h), 8 U.S.C. 1182(h) 
(waivers for certain criminal offenses), and INA section 212(i), 8 
U.S.C. 1182(i) (waivers for fraud or willful misrepresentation of a 
material fact). See section 212.7(a)(4)(iv).
3. Section 212.7(e)(1)
    During discussions about the proposed provisional unlawful presence 
waiver process and how it would affect aliens in removal proceedings, a 
question arose regarding the authority of Department of Justice (DOJ), 
Executive Office for Immigration Review (EOIR) immigration judges (IJs) 
and whether IJs would adjudicate Forms I-601A for aliens in removal 
proceedings. DHS determined that it would be more efficient and 
appropriate to have Form I-601A waivers centralized and adjudicated by 
one agency, USCIS, especially given the intended streamlined nature of 
the process and the need for close coordination with DOS once a waiver 
is decided. DHS therefore added a new paragraph to clarify that the 
Application for Provisional Unlawful Presence Waiver, Form I-601A, will 
be filed only with USCIS, even if an alien is in removal proceedings 
before EOIR. See section 212.7(e)(1).
4. Section 212.7(e)(2)
    DHS restructured this provision and added language to make clear 
that approval of the provisional unlawful presence waiver is 
discretionary and does not constitute a grant of any lawful immigration 
status or create a period of stay authorized by the Secretary for 
purposes of INA section 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B). See 
section 212.7(e)(2)(i). DHS also clarified that a pending or approved 
provisional unlawful presence waiver does not authorize any interim 
benefits such as employment authorization or advance parole. See 
section 212.7(e)(2)(ii).
5. Section 212.7(e)(3)
    Many commenters asked DHS to expand eligibility for the provisional 
unlawful presence waiver process to other categories of aliens seeking 
to immigrate to the United States. DHS considered the commenters' 
suggestions but is limiting the provisional unlawful presence waiver to 
immediate relatives of U.S. citizens. After assessing the effectiveness 
of the new provisional unlawful presence waiver process and its 
operational impact, DHS, in consultation with DOS and other affected 
agencies, will consider expanding the provisional unlawful presence 
waiver process to other categories.
6. Former Section 212.7(e)(4)(ii)(H)
    DHS initially proposed to reject a provisional unlawful presence 
waiver application if an alien has not indicated on the application 
that the qualifying relative is a U.S. citizen spouse or parent. See 77 
FR at 19922. DHS has determined that this criterion is more appropriate 
for an adjudicative decision and that this assessment should not be 
made through a review during the intake process. Thus, DHS has deleted 
this rejection criterion in the final rule.
7. Section 212.7(e)(4)(iv)
    DHS proposed excluding aliens from the provisional unlawful 
presence waiver process who were already scheduled for their immigrant 
visa interviews with DOS. See 77 FR at 19921. DHS has retained this 
requirement. DHS now adds language to the final rule to clarify when an 
alien is ineligible for a provisional unlawful presence waiver because 
of a previously scheduled immigrant visa interview.
    USCIS will first look at whether the scheduled immigrant visa 
interview is based on the approved immediate relative petition (I-130 
or I-360) that accompanies the Form I-601A. If it is, USCIS will then 
look at the Department of State's Consular Consolidated Database (CCD) 
to determine the date on which the Department of State initially acted 
to schedule the applicant for his or her immigrant visa interview 
(i.e., the date of scheduling itself and not the date and time the 
applicant must appear for the interview).
    If the date that the Department of State initially acted to 
schedule the immigrant visa interview is prior to the date of 
publication of this final rule, January 3, 2013, then the alien is 
ineligible to apply for a provisional unlawful presence waiver. If the 
date that the Department of State initially acted to schedule the 
immigrant visa interview is on or after the publication date of this 
final rule, the alien is eligible to apply for a provisional unlawful 
presence waiver. The actual date and time that the alien is scheduled 
to appear for the interview is not relevant for the eligibility 
determination. This rule applies even if the alien failed to appear for 
his or her interview, cancelled the interview, or requested that the 
interview be rescheduled. Therefore, USCIS may

[[Page 538]]

reject or deny any Form I-601A filed by an alien who USCIS determines 
that the Department of State initially acted to schedule an initial 
immigrant visa interview for the approved immediate relative petition 
upon which the Form I-601A is based, prior to the date of publication 
of this final rule. See section 212.7(e)(4)(iv).
    An alien who is ineligible to apply for a provisional unlawful 
presence waiver because of a previously scheduled immigrant visa 
interview may still qualify for a provisional unlawful presence waiver 
if he or she has a new DOS immigrant visa case because (1) DOS 
terminated the immigrant visa registration associated with the 
previously scheduled interview, and they have a new immediate relative 
petition; or (2) the alien has a new immediate relative petition filed 
on his or her behalf by a different petitioner.
8. Section 212.7(e)(4)(v)
    DHS initially proposed excluding all aliens who were in removal 
proceedings from the provisional unlawful presence waiver process, 
except those whose: (1) Removal proceedings had been terminated or 
dismissed; (2) Notices to Appear (NTAs) had been cancelled; or (3) 
removal proceedings had been administratively closed but subsequently 
were reopened to grant voluntary departure. See 77 FR at 19922. In this 
final rule, DHS has not used the initial proposed categories of aliens 
above. Rather, DHS has decided to allow aliens in removal proceedings 
to participate in this new provisional unlawful presence waiver process 
if their removal proceedings are administratively closed and have not 
been recalendared at the time of filing the Form I-601A. See section 
212.7(e)(4)(v). Aliens whose removal proceedings are terminated or 
dismissed are covered in the general population of aliens who are 
eligible to apply for a provisional unlawful presence waiver. Aliens 
who have had their NTAs cancelled by ICE are also covered in the 
general population of aliens who are eligible to apply for a 
provisional unlawful presence waiver, since their removal proceedings 
were never initiated through filing of an NTA with EOIR.
    Through this final rule, the Form I-601A and its accompanying 
instructions, and additional information published on the USCIS Web 
site, DHS also will notify such applicants that, if granted the 
provisional unlawful presence waiver, applicants should seek 
termination or dismissal of their removal proceedings. The request for 
termination or dismissal should be granted before they depart for their 
immigrant visa interviews to avoid possible delays in their immigrant 
visa processing or risk becoming ineligible for the immigrant visa 
based on another ground of inadmissibility. See section 212.7(e)(2). 
Finally, DHS has made conforming changes to the filing requirements in 
section 212.7(e)(5)(i) to include aliens who are in removal proceedings 
that are administratively closed and have not been recalendared at the 
time of filing the Form I-601A.\1\
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    \1\ DHS recognizes that this is a departure from the long-
standing principle in immigration law and policy that aliens must 
establish eligibility not only at the time of filing but also up 
until the time USCIS adjudicates the case. See, e.g., Matter of 
Isidro-Zamorano, 25 I&N Dec. 829, 830-31 (BIA 2012) (explaining the 
``well established'' principle that application for an immigration 
benefit is ``continuing'' and that eligibility is determined at the 
time of adjudication, not at the time of application). However, DHS 
believes that a departure from this general principle is permissible 
and warranted in this limited context, especially since the 
provisional unlawful presence waiver process is purely 
discretionary. Furthermore, the provisional unlawful presence waiver 
is not valid while the alien remains in the United States. It only 
takes effect after the alien departs from the United States, appears 
for his or her immigrant visa interview, and is determined by DOS to 
be otherwise eligible for an immigrant visa, in light of the 
approved I-601A provisional unlawful presence waiver.
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9. Section 212.7(e)(4)(ix)
    For operational reasons, DHS initially proposed rejecting 
applications filed by aliens who previously filed a Form I-601A with 
USCIS. DHS designed the provisional unlawful presence waiver process to 
streamline waiver and immigrant visa processing by closely tying 
adjudication of the Form I-601A to the National Visa Center (NVC) 
immigrant visa processing schedule. DHS considered the potential impact 
of multiple filings on this schedule, the possible delays to the 
immigrant visa process, and the potential for agency backlogs.
    Many commenters, however, expressed concern that limiting the 
program to one-time filings could potentially exclude individuals who 
otherwise would qualify for the provisional unlawful presence waiver.
    Upon consideration of these comments, DHS agrees that an alien 
could have compelling reasons for filing another provisional unlawful 
presence application, especially in cases where an alien's 
circumstances have changed or the alien was a victim of individuals or 
entities not authorized to practice immigration law. DHS agrees that a 
one-time filing limitation is too restrictive and is removing the 
single filing limitation. If an individual's provisional unlawful 
presence waiver request is denied or withdrawn, the individual may file 
a new Form I-601A, in accordance with the form instructions and with 
the required fees. The applicant's case must still be pending with DOS. 
In the case of a withdrawn Form I-601A, USCIS will not refund the 
filing fees because USCIS has already undertaken steps to adjudicate 
the case.
    Alternatively, an individual who withdraws his or her Form I-601A 
filing prior to final adjudication, or whose Form I-601A is denied, can 
apply for a traditional waiver by filing Form I-601, Application for 
Waiver of Grounds of Inadmissibility, with the USCIS Lockbox, after he 
or she attends the immigrant visa interview abroad and after DOS 
conclusively determines that the individual is inadmissible on a 
ground(s) that is waivable. DHS, therefore, has removed this provision 
from the final rule.
10. Section 212.7(e)(5)(ii)
    DHS corrected a typographical error in the prefatory language to 
this section, removing the term ``application'' the second time it 
appears in the paragraph. See section 212.7(e)(5)(ii).
11. Section 212.7(e)(5)(ii)(A)
    DHS proposed a list of rejection criteria for Forms I-601A filed at 
the Lockbox, including the criterion to reject for failure to pay the 
required or correct fee for the waiver application. See 77 FR at 19922. 
DHS inadvertently referenced the biometric fee as a basis for rejection 
in the supplementary information. See 77 FR at 19911. DHS has modified 
the regulatory text to make clear that a Form I-601A will only be 
rejected for failure to pay the required or correct application filing 
fee and not the biometric fee. See section 212.7(e)(5)(ii)(A).
12. Section 212.7(e)(5)(ii)(G)
    DHS proposed rejecting provisional unlawful presence waiver 
applications filed by aliens who were already scheduled for their 
immigrant visa interviews with DOS. See 77 FR at 19921. DHS has 
retained this requirement. DHS now adds language to the final rule to 
clarify when an alien is ineligible for a provisional unlawful presence 
waiver because of a previously scheduled immigrant visa interview.
    USCIS will first look at whether the scheduled immigrant visa 
interview is based on the approved immediate relative petition (I-130 
or I-360) that accompanies the Form I-601A. If it is, USCIS will then 
look at the Department of State's Consular Consolidated Database (CCD) 
to determine the date on which the Department of State initially

[[Page 539]]

acted to schedule the applicant for his or her immigrant visa interview 
(i.e., the date of scheduling itself and not the date and time the 
applicant must appear for the interview).
    If the date that the Department of State initially acted to 
schedule the immigrant visa interview is prior to the date of 
publication of this final rule, January 3, 2013, then the alien is 
ineligible to apply for a provisional unlawful presence waiver. If the 
date that Department of State initially acted to schedule the immigrant 
visa interview is on or after the publication date of this final rule, 
the alien is eligible to apply for a provisional unlawful presence 
waiver. The actual date and time that the alien is scheduled to appear 
for the interview is not relevant for the eligibility determination. 
This rule applies even if the alien failed to appear for his or her 
immigrant visa interview, cancelled the interview, or requested that 
the interview be rescheduled. Therefore, USCIS may reject or deny any 
Form I-601A filed by an alien if USCIS determines that the Department 
of State, prior to the date of publication of this final rule, 
initially acted to schedule an immigrant visa interview for the 
approved immediate relative petition upon which the Form I-601A is 
based. See section 212.7(e)(4)(iv).
    An alien who is ineligible to apply for a provisional unlawful 
presence waiver because of a previously scheduled immigrant visa 
interview may still qualify for a provisional unlawful presence waiver 
if he or she has a new DOS immigrant visa case because (1) DOS 
terminated the immigrant visa registration associated with the 
previously scheduled interview, and they have a new immediate relative 
petition; or (2) the alien has a new immediate relative petition filed 
on his or her behalf by a different petitioner. See section 
212.7(e)(5)(ii)(G).
13. Section 212.7(e)(9)
    DHS initially proposed that aliens who were denied a provisional 
unlawful presence waiver could not file a new Form I-601A. Instead, 
such aliens would have to leave the United States for their immigrant 
visa interviews and file a Form I-601, Application for Waiver of 
Grounds of Inadmissibility, after the Department of State determined 
they were inadmissible. Some commenters were concerned that limiting 
aliens to a single filing of an I-601A would potentially bar aliens 
from qualifying for a provisional unlawful presence waiver, especially 
when they may have experienced changed circumstances that would result 
in extreme hardship to the U.S. citizen spouse or parent. In light of 
these concerns, DHS has amended this final rule to allow aliens who are 
denied a provisional unlawful presence waiver to file another Form I-
601A, based on the original approved immigrant visa petition. Denial of 
an application for a provisional unlawful presence waiver is without 
prejudice to the alien filing another Form I-601A under paragraph (e) 
provided the alien meets all of the requirements. The alien's case must 
be pending with the Department of State, and the alien must notify the 
Department of State that he or she intends to file a new Form I-601A.
14. Section 212.7(e)(10)
    DHS has amended this provision to allow an applicant to withdraw a 
previously-filed provisional unlawful presence waiver application 
before final adjudication and file another Form I-601A, in accordance 
with the form instructions and with the required filing and biometric 
services fees. See section 212.7(e)(10).
15. Section 212.7(e)(14)(iv)
    DHS clarified the language in section 212.7(e)(14)(v) to specify 
that a provisional unlawful presence waiver is automatically revoked if 
the alien, at any time before or after the approval of the provisional 
unlawful presence waiver, or before the immigrant visa is issued, 
reenters or attempts to reenter the United States without being 
admitted or paroled. See section 212.7(e)(14)(iv).

C. Costs and Benefits

    This final rule is expected to result in a reduction of the time 
that U.S. citizens are separated from their immediate relatives, thus 
reducing the financial and emotional hardship for these families. In 
addition, the Federal Government should achieve increased efficiencies 
in processing immigrant visas for individuals subject to the unlawful 
presence inadmissibility bars under INA section 212(a)(9)(B), 8 U.S.C. 
1182(a)(9)(B). We expect costs to the Federal government of the 
provisional unlawful presence waiver process to be offset by the 
additional fee revenue collected for form processing.
    DHS estimates the discounted total ten-year cost of this rule will 
range from approximately $196 million to approximately $538.1 million 
at a seven percent discount rate. Compared to the current waiver 
process, this rule requires that provisional unlawful presence waiver 
applicants submit biometric information. Included in the total cost 
estimate is the cost of collecting biometrics, which DHS estimates will 
range from approximately $32.9 million to approximately $56.6 million 
discounted at seven percent over ten years. Also included in the total 
cost estimate are the costs faced by those who choose to file new 
provisional unlawful presence waiver applications based on the same 
approved immediate relative petition if their original Form I-601A is 
denied or withdrawn, which DHS decided to allow in response to public 
comments to the proposed rule. Individuals that file a new Form I-601A 
will still face the biometric and Form I-601A filing fees and 
opportunity costs, which we estimate will range from approximately 
$56.2 million to approximately $96.7 million discounted 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. To the extent 
that this rule induces new demand for immediate relative immigrant 
visas, additional immigration benefit forms, such as the Petition for 
Alien Relative, Form I-130, will be filed compared to the pre-rule 
baseline. These additional forms will involve fees being paid by 
applicants to the Federal Government for form processing and additional 
opportunity costs of time being incurred by applicants to provide the 
information required by the forms. The cost estimate for this rule also 
includes the impact of this induced demand, which DHS estimates will 
range from approximately $106.9 million to approximately $384.8 million 
discounted at seven percent over ten years.
    Estimates for the costs of the rule were developed assuming that 
current demand for requesting waivers of grounds of inadmissibility 
based only on unlawful presence is constrained because of concerns that 
families may endure lengthy separations under the current system. Due 
to uncertainties as to the degree of the current constraint of demand, 
DHS used a range of constraint levels with corresponding increases in 
demand to estimate the costs. The costs for each increase in demand are 
summarized below.

[[Page 540]]



                           Estimated Increase in Costs With an Increase in Demand of:
----------------------------------------------------------------------------------------------------------------
                                                 25%               50%               75%               90%
----------------------------------------------------------------------------------------------------------------
                                  Cost of Biometrics Collection and Processing
----------------------------------------------------------------------------------------------------------------
10 year Costs Undiscounted..............       $46,803,460       $59,088,534       $71,373,907       $78,746,295
Total 10 year Costs Discounted at 7%....        32,907,683        42,030,423        51,153,460        56,628,050
Total 10 year Costs Discounted at 3%....        39,926,220        50,653,297        61,380,675        67,818,069
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                   Cost of Biometrics Collection and Processing and Form I-601A for Re-filers
----------------------------------------------------------------------------------------------------------------
10 year Costs Undiscounted..............       $79,942,420      $100,924,521      $121,908,872      $134,499,783
Total 10 year Costs Discounted at 7%....        56,207,656        71,788,866        87,371,675        96,721,450
Total 10 year Costs Discounted at 3%....        68,195,707        86,516,943       104,840,098       115,834,193
----------------------------------------------------------------------------------------------------------------
                  Costs of Applications for the Additional (Induced) Demand for Immigrant Visas
----------------------------------------------------------------------------------------------------------------
10 year Costs Undiscounted..............      $143,931,692      $287,854,640      $431,775,838      $518,143,249
Total 10 year Costs Discounted at 7%....       106,881,772       213,757,395       320,631,489       384,766,730
Total 10 year Costs Discounted at 3%....       125,678,197       251,348,945       377,018,045       452,432,274
----------------------------------------------------------------------------------------------------------------
                                          Total Costs to New Applicants
----------------------------------------------------------------------------------------------------------------
10 year Costs Undiscounted..............      $270,677,572      $447,867,695      $625,058,617      $731,389,326
Total 10 year Costs Discounted at 7%....       195,997,110       327,576,683       459,156,625       538,116,229
Total 10 year Costs Discounted at 3%....       233,800,123       388,519,186       543,238,818       636,084,535
----------------------------------------------------------------------------------------------------------------

II. Legal Authority

    The Homeland Security Act of 2002, Public Law 107-296 (Homeland 
Security Act of 2002), section 102, 116 Stat. 2135, 6 U.S.C. 112, and 
section 103 of the INA, 8 U.S.C. 1103, charge the Secretary with 
administration and enforcement of the immigration and naturalization 
laws. The Secretary is implementing this provisional unlawful presence 
waiver process under the broad authority to administer DHS and the 
authorities provided under the Homeland Security Act of 2002, the 
immigration and nationality laws, and other delegated authority. 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. The fee schedule for 
provisional unlawful presence waiver applications is found at 8 CFR 
103.7(b)(1)(i)(AA).

III. Background

A. Notice of Intent

    On January 9, 2012, DHS published a notice in the Federal 
Register--Provisional Waivers of Inadmissibility for Certain Immediate 
Relatives of U.S. Citizens, 77 FR 19902 (Jan. 9, 2012)--announcing its 
intent to change the current process for certain applications for 
waivers of inadmissibility filed in connection with an immediate 
relative immigrant visa application. The notice explained the proposed 
process that DHS was considering and that DHS would further develop a 
proposal, which it would ultimately finalize through the rulemaking 
process.
    On January 10, 2012, USCIS conducted a stakeholder engagement to 
discuss the Notice of Intent. More than 900 people participated via 
telephone and in person. USCIS provided an overview of how the proposed 
process changes may affect filing and adjudication. USCIS also 
addressed questions from stakeholders. Topics covered included 
eligibility, procedures, and consequences of an approval or denial of a 
provisional unlawful presence waiver.

B. Proposed Rule

    On April 2, 2012, DHS published a proposed rule in the Federal 
Register, proposing to amend the regulations to revise the process for 
applying for waivers of inadmissibility. See 77 FR 19902. DHS received 
over 4,000 public comments to the proposed rule. Comments were 
submitted by individuals, immigrant advocacy groups, attorneys, 
accredited representatives, religious organizations and leaders, 
individuals in academia, Members of Congress, and members of the media. 
Some comments also were submitted through mass mailing campaigns or 
petitions, expressing support for, or opposition to, the provisional 
unlawful presence waiver process. DHS counted each petition or mass 
mailing as one comment, but acknowledged the number of signatures 
associated with each comment.
    Opinions on the proposed rule varied. A large number of comments 
(3,442) were favorable and supported the implementation of the new 
provisional unlawful presence waiver process. A few hundred commenters 
(430) opposed the proposed rule, in many instances because of a 
misperception that the provisional unlawful presence waiver process 
would grant legal status to aliens not lawfully present in the United 
States and allow them to remain in the United States permanently. DHS 
also received 310 comments, some of which did not address any aspect of 
the proposed rule or reflect a commenter's support or opposition to the 
proposed rule. These 310 commenters also did not make any specific 
suggestions that related to the proposed rule. Finally, DHS received a 
comment in the form of a petition signed by 118,593 individuals who 
opposed the proposed rule; the signed petition, however, reflected the 
same misperception \2\ about the provisional unlawful presence waiver 
process as seen in some of the comments from others who opposed the 
rule.
---------------------------------------------------------------------------

    \2\ The petition incorrectly summarized the substance and nature 
of the proposed rule. The petition also erroneously concluded that 
the provisional unlawful presence waiver process granted aliens not 
lawfully present in the United States a temporary legal status in 
the United States and put them on the ``fast track'' to permanent 
legal status--neither of which can occur under this final rule.
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    In preparing this final rule, DHS considered these public comments 
and other relevant materials contained in the docket. All comments may 
be reviewed at the Federal Docket Management System (FDMS) at http://

[[Page 541]]

www.regulations.gov, docket number USCIS-2012-0003.

C. Final Rule

    This final rule adopts most of the regulatory amendments set forth 
in the proposed rule without change. The rationale for the proposed 
rule and the reasoning provided in its preamble remain valid with 
respect to these regulatory amendments. DHS also has made several 
clarifying changes to the regulatory text, based on suggestions from 
commenters and on policy decisions made after publication of the 
proposed rule. The changes to the regulatory text are summarized in 
Section V below. This final rule also adopts, without change, the 
regulatory amendment clarifying 8 CFR 212.7(a)(1) and (3). This final 
rule does not address comments seeking changes in U.S. laws, 
regulations, or agency policies that are unrelated to the provisional 
unlawful presence waiver process or the clarifying amendments to 8 CFR 
212.7(a). This final rule also does not change the procedures or 
policies of other DHS components or federal agencies, or resolve issues 
outside the scope of this rulemaking. After assessing the effectiveness 
of the provisional unlawful presence waiver process and its operational 
impact, DHS, in consultation with DOS and other affected agencies, will 
consider expanding the provisional unlawful presence waiver process in 
the future.

IV. Public Comments on the Proposed Rule \3\
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    \3\ USCIS received some comments prior to the official comment 
period, including two letters signed by over 200 immigrant advocate 
organizations. Most of the concerns or suggestions made by the pre-
publication commenters were captured through other public comments 
submitted during the official period.
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A. Summary of Public Comments

    The 60-day public comment period for the proposed rule ended on 
June 1, 2012. Commenters included individuals, immigrant advocacy 
groups, attorneys, and accredited representatives, as well as religious 
organizations and leaders, individuals in academia, Members of 
Congress, and members of the media. Some comments also were submitted 
through mass mailing campaigns or petitions, expressing support for, or 
opposition to, the provisional unlawful presence waiver process. The 
majority of comments came from supporters of the proposed rule who 
agreed that it would promote family unity and reduce the length of time 
immediate relatives (spouses, children, and parents of a U.S. citizen 
over the age of 21 years) would be separated from the U.S. citizen 
petitioner. Many also agreed that it would relieve the financial 
burdens that the current process places on American families, encourage 
individuals to obtain a lawful status, and benefit the United States 
generally. Numerous commenters shared their personal stories about the 
hardships they experienced after being separated from their loved ones, 
and applauded DHS for taking a step to reduce such scenarios in the 
future.
    Several commenters strongly disagreed with the proposed provisional 
unlawful presence waiver process, arguing that the Executive Branch did 
not have the legal authority to make the proposed changes without 
approval from Congress. Other commenters argued that the proposed rule 
was unconstitutional. Many commenters who opposed the change believed 
that the current immigration laws are not properly enforced and that 
DHS favors illegal aliens over legal immigrants. Some commenters also 
believed that DHS was rewarding illegal behavior by publishing this 
rule. These commenters stated that this rule would only encourage 
illegal immigration and fraud, would be harmful to the American 
economy, and that the Federal Government's money would be better 
invested in assisting U.S. citizens and legal immigrants, rather than 
illegal aliens and their U.S. citizen families. A few commenters 
opposed the proposed rule because they believed that it is unfair to 
exclude individuals outside the United States from eligibility for the 
proposed provisional unlawful presence waiver process or because the 
requirements articulated in the rule (for example, the lack of 
protection from removal) were too stringent or not helpful.
    DHS has reviewed all of the public comments received in response to 
the proposed rule and addresses them in this final rule. DHS's 
responses are grouped by subject area, with a focus on the most common 
issues and suggestions raised by the commenters. DHS received few or no 
comments on the following topics: (1) The rejection criteria, (2) 
withdrawals, and (3) the validity of an approved provisional unlawful 
presence waiver.

B. Legal Authority To Implement the Provisional Unlawful Presence 
Waiver Process

    Several commenters questioned DHS's legal authority to implement 
the provisional unlawful presence waiver process. Commenters argued 
that the proposed rule was unconstitutional and that it was the role of 
Congress, not the Executive Branch, to create immigration laws and 
policy. DHS disagrees with the view that this rule exceeds the 
Secretary's legal authority.
    Congress has plenary authority over immigration and naturalization 
and, through its legislative power, 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 an uniform Rule of Naturalization,' 
U.S. Const., Art. I, Sec.  8, cl. 4, 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, is charged with implementing 
the laws passed by Congress. Through section 102 of the Homeland 
Security Act of 2002, 106 Stat. 2135, 6 U.S.C. 112, and INA section 
103, 8 U.S.C. 1103, Congress has specifically charged the Secretary 
with the administration and enforcement of the immigration and 
naturalization laws. The Secretary is authorized to promulgate rules 
and ``perform such other acts as he deems necessary for carrying out 
his authority'' based upon considerations rationally related to the 
immigration laws. INA section 103(a)(3), 8 U.S.C. 1103(a)(3). The 
Secretary has broad discretion to determine the most effective way to 
administer the laws. See, e.g., 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''); see also Arizona, 132 S. Ct. 
at 2499 (noting ``broad discretion exercised by immigration officials'' 
under the immigration laws).
    The provisional unlawful presence waiver process is not a 
substantive change to the immigration laws but a procedural change in 
the way that a specific type of waiver application can be filed with 
USCIS. Generally, individuals who are required by law to obtain a 
waiver of inadmissibility must apply for the waiver through the 
procedures prescribed by the Secretary, as permitted under the Homeland 
Security Act and the INA. Current waiver filing procedures for an 
individual processing an immigrant visa application abroad at a 
consular post require the individual to apply for a waiver of grounds 
of inadmissibility

[[Page 542]]

while outside the United States and after his or her immigrant visa 
interview. Under this final rule, DHS is permitting a category of 
aliens--certain immediate relatives of U.S. citizens who will be 
pursuing an immigrant visa application at a consular post abroad--to 
file an application for a provisional unlawful presence waiver of 
inadmissibility due to unlawful presence under INA section 
212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i), while still in the United 
States. By creating these new filing procedures, DHS anticipates that 
the immigrant visa waiver process will become more efficient for the 
U.S. Government and for U.S. citizens and their immediate relatives. It 
will reduce the length of time American families are separated while 
the immigrant visa applicant is going through the immigrant visa 
process. The applicant may remain in the United States with his or her 
family until the time the applicant must depart from the United States 
to attend his or her immigrant visa interview.

C. Eligibility for the Provisional Unlawful Presence Waiver

1. Preference Categories
    A large number of commenters focused on who is eligible to 
participate in the provisional unlawful presence waiver process. Some 
commenters believed the proposed rule was too restrictive and excluded 
many individuals who also could benefit from the new process. Others 
asked why DHS was not expanding eligibility to all families and their 
close immediate or distant relatives such as in-laws, grandparents, 
aunts and uncles. The commenters also asked why DHS did not include all 
family-sponsored or employment-based immigrants, especially if aliens 
in a particular immigrant visa category had current visa availability. 
The commenters argued that there was no discernible difference between 
immediate relatives and preference aliens who have current visa 
availability. The commenters also indicated that the hardships of 
lengthy family separation are just as compelling for LPR families as 
they are for U.S. citizen families. The commenters also asked that, if 
DHS will not expand the provisional unlawful presence waiver process to 
all LPR families, DHS should at least consider expanding the 
provisional unlawful presence waiver process to LPRs who have U.S. 
citizen children.
    Several Congressional commenters argued that there was no 
compelling, legal, operational or other rationale that would justify 
DHS's decision to limit the provisional unlawful presence waiver 
process to immediate relatives. The Congressional commenters stated 
that it was unambiguous that Congress intended the unlawful presence 
waiver under section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v), to be 
available to immediate relatives and certain preference aliens, 
including unmarried adult children of U.S. citizens and LPR spouses and 
children. The Congressional commenters thought that DHS's distinction 
could not be justified based on DHS's reading of congressional intent. 
Instead, the Congressional commenters argued that DHS would be ignoring 
clear congressional intent and cause the provisional unlawful presence 
waiver process to be underutilized by entire categories of persons for 
whom the waiver is now available. Finally, many commenters believed 
that expanding the provisional unlawful presence waiver process to 
preference categories would offer more measurable benefits to USCIS and 
DOS and would facilitate legal immigration by encouraging a more 
sizeable population to seek to adjust their status.
    Suggestions for additional eligibility criteria or categories of 
eligible aliens varied but most commenters asked DHS to consider 
expanding eligibility to: (1) All preference categories generally; (2) 
unmarried sons and daughters of U.S. citizens who are over the age of 
21 years; (3) married sons and daughters or siblings of U.S. citizens; 
(4) spouses and minor children of LPRs; (5) parents of minor U.S. 
citizen children; (6) children who were brought to the United States 
when young, such as those aliens who would qualify under the proposed 
Development, Relief and Education for Alien Minors (DREAM) Act \4\; (7) 
preference aliens who have lived in the United States for more than 10 
years; (8) family members of personnel in the U.S. Armed Forces, 
including the National Guard, reserves, and veterans; and (9) any 
preference category with current visa availability.
---------------------------------------------------------------------------

    \4\ The DREAM Act, a bill that aims to permit children of 
undocumented immigrants, who were brought to the United States at a 
young age, to obtain a legal status if they meet certain criteria. 
Versions of the DREAM Act have been introduced and reintroduced on 
several occasions, including most recently in May 2011, but none has 
passed Congress to date. See, e.g., Development, Relief and 
Education for Alien Minors Act of 2011, S. 952, 112th Cong.
---------------------------------------------------------------------------

    The focus of the provisional unlawful presence waiver process is to 
reduce the impact of the current waiver process on U.S. citizens by 
reducing the time U.S. citizens are separated from their immediate 
relatives. DHS chose to limit eligibility to immediate relatives of 
U.S. citizens not only because the immigrant visas for this category 
are always available, but also because it is consistent with Congress' 
policy choice to prioritize family reunification of immediate relatives 
of U.S. citizens over other categories of aliens. For example, family-
sponsored and employment-based categories have annual numerical limits, 
whereas there are no numerical limits on the availability of immigrant 
visas to immediate relatives. Compare INA section 201(b)(2)(A)(i), 8 
U.S.C. 1151(b)(2)(A)(i), with INA section 203(a), (b), 8 U.S.C. 
1153(a), (b). Focusing on U.S. citizens as part of this discretionary 
process also is consistent with permissible distinctions that may be 
drawn between U.S. citizens and aliens and between classes of aliens in 
immigration laws and policies. See, e.g., Fiallo, 430 U.S. at 792; 
Mathews v. Diaz, 426 U.S. 67, 81 (1976).
    DHS also believes that focusing the provisional unlawful presence 
waiver process on immediate relatives of U.S. citizens is consistent 
with recognized government interests in encouraging eligible long-time 
LPRs to naturalize so that their spouses, parents, and children under 
the age of 21 years can become immediate relatives and also benefit 
from this new process. See, e.g., City of Chicago v. Shalala, 189 F.3d 
598, 608 (7th Cir. 1999).
    Family-sponsored and employment-based preference categories have 
annual numerical limits. Therefore, preference categories carry an 
inherent risk that they may become oversubscribed; if an individual's 
immigrant visa is based upon a preference category, his or her 
immigrant visa may become unavailable at any given time upon 
oversubscription of the preference category. Retrogression of visa 
availability can have a direct, adverse impact on agency backlogs and 
processing.
    DHS appreciates the comments from the public on these issues and 
has given them serious consideration. DHS will consider future 
expansion of the program after DHS and DOS have assessed the 
effectiveness of the provisional unlawful presence waiver process and 
the operational impact it may have on existing agency processes and 
resources See Beach Commc'ns v. FCC, 508 U.S. 307, 316 (1993) 
(observing that policymakers ``must be allowed leeway to approach a 
perceived problem incrementally''). For these reasons, DHS has not 
adopted the commenters' suggestions. At this time, the provisional 
unlawful presence waiver process will remain available only to 
individuals who are immediate relatives of U.S. citizens (i.e., 
spouses, children, and parents (if the U.S. citizen

[[Page 543]]

is at least 21 years of age)), as defined in INA section 201(b), 8 
U.S.C. 1151(b).
2. Aliens Outside the United States
    Numerous commenters asked DHS to extend eligibility to individuals 
who are currently outside the United States. Commenters argued that 
immediate relatives who had already departed from the United States to 
consular process or who voluntarily left the United States to avoid the 
consequences of removal should not be punished for their actions. Some 
commenters also felt that it was unfair to speed up the process for 
individuals residing illegally in the United States, while not doing 
anything for those individuals who departed the United States 
voluntarily to comply with the rules. Many commenters shared their 
personal stories about the difficulties of long-term separation from 
their spouses and the impact it had on them and their children. Most 
commenters wanted their family members abroad to have the opportunity 
to participate in a faster, more effective process or for DHS to at 
least provide some other form of relief to overcome the effects of the 
3-year and 10-year bars for these individuals.
    DHS recognizes that there are many difficulties faced by U.S. 
citizens when their immediate relatives must obtain waivers while 
outside the United States. DHS, however, believes that creating a 
provisional unlawful presence waiver process abroad would be 
duplicative of DOS's current immigrant visa processes and USCIS's 
current Form I-601, Application for Waiver of Grounds of 
Inadmissibility waiver process, which would not be an efficient use of 
agency resources.
    To alleviate some of the delays in overseas waiver processing, 
USCIS recently centralized Form I-601 filings such that individuals 
located outside the United States now file the Form I-601 in the United 
States where USCIS has sufficient resources at its service centers to 
accommodate filing surges.\5\ Applicants who need waivers are no longer 
required to schedule a ``waiver filing'' appointment with the U.S. 
Embassy or consulate, which in some cases required applicants to wait 
up to two months just for these waiver filing appointments. 
Centralization of Form I-601 filings from abroad should significantly 
reduce the time individuals must spend abroad, waiting to receive 
immigrant visas so they can return to the United States. Centralizing 
Form I-601 filings in this manner also will significantly reduce the 
current backlog that exists at USCIS international offices. In 
addition, as of June 4, 2012, when USCIS began to implement centralized 
filing of Forms I-601 for individuals outside of the United States, 
USCIS had approximately 10,200 cases pending. USCIS has dedicated 
additional resources on a temporary basis to expeditiously process the 
cases filed prior to centralization, as well as those that individuals 
continue to file at the USCIS Field Office in Ciudad Juarez, Mexico 
through December 4, 2012.\6\ USCIS anticipates that it will complete 
processing of all cases pending in USCIS offices abroad within 
approximately six months of the effective date of this rule.
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    \5\ As of June 4, 2012, most individuals abroad, who have 
applied for certain visas and have been found inadmissible by a DOS 
consular officer, must mail Forms I-601 directly to a USCIS Lockbox 
facility. For more information, please visit the USCIS Web site at 
www.uscis.gov.
    \6\ USCIS provided a transition period during which individuals 
who are processing their immigrant visa applications through the 
U.S. consulate in Ciudad Juarez, Mexico, could file their I-601 
applications either with the Lockbox facility or at the USCIS Ciudad 
Juarez Field Office. This transition period ended on December 4, 
2012.
---------------------------------------------------------------------------

    For these reasons, DHS did not adopt the commenters' suggestions, 
and individuals who are already outside of the United States must 
pursue a waiver of inadmissibility through the current Form I-601 
process. The provisional unlawful presence waiver process will remain 
available only to those individuals who are currently in the United 
States and will be departing for consular processing abroad.
3. Aliens Who Cannot Establish Extreme Hardship to a U.S. Citizen 
Spouse or Parent
    Several commenters objected to the exclusion from the provisional 
unlawful presence waiver process of immediate relatives of U.S. 
citizens who could establish extreme hardship only to an LPR spouse or 
parent. Commenters argued that this restriction limited the number of 
individuals who could benefit from the provisional unlawful presence 
waiver process and that there was no rational basis for the limitation. 
Some also believed that applicants will submit ``weak'' extreme 
hardship claims relating to a qualifying U.S. citizen relative when the 
real hardship would be to an LPR spouse or parent. Commenters also 
asked that DHS allow individuals to make a showing of extreme hardship 
to their U.S. citizen children.
    DHS has carefully considered these comments and the recommended 
changes. However, DHS will not adopt the suggested changes at this 
time. As stated in the proposed rule, a primary purpose for creating 
the provisional unlawful presence waiver process is to reduce the 
amount of time U.S. citizens are separated from their immediate 
relatives. Focusing on hardship to U.S. citizens is consistent with 
permissible distinctions that may be drawn between U.S. citizens and 
aliens. It also is consistent with the Secretary's authority to 
administer the immigration laws and determine the most efficient means 
for effectuating the provisional unlawful presence waiver process. See 
77 FR at 19908. Finally, DHS cannot include children as qualifying 
relatives for purposes of the extreme hardship determination because 
the statute only permits a showing of extreme hardship to a spouse or 
parent as a basis for granting the waiver. See INA section 
212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v). Only Congress has the power 
to amend the immigration laws to add other individuals who can be 
qualifying relatives for purposes of the extreme hardship 
determination.
    DHS is open to considering expanding the provisional unlawful 
presence waiver process to include lawful permanent residents as 
qualifying relatives after DHS has a better understanding of the impact 
of the provisional unlawful presence waiver process on agency resources 
and operations.
4. Aliens in Removal Proceedings
    Numerous commenters asked DHS to expand eligibility for the 
provisional unlawful presence waiver to include aliens in removal 
proceedings. Some commenters suggested that DHS include anyone who is 
in removal proceedings, without further qualifications. Others 
suggested that DHS include aliens in removal proceedings if they: (1) 
Were granted prosecutorial discretion; (2) were the primary caretakers 
for U.S. citizens; (3) were previously granted voluntary departure; or 
(4) had their cases administratively closed. Commenters also believed 
that the provisional unlawful presence waiver process undermines DHS's 
ongoing prosecutorial discretion initiative. A few commenters also said 
DHS should eliminate the requirement that aliens with administratively 
closed cases pursue voluntary departure because it was too complicated 
and could result in separation from a U.S. citizen spouse, parent, or 
child if the alien fails to comply with the terms and conditions of 
voluntary departure. Several commenters criticized the use of voluntary 
departure, arguing that the time frames for voluntary departure in many 
instances would be too short (60 or 120 days) to cover the time needed

[[Page 544]]

for the adjudication of the Form I-601A and the time the applicant 
needs to prepare for departure after approval of the provisional 
unlawful presence waiver request. Other commenters suggested that DHS 
include any alien who has been issued a Notice to Appear (NTA). They 
reasoned that, if the purpose of the provisional unlawful presence 
waiver is to avoid hardship to U.S. citizens, it should make no 
difference whether or not an NTA has been issued. One commenter also 
requested that DHS allow individuals who have a fear of returning to 
their home countries to participate in the provisional unlawful 
presence waiver process.
    Several immigrant advocacy groups asked DHS to allow individuals to 
file the provisional unlawful presence waiver application before 
termination of removal proceedings or a grant of voluntary departure. 
The commenters argued that allowing individuals to apply for the 
provisional unlawful presence waiver while still in proceedings would 
ensure that USCIS, and not U.S. Immigration and Customs Enforcement 
(ICE) or U.S. Customs and Border Protection (CBP), is the first agency 
to determine if an applicant qualifies for the waiver. If the 
applicant's provisional unlawful presence waiver is approved, then the 
applicant could seek termination or dismissal of his or her case. The 
advocacy groups stated that many individuals subject to removal, 
whether detained or non-detained, were unrepresented and could be 
confused by the various barriers to filing the provisional unlawful 
presence waiver application. They also argued that allowing an 
individual to file the provisional unlawful presence waiver application 
while proceedings are pending would ensure that unrepresented aliens 
are not left with having to choose between seeking avenues of relief in 
removal proceedings and pursuing an immigrant visa abroad.
    Finally, one commenter asked DHS to clarify the three options noted 
in the proposed rule at 8 CFR 212.7(e)(3)(v) through 212.7(e)(3)(vii) 
(i.e., termination/dismissal, cancellation of NTA, administrative 
closure with voluntary departure) for aliens in removal proceedings. 
The commenter noted that two of the provisions, 8 CFR 212.7(e)(3)(v) 
(termination/dismissal) and 212.7(e)(3)(vii) (administrative closure 
with voluntary departure) in the proposed rule, conflicted because 
aliens who chose to pursue voluntary departure would need to have their 
cases recalendared before an IJ. Recalendaring of the alien's case 
would result in the alien being barred under 8 CFR 212.7(e)(3)(v), 
because the removal proceedings would still be pending and not 
``terminated or dismissed.'' The commenter also recommended that the 
final rule make clear that USCIS can only accept a provisional unlawful 
presence waiver once DHS, through ICE's Office of Chief Counsel, 
affirmatively consents to it in the removal proceedings.
    After careful consideration of all comments on this issue, DHS has 
decided to limit eligibility for the provisional unlawful presence 
waiver process to individuals whose removal proceedings are 
administratively closed and have not been recalendared at the time of 
filing the Form I-601A. Under its prosecutorial discretion (PD) 
policies, ICE has been reviewing cases pending before EOIR and all 
incoming cases to ensure that they are aligned with the agency's civil 
enforcement priorities and that ICE is effectively using its finite 
resources. For cases that ICE determines are not enforcement 
priorities, it exercises its discretion where appropriate, typically by 
moving for administrative closure. See Memorandum by ICE Director John 
T. Morton in his June 17, 2011 memorandum and the subsequent November 
17, 2011 directive from Peter S. Vincent, Principal Legal Advisor to 
all attorneys at the ICE Office of Chief Counsel. DHS, however, is not 
limiting eligibility solely to cases administratively closed under the 
ICE case-by-case review initiative, but also is allowing any alien 
whose case is administratively closed and has not been recalendered at 
the time of filing the Form I-601A to participate in the provisional 
unlawful presence waiver process. In addition, individuals in removal 
proceedings whose cases are deferred pursuant to the Deferred Action 
for Childhood Arrivals (DACA) \7\ process may also request that ICE 
seek administrative closure once USCIS defers action in their cases.
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    \7\ On June 15, 2012, the Secretary of Homeland Security issued 
a memorandum to USCIS, CBP, and ICE, regarding the exercise of 
prosecutorial discretion with respect to certain individuals who 
came to the United States as children. See the USCIS Web site--
www.uscis.gov--for more information about the DACA process.
---------------------------------------------------------------------------

    If the Form I-601A is approved for an alien whose proceedings have 
been administratively closed, the alien should seek termination or 
dismissal of the proceedings, without prejudice, by EOIR. The request 
for termination or dismissal should be granted before the alien departs 
for his or her immigrant visa interview abroad. Applicants who leave 
the United States before their removal proceedings are terminated or 
dismissed may experience delays in their immigrant visa processing or 
risk becoming ineligible for the immigrant visa based on another ground 
of inadmissibility, such as INA section 212(a)(6)(B), 8 U.S.C. 
1182(a)(6)(B) (failure to attend a removal proceeding without 
reasonable cause), or INA section 212(a)(9)(A), 8 U.S.C. 1182(a)(9)(A) 
(aliens who have been ordered removed or who depart from the United 
States while an order of removal is outstanding). See Matter of 
Sanchez-Herbert, 26 I&N Dec. 43 (BIA 2012) (holding that an IJ is 
required to issue an in absentia removal order (rather than terminating 
proceedings) even though the alien previously had departed from the 
United States, if the alien had proper notice of the hearing and DHS 
establishes the alien's removability). ICE intends to work with 
individuals to facilitate the timely termination or dismissal of an 
individual's removal proceedings once he or she obtains a provisional 
unlawful presence waiver.
    Focusing on this subset of aliens in removal proceedings is 
consistent with the Department's established enforcement priorities. 
Individuals who received administrative closure are likely individuals 
whom ICE or EOIR has determined, on a case-by-case basis or as a matter 
of policy, to be non-enforcement priorities. This includes individuals 
whose cases are deferred through the DACA process. Given that these 
individuals have been determined to not be enforcement priorities 
because of their compelling equities (e.g., their long-term presence in 
the United States or their connection to U.S. citizen relatives), DHS 
determined that they should be able to participate in the provisional 
unlawful presence waiver process. DHS may consider expanding 
eligibility for the provisional unlawful presence waiver process to 
other subsets of aliens in removal proceedings in the future and after 
implementation of this final rule.
    Aliens whose cases are deferred, whether authorized by ICE or by 
USCIS through approval of a Form I-821D, Consideration of Deferred 
Action for Childhood Arrivals, must meet all requirements under 8 CFR 
212.7(e) to receive a provisional unlawful presence waiver. Deferred 
action does not override or modify the eligibility requirements 
specified in this final rule. Thus, aliens whose cases have been 
deferred but have final orders of removal or other grounds of 
inadmissibility beyond unlawful presence will remain ineligible for a 
provisional unlawful presence waiver.

[[Page 545]]

5. Aliens With Final Orders of Removal and Previously Removed
    Numerous commenters requested that DHS allow aliens with final 
orders of removal to participate in the provisional unlawful presence 
waiver process. The commenters offered a variety of suggestions, many 
of which came out of their own personal circumstances. For example, 
some commenters suggested that DHS include aliens with final removal 
orders who: (1) Are currently detained pending removal; (2) had their 
removal orders temporarily suspended; (3) are still in the United 
States and had final orders of removal issued within the last five to 
10 years or, alternatively, issued more than 10 years ago; (4) were 
determined by DHS to warrant a favorable exercise of prosecutorial 
discretion; (5) were previously granted voluntary departure; (6) were 
granted voluntary departure but overstayed by 10 years; (7) are subject 
to in absentia final orders of removal due to ineffective assistance of 
counsel; (8) have been removed for a noncriminal ground of 
inadmissibility; (9) have obtained advanced consent to reapply for 
admission to the United States; or (10) were previously removed, 
regardless of whether the alien is abroad or still inside the United 
States. A few commenters indicated that those with final orders of 
removal should be included if they are married to U.S. citizens and 
have children. Most commenters stated that U.S. citizen family members 
of aliens with final orders of removal face the same hardships as those 
with relatives subject to inadmissibility based on unlawful presence in 
the United States.
    DHS considered these suggestions and has concluded that it will not 
expand the provisional unlawful presence waiver process to include 
aliens with final removal orders. Generally, aliens who have 
outstanding final orders of removal may be inadmissible on a variety of 
grounds other than unlawful presence, such as criminal offenses (INA 
section 212(a)(2), 8 U.S.C. 1182(a)(2)) and fraud and misrepresentation 
(INA section 212(a)(6)(C), 8 U.S.C. 1182(a)(6)(C)). In addition, any 
alien who is subject to a final order of removal, decides to leave the 
United States, and subsequently seeks admission, is inadmissible as an 
alien with a prior removal under INA section 212(a)(9)(A), 8 U.S.C. 
1182(a)(9)(A). Similarly, any alien who has been ordered removed or who 
has been unlawfully present in the United States for an aggregate 
period of a year or more and subsequently attempts to enter or reenter 
the United States without being admitted is inadmissible under INA 
section 212(a)(9)(C), 8 U.S.C. 1182(a)(9)(C), and may have his or her 
final order of removal reinstated under INA section 241(a)(5), 8 U.S.C. 
1231(a)(5). The provisional unlawful presence waiver is only available 
to an alien who, upon departure from the United States, would be 
inadmissible only due to accrual of unlawful presence under INA section 
212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i). Thus, a large percentage of 
aliens in removal proceedings will not be eligible for a provisional 
unlawful presence waiver. As a result, DHS has concluded that, because 
the success of this new provisional unlawful presence waiver process 
relies on its efficient, streamlined approach and close coordination 
with the NVC, the provisional unlawful presence waiver process will not 
be expanded to include aliens with final removal orders.
6. Aliens With Scheduled Immigrant Visa Interviews
    Several commenters asked DHS to include aliens in the provisional 
unlawful presence waiver process regardless of whether they had an 
immigrant visa interview scheduled in the past. Several commenters 
objected to this ground of ineligibility, arguing that it was 
irrational and served no purpose or was arbitrary, capricious and 
cruel. Several commenters stated that many individuals already had 
cancelled their immigrant visa interviews after publication of the 
Notice of Intent on January 9, 2012 (77 FR 19902). An immigrant 
advocacy group asked DHS to include applicants with previously 
scheduled interviews. The group acknowledged that allowing such 
applicants to reschedule immigrant visa interviews would create an 
additional administrative burden on DOS, but believed that it would 
ensure equity among those immediate relatives seeking to legalize their 
status while minimizing the length of time they are separated from 
their families. The advocacy group also believed that failure to 
include this group would only create confusion and ultimately 
ineligibility for the very individuals who the rule is supposed to 
help.
    Several commenters suggested that DOS return the immigrant visa 
application packet to the NVC once an alien files a provisional 
unlawful presence waiver. Another commenter suggested that the 
petitioner should be allowed to fly to the consulate abroad, retrieve 
the immigrant visa application packet, and return it to the NVC so DHS 
could adjudicate the waiver and the NVC could match the immigrant visa 
application packet to the approved provisional unlawful presence 
waiver. One commenter suggested that aliens should be allowed to 
resubmit the immigrant visa application package to the NVC so that they 
could file the provisional unlawful presence waiver application. Some 
commenters also asked DHS to give individuals still in the United 
States the option to either postpone their immigrant visa interviews so 
they could file the provisional unlawful presence waiver or proceed 
with consular processing.
    Several commenters were concerned that the time periods for filing 
and adjudication of a provisional unlawful presence waiver application, 
filing of the immigrant visa application, and DOS scheduling of the 
immigrant visa interview were too short. The commenters believed that 
it created timing issues for immigration law practitioners in terms of 
advising their clients on filing the Form I-601A and paying the 
immigrant visa fee. The commenters stated that once the immigrant visa 
fee was paid, DOS would schedule the immigrant visa interview 
potentially before USCIS adjudicated the Form I-601A and, as a result, 
the applicant would be ineligible for the provisional unlawful presence 
waiver. Finally, one commenter requested that DHS implement a grace 
period of at least one year after publication of the final rule during 
which applicants who had scheduled immigrant visa interviews could 
participate in the provisional unlawful presence waiver process.
    DHS disagrees that limiting eligibility to aliens who have not had 
their immigrant visa interviews scheduled has no rational basis. DHS 
considered a number of criteria and restrictions to make the process 
operationally manageable without creating delays in processing of other 
petitions or applications filed with USCIS or in the DOS immigrant visa 
process. By including aliens who were scheduled for an interview prior 
to the date of publication of this final rule, the projected volume of 
cases could significantly increase and would create backlogs not only 
in the provisional unlawful presence waiver process, but also in 
adjudication of other USCIS benefits. The increased volume would also 
adversely impact DOS and their immigrant visa process.
    For these reasons, DHS will not expand the provisional unlawful 
presence waiver to include individuals whose immigrant visa interviews 
were scheduled before the date of publication of this final rule 
January 3, 2013. DHS now adds language to the final rule to

[[Page 546]]

clarify when an alien is ineligible for a provisional unlawful presence 
waiver because of a previously scheduled immigrant visa interview.
    USCIS will first look at whether the scheduled immigrant visa 
interview is based on the approved immediate relative petition (I-130 
or I-360) that accompanies the Form I-601A. If it is, USCIS will then 
look at the Department of State's Consular Consolidated Database (CCD) 
to determine the date on which the Department of State initially acted 
to schedule the applicant for his or her immigrant visa interview 
(i.e., the date of scheduling itself and not the date and time the 
applicant must appear for the interview).
    If the date that the Department of State initially acted to 
schedule the immigrant visa interview is prior to the date of 
publication of this final rule, January 3, 2013, then the alien is 
ineligible to apply for a provisional unlawful presence waiver. If the 
date that Department of State initially acted to schedule the immigrant 
visa interview is on or after the publication date of this final rule, 
the alien is eligible to apply for a provisional unlawful presence 
waiver. The actual date and time that the alien is scheduled to appear 
for the interview is not relevant for the eligibility determination. 
This rule applies even if the alien failed to appear for his or her 
interview, cancelled the interview, or requested that the interview be 
rescheduled. Therefore, USCIS may reject or deny any Form I-601A filed 
by an alien who USCIS determines that the Department of State, prior to 
the date of publication of this final rule, initially acted to schedule 
the alien's immigrant visa interview for the approved immediate 
relative petition upon which the Form I-601A is based. See section 
212.7(e)(4)(iv).
    An alien who is ineligible to apply for a provisional unlawful 
presence waiver because of a previously scheduled immigrant visa 
interview may still qualify for a provisional unlawful presence waiver 
if he or she has a new DOS immigrant visa case because (1) DOS 
terminated the immigrant visa registration associated with the 
previously scheduled interview, and they have a new immediate relative 
petition; or (2) the alien has a new immediate relative petition filed 
on his or her behalf by a different petitioner.
    DHS has clarified the regulatory text at 8 CFR 212.7(e)(4) and 
(5)(ii) so that aliens clearly understand that if the Department of 
State scheduled the alien for his or her initial immigrant visa 
interview prior to the date of publication of this final rule, the Form 
I-601A will be rejected and returned to the applicant with the 
associated filing and biometric fees or denied. The Form I-601A will be 
rejected even if the applicant's interview is rescheduled after the 
date of publication of this final rule. USCIS will verify with DOS 
whether the applicant's immigrant visa interview was scheduled before 
the date of publication of this final rule.
7. Aliens With Other Grounds of Inadmissibility
    Several commenters asked DHS to consider expanding the provisional 
unlawful presence waiver process to include additional grounds of 
inadmissibility and the waivers associated with such grounds. These 
commenters specifically referenced waivers such as the waiver for 
certain criminal grounds of inadmissibility under INA section 212(h), 8 
U.S.C. 1182(h), for fraud and misrepresentation under INA section 
212(i), 8 U.S.C. 1182(i), and for alien smuggling under INA section 
212(d)(11), 8 U.S.C. 1182(d)(11). Some commenters suggested that DHS 
include any waiver that has the same extreme hardship standard into the 
provisional unlawful presence waiver process. Other commenters believed 
that it would be more efficient to resolve all grounds of 
inadmissibility at the same time. They suggested that DHS include all 
grounds of inadmissibility that can be waived and currently appear on 
the Form I-601. The commenters believed this change would alleviate the 
need for aliens to file multiple waiver requests at the time of their 
immigrant visa interviews.
    Several commenters stated that an individual should not be 
precluded from filing a provisional unlawful presence waiver 
application if the individual: (1) Was previously arrested, especially 
if there was no conviction or the conviction was for a crime involving 
moral turpitude (CIMT) that meets the petty offense exception under INA 
section 212(a)(2)(A)(ii), 8 U.S.C. 1182(a)(2)(A)(ii); (2) violated his 
or her status; (3) worked without authorization; or (4) made a false 
claim to U.S. citizenship under INA section 212(a)(6)(C)(ii), 8 U.S.C. 
1182(a)(6)(C)(ii). A few commenters also requested that USCIS make an 
affirmative finding that a specific ground of inadmissibility does not 
apply to an applicant. The commenters requested that such a finding be 
either persuasive or binding on DOS consular officers.
    Finally, some commenters were confused about the effect of the 
provision that allows USCIS to deny a provisional unlawful presence 
waiver application if USCIS has a ``reason to believe'' that the alien 
will be inadmissible on grounds other than unlawful presence. The 
commenters argued that DHS should not deny a provisional unlawful 
presence waiver simply because DHS has reason to believe that the 
applicant was convicted of a crime, especially since some crimes are 
not automatic bars to admission to the United States in a lawful 
immigration status and, upon further review, would not be considered 
convictions or criminal offenses for immigration purposes.
    DHS has considered these comments but will not adopt the suggested 
changes. The goal of the provisional unlawful presence waiver process 
is to facilitate immigrant visa issuance for immediate relatives of 
U.S. citizens who are otherwise admissible \8\ to the United States 
except for the 3-year and 10-year unlawful presence bars, which are 
triggered upon departure from the United States. DOS, not USCIS, 
determines if an immigrant visa applicant is eligible for an immigrant 
visa and whether there are any grounds of inadmissibility that may bar 
issuance of the immigrant visa. If USCIS were to consider other grounds 
of inadmissibility beyond unlawful presence, it would create backlogs 
in the adjudication of the provisional unlawful presence waivers and, 
in turn, adversely impact DOS's immigrant visa process. In particular, 
to assess an application for a waiver of inadmissibility based on 
fraud, misrepresentation, or criminal history, an individual generally 
must undergo vetting through an in-person interview at a USCIS Field 
Office. Since DOS already conducts an in-depth in-person interview as 
part of the immigrant visa process, DHS believes that such a full 
review by USCIS would be duplicative of DOS's efforts.
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    \8\ An alien will not be inadmissible for 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), once he or she leaves the United States to attend a 
consular interview.
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    DHS, however, intends to uphold its responsibility to protect the 
integrity and security of the immigration process by conducting full 
background and security checks to assess whether an individual may be a 
threat to national security or public safety. To maintain a streamlined 
process, USCIS will, however, only conduct a limited review of the 
waiver application to determine if: (1) The individual has self-
reported a ground of inadmissibility that would render him or her 
ineligible for the provisional unlawful presence waiver;

[[Page 547]]

(2) the results of the background checks reveal conduct or actions that 
potentially would make an individual ineligible for an immigrant visa; 
or (3) the individual has engaged in activities that could impact the 
discretionary determination regarding whether he or she warrants a 
favorable exercise of discretion. If USCIS determines that there is 
reason to believe that the alien may be inadmissible to the United 
States at the time of his or her immigrant visa interview based on 
another ground of inadmissibility other than unlawful presence, USCIS 
will deny the request for the provisional unlawful presence waiver. 
USCIS's determination on the provisional unlawful presence waiver is 
not a conclusive finding of inadmissibility. It also is not an 
assessment of whether a particular crime or pattern of conduct would 
ultimately bar an individual from obtaining a legal status under the 
immigration laws.
    Aliens who may have other grounds of inadmissibility are not 
precluded from obtaining a waiver of such grounds (if permitted by law) 
and ultimately an immigrant visa. The individual can file a Form I-601, 
Application for Waiver of Grounds of Inadmissibility with the USCIS 
Lockbox, after he or she attends the immigrant visa interview and after 
DOS conclusively determines that the individual is inadmissible. If the 
ground(s) of inadmissibility identified by the DOS consular officer can 
be waived, the individual can file a Form I-601 along with any 
supporting documentation or evidence needed to demonstrate eligibility 
for the waiver and ultimately the immigrant visa.
8. Aliens in Temporary Protected Status
    Several commenters asked DHS to clarify how the provisional 
unlawful presence waiver process affects aliens in Temporary Protected 
Status (TPS) and to ensure that such aliens are included in the 
provisional unlawful presence waiver process. DHS does not believe 
these additions to the eligibility criteria are necessary.
    Any alien who meets the requirements of the provisional unlawful 
presence waiver process and who is consular processing abroad can 
obtain a provisional unlawful presence waiver regardless of the alien's 
current status in the United States.\9\ An alien currently registered 
for TPS under INA section 244, 8 U.S.C. 1254a, is considered to be 
maintaining lawful nonimmigrant status\10\ for purposes of adjustment 
of status or change of status. See INA section 244(f)(4), 8 U.S.C. 
1254a(f)(4). A grant of TPS, however, does not cure an unlawful entry 
prior to the alien's grant of TPS or any unlawful presence the alien 
may have accrued prior to being granted TPS. See Serrano v. U.S. Att'y 
Gen., 655 F.3d 1260 (11th Cir. 2011). If the TPS beneficiary needs a 
waiver of inadmissibility for unlawful presence, that alien is in the 
same position as any other alien who needs a waiver of inadmissibility 
under INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v), at the 
time of the immigrant visa processing abroad. As a result, TPS 
applicants who are immediate relatives of U.S. citizens can participate 
in the provisional unlawful presence waiver process if they are 
pursuing consular processing of an immigrant visa abroad.
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    \9\ USCIS also received two comments asking whether alien 
crewman could apply for a provisional unlawful presence waiver. As 
stated above, any alien in the United States who qualifies as an 
immediate relative and has an approved Form I-130 or Form I-360 may 
apply for the provisional unlawful presence waiver, irrespective of 
his or her current immigration status, if otherwise eligible.
    \10\ INA section 244(f)(4), 8 U.S.C. 1254a(f)(4), provides that, 
during the period that an alien is granted temporary protected 
status, the alien is considered as being in or maintaining lawful 
status as a nonimmigrant for purposes of adjustment or change of 
status.
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9. Additional Eligibility Criteria
    A few commenters suggested that DHS consider limiting or adding 
eligibility criteria to better prioritize aliens who may be eligible 
for the provisional unlawful presence waiver process. Two commenters 
suggested that DHS require an individual to have a minimum amount of 
time in the United States unlawfully (e.g., two, three, or five years) 
before he or she could file a provisional unlawful presence waiver. 
Another commenter suggested that DHS limit eligibility to aliens who 
were married to a U.S. citizen prior to the effective date of this 
final rule. One commenter suggested limiting the eligibility criteria 
solely to aliens physically present in the United States, who are 
immediate relatives with an approved Form I-130, and who are at least 
17 years of age. Several commenters suggested that DHS give priority to 
aliens who are minors and aliens who show good moral character, have no 
criminal record, and demonstrate that they have been productive and 
responsible as evidenced by paying taxes, mortgages, and self-
sufficiency. Finally, several commenters requested that DHS base 
approval of the provisional unlawful presence waiver on factors such 
as: (1) Having good moral character; (2) having no criminal record; (3) 
not having abused government benefits; (4) putting children through 
school; (5) paying taxes; (6) being married to a U.S. citizen or having 
U.S. citizen children; or (7) owning a home.
    DHS considered a number of criteria and restrictions to make the 
process operationally manageable without creating delays in processing 
of other petitions or applications filed with USCIS or in the DOS/NVC 
immigrant visa process. DHS, however, did not adopt these limitations 
or restrictions. The commenters' suggestions are already part of the 
overall analysis of whether an individual warrants the grant of the 
provisional unlawful presence waiver as a matter of discretion. The 
factors that play into the discretionary analysis are not limited to 
one particular set of factors, see, e.g., Matter of Cervantes-Gonzalez, 
22 I. & N. Dec. 560, 566 (BIA 1999); as part of the application for 
provisional unlawful presence waiver, an applicant should set forth any 
favorable discretionary factor he or she considers relevant to the 
adjudication. By setting restrictions on the number of years of 
unlawful presence or the date when an individual married the U.S. 
citizen, DHS would exclude a subset of immediate relatives of U.S. 
citizens who are or would be otherwise eligible. DHS, therefore, has 
not adopted these suggestions and retains the eligibility criteria 
listed in 8 CFR 212.7(e)(3).

D. Filing Requirements and Fees

1. Concurrent Filing
    Many commenters asked DHS to allow concurrent filing of the Form I-
130 or Form I-360, Form I-601A, and, if needed, the Form I-212, 
Application for Permission to Reapply for Admission Into the United 
States After Deportation or Removal. Several commenters noted that 
USCIS does adjudicate some Form I-212s in the United States pursuant to 
the regulations at 8 CFR 212.2(j) and in certain cases may grant the 
Form I-212 conditionally in anticipation of the individual's departure. 
Other commenters argued that applicants should be allowed to file the 
provisional unlawful presence waiver at any stage of immigrant petition 
or visa process. Several commenters said that DHS could avoid 
duplicating efforts by processing multiple applications at the same 
time. The commenters believed it was inefficient for DHS not to allow 
concurrent filing and an injustice to waiver applicants to maintain 
separate processes for the Form I-601A and Form I-212, especially when 
the separate processes have the effect of increasing the time 
applicants must

[[Page 548]]

spend outside the United States and away from their families. The 
commenters asked DHS to at least examine the feasibility of 
concurrently processing these applications before the alien has to 
leave for his or her immigrant visa interview. Finally, one commenter 
suggested that USCIS should allow applicants to submit the Form I-601A 
and Form I-212 prior to the filing of the Form I-130.
    DHS has considered these comments but believes that concurrent 
filing, or allowing filing of the Form I-601A before the immediate 
relative petition, would undercut the efficiencies USCIS and DOS will 
gain through the streamlined provisional unlawful presence waiver 
process. Currently, Form I-130 denials are appealable to the DOJ, EOIR 
Board of Immigration Appeals (BIA), and if the alien challenges the 
denial, USCIS would either have to hold the provisional unlawful 
presence waivers until the Form I-130 was decided on appeal or deny the 
Form I-601A but reopen it if the appeal is decided favorably for the 
alien. Both scenarios are inefficient and could cause USCIS to incur 
additional costs for storing the provisional unlawful presence waiver 
applications and transferring any A-files or receipt files between 
offices until the administrative appeal process is complete. DHS 
developed this provisional unlawful presence waiver process in close 
coordination with DOS to ensure that both agencies could efficiently 
complete the waiver and immigrant visa process concurrently within a 
short timeframe. Allowing the filing of the Form I-601A after the Form 
I-130 or Form I-360 is approved is more efficient for USCIS and often 
is more efficient for the applicant as well. Therefore, DHS will not 
accept concurrently filed Forms I-130 and I-601A, or allow for the 
filing of the Form I-601A before approval of the immediate relative 
petition.
    Moreover, DHS will not permit concurrent filing of Forms I-601A and 
I-212. While an individual can obtain advance, conditional consent to 
reapply for inadmissibility under INA section 212(a)(9)(A), 8 U.S.C. 
1182(a)(9)(A) (prior removal or departure under order of removal), 
while still in the United States, DHS will not incorporate the Form I-
212 in the provisional unlawful presence waiver presence process at 
this time for the following reasons.
    First, most applicants seeking a provisional unlawful presence 
waiver will not have A-files. However, every I-212 applicant with a 
prior removal order has an A-file because he or she was in removal 
proceedings. If concurrent filing of Forms I-601A and I-212 is 
permitted, USCIS in each case would have to request and review the 
applicant's A-file--a process that can cause significant delay. This 
extra procedural step in turn would create significant delays in USCIS 
processing of provisional unlawful presence waiver applications.
    Second, individuals currently may file an administrative appeal 
with the Administrative Appeals Office (AAO) of a decision denying 
their Form I-212. Consequently, if concurrent filing of Forms I-601A 
and I-212 is permitted, and the Form I-212 is denied and an appeal 
taken, USCIS would have to hold the applicant's Form I-601A until the 
I-212 appeal is decided and, if the applicant seeks review in federal 
court, until the litigation is resolved. The streamlined Form I-601A 
process is designed to avoid these extra procedural steps, which would 
create backlogs in USCIS adjudication of the provisional unlawful 
presence waiver.
    Form I-212 also is used to seek consent to reapply to overcome 
inadmissibility for unlawful reentry after a prior immigration 
violation under INA section 212(a)(9)(C), 8 U.S.C. 1182(a)(9)(C).\11\ 
Aliens who are subject to this ground of inadmissibility cannot seek 
consent to reapply until they have been outside of the United States 
continuously for 10 years. Therefore, allowing the Form I-212 to be 
filed concurrently with the Form I-601A might mistakenly imply that 
those inadmissible under INA section 212(a)(9)(C) can file in the 
United States and at an earlier time.
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    \11\ The regulations governing the processing of advance, 
conditional consent to reapply in the United States at 8 CFR 
212.2(j) do not apply to aliens who are subject to this ground of 
inadmissibility. See Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 
2006).
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2. Filing Fees
    One commenter stated that applying the current Form I-601 filing 
fee to the Form I-601A was fiscally irresponsible. The commenter argued 
that DHS does not know how many provisional unlawful presence waivers 
it will receive or adjudicate and, therefore, cannot accurately 
determine the case workload or what resources it will need to cover the 
actual costs for adjudicating the Form I-601A. The commenter suggested 
that DHS increase the filing fee to $650 plus $85 for the biometric fee 
to avoid a fiscal shortfall. Several commenters stated that DHS should 
require provisional unlawful presence waiver applicants to pay a fine 
or fee ($5,000 to $20,000) to remain in the United States and obtain 
LPR status through an immigrant visa if eligible for the provisional 
unlawful presence waiver; some of these commenters believed that this 
fine or fee would help reduce the national debt.
    Many opponents of the provisional unlawful presence waiver process 
indicated that the costs of implementation are too expensive and that 
the U.S. Government should not spend money on illegal aliens. The 
commenters believed that DHS was using tax money to support the new 
process. Additionally, two commenters recommended that DHS establish a 
premium processing fee to expedite processing of the provisional 
unlawful presence waiver. The commenters also suggested that DHS give 
special consideration to federal employees and those currently serving 
in active duty, reserve personnel, and veterans of the U.S. Armed 
Forces. Some commenters believed that individuals who did not commit 
any felonies should not have to pay a fee. Several commenters stated 
that the filing fee was either too high or too low. Some commenters 
stated that DHS should permit fee waivers because the fees were too 
high; others said that DHS should double the fee to offset the costs 
for implementing the new process because the Form I-601A fee was too 
low. Some commenters also indicated that fee waivers would be 
appropriate for aliens seeking the provisional unlawful presence waiver 
because most of them have low incomes, and that this is especially true 
for aliens who work in the agricultural and similar service sectors and 
cannot afford to cover the filing costs required by USCIS. Another 
commenter argued that the elimination of a fee waiver violated the Due 
Process Clause of the U.S. Constitution's Fifth Amendment because it 
was not legislated by Congress as was done in the context of INA 
section 245(i), 8 U.S.C. 1255(i). Finally, two commenters said that the 
provisional unlawful presence waiver process was too expensive and as a 
result would be at risk for underuse.
    With regard to the immigrant visa fee that must be paid to DOS, 
several commenters mentioned that the DOS immigrant visa (IV) fee is 
only valid for one year. They were concerned that the period for 
adjudication of the provisional unlawful presence waiver might last 
longer than USCIS expects. The commenters asked DHS to state in the 
regulation that pending provisional unlawful presence waiver 
applications maintain the validity of the IV fees, so that applicants 
would not forfeit the IV fees and have to repay them in the future. 
Some commenters also indicated that the requirement to pay the

[[Page 549]]

immigrant visa fee before filing the provisional unlawful presence 
waiver was confusing. DHS's responses to these views are divided into 
the four categories below.
(i) Authority To Charge Immigration Fees
    Congress has given the Secretary broad authority to administer and 
enforce the immigration and naturalization laws of the United States. 
As part of this broad authority, the Secretary has discretion to set 
filing fees for immigration benefits at a level that will ensure 
recovery of the full costs of providing adjudication and naturalization 
services, including services provided without charge to asylum 
applicants and certain other immigrant applicants. INA section 286(m), 
8 U.S.C. 1356(m). The Secretary also has authority to set fees needed 
to recover administrative costs. The fee revenue collected under INA 
section 286(m), 8 U.S.C. 1356(m), remains available to DHS to provide 
immigration and naturalization benefits and ensures the collection, 
safeguarding, and accounting of fees by DHS. INA section 286(n), 8 
U.S.C. 1356(n).
    The Secretary has discretion to waive filing fees or exempt certain 
types of benefit requests from the fee requirements. The Secretary also 
has broad discretion to waive any fee when an individual's 
circumstances warrant such a waiver. Aliens who request a fee waiver 
are not entitled to the waiver as a matter of law,\12\ nor do they have 
a cognizable due process interest in a discretionary fee waiver. The 
denial of a fee waiver request is a matter of discretion. The agency 
also has not provided for administrative appeals of such discretionary 
decisions.
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    \12\ One commenter referred to INA section 245(i) as an example 
in which Congress authorized fee waivers and asserted that USCIS 
cannot exclude fee waivers in the provisional unlawful presence 
waiver process. Congress has legislated when certain categories of 
aliens are exempt from paying certain immigration fees. The 
authority, however, to waive the provisional unlawful presence 
waiver application fee lies with the Secretary through her 
authorities under INA sections 103 and 286(m), 8 U.S.C. 1103 and 
1356(m), among others. The fact that Congress has provided for fee 
waivers in different situations does not preclude the Secretary from 
exercising her discretionary authority not to provide for fee 
waivers in the context of this rule.
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    None of the money used for USCIS adjudication of the provisional 
unlawful presence waiver comes from appropriated funds. As a fee-based 
agency, USCIS is primarily funded by applicants seeking immigration 
benefits. Applicants are required to pay their own fees. USCIS uses 
these fees to process applicants benefit requests and to cover its 
administrative costs. USCIS, however, will not, as a matter of 
discretion, grant fee waivers for the provisional unlawful presence 
waiver or associated biometric fee.
(ii) Premium Processing of the Provisional Unlawful Presence Waiver
    The Secretary has established a premium processing fee for certain 
employment-based immigration benefit requests under INA section 286(u), 
8 U.S.C. 1356(u). USCIS provides premium processing for certain benefit 
types if an authorized applicant or petitioner pays a surcharge of 
$1,225 for the service. The surcharge is paid in addition to the filing 
fees for the immigration benefit requested. USCIS's Premium Processing 
Service (PPS) generally provides faster processing times and 
adjudication. USCIS guarantees 15-calendar-day processing to those who 
choose to use the PPS. In general, if USCIS cannot make a final 
decision on the applicant's benefit request within this period, USCIS 
will refund the PPS fee. See 8 CFR 103.7(e)(2). Even if the PPS fee is 
refunded, USCIS will endeavor to continue expedited processing of the 
underlying benefit request.
    DHS, however, cannot extend premium processing to family-based 
applications or to waivers of inadmissibility that accompany such 
applications because INA section 286(u), 8 U.S.C. 1356(u), only allows 
premium processing for employment-based petitions and applications. 
Therefore, DHS is not adopting this suggestion. DHS, however, reminds 
applicants that they can request expedited adjudication of a 
provisional unlawful presence waiver in accordance with current USCIS 
expedite guidance.\13\
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    \13\ For guidance on USCIS expedite procedures, please visit 
www.uscis.gov.
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(iii) Fee Level for the Provisional Unlawful Presence Waiver
    DHS has adopted the current cost for adjudicating an Application 
for Waiver of Ground of Inadmissibility, Form I-601($585), as the 
initial filing fee that will be required for the Form I-601A. DHS 
decided to set the fee for the provisional unlawful presence waiver 
process to be the same as the current Form I-601 waiver application fee 
because the population that will be eligible for the provisional 
unlawful presence waiver is a subset of those individuals who would 
otherwise have to file under the current Form I-601 process. Also, the 
adjudication of the Form I-601A will be comparable to the adjudication 
of a Form I-601 requesting waiver of inadmissibility pursuant to INA 
section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v).
    Costs to the Federal Government include the possible costs of 
additional adjudication personnel associated with increased volume and 
the associated equipment (computers, telephones) and occupancy costs 
(if additional space is required). However, we expect these costs to be 
offset by the additional fee revenue collected for form processing. DHS 
will consider the impact of the provisional unlawful presence waiver 
process workflow 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.
(iv) DOS Immigrant Visa Fee
    DOS is the agency in charge of NVC procedures. The NVC procedures 
are outlined in the information materials that applicants receive from 
the NVC. As long as the applicant follows NVC procedures, and has 
informed the NVC of the filing of the provisional unlawful presence 
waiver, as outlined in the NVC procedures, the fact that a Form I-601A 
is pending will not result in the invalidation of the NVC processes. A 
pending I-601A also will not affect the validity of DOS immigrant visa 
fee and applicants will not be required to resubmit the DOS immigrant 
visa fee solely due to the Form I-601A processing, provided the 
applicant complies with all DOS processing requirements.
3. Limitations on Filing of Provisional Unlawful Presence Waivers
    Many commenters questioned why DHS would limit the number of 
provisional unlawful presence waiver applications that could be filed 
by an individual applicant. Some commenters stated that many applicants 
will be unrepresented, and, as a result of their lack of knowledge or 
understanding of the immigration process, could be denied solely for 
technical reasons, such as failure to present the proper documents. 
Commenters also stated that some pro se aliens may obtain inadequate, 
erroneous, or unscrupulous legal assistance, which could result in 
their cases being denied. The commenters argued that precluding these 
individuals from filing another Form I-601A would be unduly harsh and 
that DHS's duty of fairness to applicants should trump the agency's 
interest in administrative efficiency and finality. Several commenters 
also disagreed with the limitation on filing,

[[Page 550]]

especially when an applicant withdraws his or her initial filing.
    One commenter requested that USCIS return the fee if the waiver 
application is withdrawn. Some commenters also found it a cumbersome 
and costly approach to require individuals whose waivers are denied or 
withdrawn to file another waiver through the regular process after the 
consular interview. A few commenters requested that USCIS assign 
another officer to adjudicate a new Form I-601A, if the prior 
provisional unlawful presence waiver request was denied or withdrawn. 
Finally, some commenters believed that it was unjust to exclude 
applicants from the provisional unlawful presence waiver process if 
they had pending adjustment of status applications.
    DHS appreciates the valid concerns of these commenters and 
recognizes that if it implemented the regulatory text as published in 
the NPRM, aliens with compelling circumstances could be precluded from 
obtaining a provisional unlawful presence waiver. For these reasons, 
DHS is removing the single-filing limitation. If an individual's 
provisional unlawful presence waiver request is denied or withdrawn, 
the individual may file a new Form I-601A, in accordance with the form 
instructions and with the required fees. The applicant's case must 
still be pending with DOS, and the applicant must notify DOS that he or 
she intends to file a new Form I-601A. In the case of a withdrawn Form 
I-601A, USCIS will not refund the filing fees because USCIS has already 
undertaken steps to adjudicate the case.
    Alternatively, an individual who withdraws his or her Form I-601A 
filing or whose Form I-601A is denied can apply for a Form I-601, 
Application for Waiver of Grounds of Inadmissibility with the USCIS 
Lockbox, after he or she attends the immigrant visa interview and after 
DOS conclusively determines that the individual is inadmissible. If the 
ground(s) of inadmissibility identified by the DOS consular officer can 
be waived, the individual can file a Form I-601 along with any 
supporting documentation or evidence needed to demonstrate eligibility 
for the waiver and ultimately the immigrant visa. Since USCIS has now 
centralized adjudication of Forms I-601 filed by aliens abroad, USCIS 
anticipates that the processing time in the traditional Form I-601 
waiver process will be reduced.
    Applicants and their attorneys or accredited representatives also 
are reminded that they may address or correct mistakes by supplementing 
a pending Form I-601A waiver request with additional evidence or 
correcting the request before USCIS makes a final decision in the case. 
USCIS will take into consideration any evidence received when making 
the decision.
4. Biometrics
    Several commenters were concerned about the biometrics requirement 
and the potential harm to applicants, especially if they were denied a 
provisional unlawful presence waiver. One commenter believed that the 
biometrics requirement should be eliminated because it would make 
applicants hesitant to apply for the provisional unlawful presence 
waiver because of a perceived inherent danger for undocumented persons 
to work so closely with the U.S. Government. One commenter stated that, 
when DHS collects biometrics from applicants, it demands a great amount 
of personal information that could put applicants at risk. The 
commenter believed that the information collected from biometrics could 
be incriminating and used to initiate investigations. The commenter 
also noted that the proposed rule failed to offer applicants any 
protection from being placed in removal proceedings. One commenter 
claimed that the collection of biometrics was another way for DHS to 
``find fault'' with the applicant and bar waiver approval. Finally, 
several commenters believed that DHS should allow all individuals to 
provide biometrics at a U.S. Embassy or consulate and, therefore, 
should include aliens outside the United States.
    After consideration of these comments, DHS is not modifying the 
biometrics requirement. Requiring collection of biometrics helps USCIS 
determine if an alien is potentially subject to another ground of 
inadmissibility or if there are negative factors or conduct that may 
affect whether the individual warrants a favorable exercise of 
discretion. DHS only collects the biographic information needed to run 
such checks and to adjudicate any requested immigration benefit. 
Requiring biometrics also is consistent with the agency's enforcement 
priorities and necessary to ensure that an individual granted a Form I-
601A is not a national security risk or public safety threat. USCIS 
will continue to follow its existing Notice to Appear (NTA) policies to 
determine whether the agency will initiate removal proceedings against 
a particular individual or refer them to ICE. Finally, DHS will not 
permit capture of biometrics abroad because the Form I-601A process is 
a domestic process that applies only to aliens who are present in the 
United States at the time of filing, and DOS already collects an 
applicant's biometrics at the U.S. Embassy or consulate abroad as part 
of the immigrant visa application process.
5. The Minimum Age (17 Years) Requirement
    Several commenters objected to the requirement that applicants must 
be 17 years of age or older to file a provisional unlawful presence 
waiver. The commenters argued that the requirement is confusing and 
suggested eliminating it altogether. One commenter suggested changing 
the minimum age from 17 to 18 years old. The commenters asked DHS to 
provide clear instructions to the public that individuals do not begin 
to accrue unlawful presence until they are 18 years old and stated that 
it would be best if applicants judged on their own whether and when 
they should file the provisional unlawful presence waiver application.
    It is important for DHS to maintain the flexibility to reject 
applications filed by applicants under the age of 17 so these 
applicants are not precluded from filing another waiver application in 
the future. This approach would allow an applicant to save the cost for 
filing an unnecessary waiver application until the waiver is actually 
needed. This approach of allowing individuals who are 17 years or older 
request a provisional unlawful presence waiver also enables more 
efficient processing of the immigrant visa application for immediate 
relative children who are under the age of 18 years and therefore have 
not yet accrued unlawful presence, but who very possibly will turn 18 
years old before the DOS consular interview, accrue unlawful presence 
subsequent to such time, and potentially trigger the bars under INA 
section 212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i), upon a departure. 
If these children must wait until they have turned 18 years old and 
thereafter accrued at least 180 days of unlawful presence to file a 
Form I-601A, it may be the case that by that time DOS will have already 
scheduled a consular interview, thereby precluding the alien from 
eligibility for this process and leading to the hardship to U.S. 
citizen parents that this rulemaking intends to avoid.
6. Effect of the Child Status Protection Act (CSPA)
    Several commenters asked DHS to clarify that the Child Status 
Protection Act (CSPA) provisions, which protects certain children from 
aging-out of eligibility for certain immigration benefits, be applied 
to the agency's definition of ``immediate relative'' for purposes of 
access to the provisional

[[Page 551]]

unlawful presence waiver process. DHS clarifies in the Form I-601A 
instructions that an applicant will remain eligible for a provisional 
unlawful presence waiver so long as he or she remains an ``immediate 
relative'' as defined in the INA, as amended by the CSPA. Thus, an 
aged-out child may still qualify as an ``immediate relative'' for 
purposes of access to the provisional unlawful presence waiver process 
as long as the child is classified as an immediate relative under the 
INA. See INA section 201(f), 8 U.S.C. 1151(f).

E. Adjudication

1. Extreme Hardship--Standards and Training
    Numerous commenters questioned DHS's policy on extreme hardship. 
Many urged DHS to issue more detailed guidance on extreme hardship, 
arguing that the term is unclear and potentially subjects applicants to 
arbitrary decision-making by USCIS officers. Other commenters indicated 
that clear guidance would allow individuals to better assess their 
chances for an approval. One commenter even provided DHS with a list of 
suggestions for consideration when creating new policy guidance on 
extreme hardship determinations. A number of commenters requested that 
DHS ensure, through training, that the extreme hardship standard is 
applied evenly and consistently, and that extreme hardship assessments 
include consideration of the financial and emotional effects of 
separation. Many commenters thought that the current extreme hardship 
standard applied by USCIS is too rigid and should be relaxed. Several 
commenters also asked DHS to conduct extensive training for domestic 
USCIS officers, specifically on country conditions, which are critical 
to making an extreme hardship determination. The commenters stated that 
USCIS personnel who adjudicate waivers abroad already are highly 
trained, have intimate familiarity with specific country conditions, 
and are knowledgeable about conditions in the applicant's home country. 
The commenters were concerned that, without extensive training, USCIS 
officers in the United States may adopt a more restrictive approach. 
The commenters wanted USCIS to ensure that country-specific knowledge 
is not lost once waiver processing is moved stateside. Several 
commenters also mentioned that USCIS should use the adjudicator's 
manual and standard operating procedures created by the Refugee, 
Asylum, and International Operations Directorate (RAIO) because they 
explain the entire process, standard of review, and other requirements. 
The commenters stated that this manual is an invaluable resource and 
that USCIS should create a similar one for the provisional unlawful 
presence waiver process and make it publicly available.
    Extreme hardship is a statutory requirement that an applicant must 
meet to qualify for an unlawful presence waiver under INA section 
212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v). The INA does not define the 
term, and federal courts have not specifically defined extreme hardship 
through case law. The BIA has stated that extreme hardship is not a 
definable term of fixed and inflexible meaning, but that the elements 
to establish extreme hardship are dependent upon the facts and 
circumstances of each case. See Matter of Cervantes-Gonzalez, 22 I&N 
Dec. 560, 565 (BIA 1999). When USCIS assesses whether an applicant has 
established extreme hardship, USCIS looks at the totality of the 
applicant's circumstances and any supporting evidence to determine 
whether the qualifying relative will experience extreme hardship.
    In this final rule, USCIS is not modifying how it makes extreme 
hardship determinations or how it defines extreme hardship. Consistent 
with how USCIS currently makes extreme hardship determinations, USCIS 
will consider all factors and supporting evidence that an applicant 
submits with his or her provisional unlawful presence waiver 
application. USCIS also has included in the Form I-601A instructions 
examples of factors to help provisional unlawful presence waiver 
applicants understand what can be provided to establish the required 
extreme hardship to a U.S. citizen spouse or parent. USCIS will 
thoroughly train officers to adjudicate provisional unlawful presence 
waivers, create standard operating procedures specific to the Form I-
601A process, and monitor implementation and conduct further training 
if necessary.
2. Presumption of Extreme Hardship
    Several commenters asked DHS to apply a presumption of extreme 
hardship if the applicant has to file a new Form I-601 waiver 
application because the DOS consular officer determined that the 
applicant was inadmissible on other grounds that can be waived. The 
commenters argued that the extreme hardship would already be 
established as part of the provisional unlawful presence waiver 
application and USCIS should not have to re-adjudicate that aspect of 
the waiver.
    Many commenters believed that USCIS should automatically find 
extreme hardship exists in certain circumstances. The commenters argued 
that extreme hardship should be found based solely on: (1) Separation 
of the U.S. citizen from his or her immediate relative; (2) dangerous 
conditions in the applicant's home country; (3) the fact that the U.S. 
citizen and undocumented alien have a U.S. citizen child; (4) the fact 
that the applicant would be separated from his or her children for 
three or 10 years; (5) being a student in the United States; or (6) the 
fact that the applicant was brought into the United States at a young 
age and that he or she could qualify under the DREAM Act if enacted. 
Some commenters also suggested that DHS publish clear criteria for 
extreme hardship and include factors such as the length of time an 
alien has been married, the existence of children, the payment of 
taxes, strong ties to the United States and life-long assets, lack of 
eligibility for adjustment of status, and the loss of a business. The 
commenters believed that setting out clear criteria would help 
applicants better understand how to meet the extreme hardship standard.
    Several Congressional commenters stated that DHS has already 
established a precedent in its regulations that includes a presumption 
of extreme hardship for certain Salvadorans and Guatemalans under the 
Nicaraguan Adjustment and Central American Relief Act (NACARA), Public 
Law 105-100, as amended, citing 8 CFR 1240.64(d)(1). These 
Congressional commenters believed that DHS could include similar 
regulations and even create a rebuttable presumption that an extreme 
hardship requirement has been satisfied when applicants would be 
required to remain for prolonged periods of time in dangerous 
locations. The Congressional commenters further argued that DHS could 
determine if a location was dangerous by whether DOS awards danger pay 
to its employees serving in such locations, citing 5 U.S.C. 5928 
(awarding danger pay when there is a ``civil insurrection, civil war, 
terrorism, or wartime conditions''). Many commenters also stated that 
the rule should, at a minimum, consider the dangerousness of a location 
as a highly-relevant factor during the adjudication. One commenter also 
suggested that extreme hardship should be found if the U.S. citizen has 
to relocate to a country where Peace Corps does not send its personnel 
because it is too dangerous.
    DHS is not modifying how it makes extreme hardship determinations 
or defining extreme hardship for purposes of the provisional unlawful 
presence

[[Page 552]]

waiver process. DHS also is not creating presumptions of extreme 
hardship. As indicated previously, extreme hardship is not a definable 
term and elements to establish extreme hardship are dependent upon the 
facts and circumstances of each case. Consistent with existing 
practice, USCIS will continue to consider all factors and supporting 
evidence that an applicant submits with his or her provisional unlawful 
presence waiver application in assessing if the applicant has 
established the requisite extreme hardship. DHS also has included in 
the Form I-601A instructions examples of factors to help provisional 
unlawful presence waiver applicants understand what types of documents 
can be provided to establish the required extreme hardship to a U.S. 
citizen spouse or parent.
    In terms of re-adjudicating prior extreme hardship and 
discretionary determinations, DHS will not alter its position on this 
point. Every extreme hardship determination and discretionary 
determination is based on a careful consideration of the evidence of 
record at the time the determination is made. If the DOS consular 
officer determines that a new ground of inadmissibility applies in the 
applicant's case, USCIS may consider that as a new, material factor 
when assessing whether the applicant continues to warrant a favorable 
exercise of discretion. As such, USCIS reserves the authority to reopen 
and reconsider, on its own motion, an approval or a denial of a 
provisional unlawful presence waiver application at any time, including 
when new factors come to light after the provisional unlawful presence 
waiver applicant's immigrant visa interview.
3. Eliminating the Extreme Hardship Requirement
    Several commenters suggested that DHS completely eliminate the 
extreme hardship requirement for purposes of the provisional unlawful 
presence waiver, rather than try to define it. Others argued that 
immediate relatives should not have to prove extreme hardship at all, 
especially if married to a U.S. citizen.
    Congress enacted the provisions of the INA that describe the 
statutory requirements for obtaining a waiver of inadmissibility under 
INA section 212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i). See INA section 
212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v). DHS, as part of the 
Executive Branch, does not have the authority to dispense with any 
statutory requirement. As a result, DHS cannot eliminate extreme 
hardship as a requirement or approve a provisional unlawful presence 
waiver for an individual who has not established that he or she meets 
all the statutory requirements set by Congress. Only Congress can 
change the minimum statutory requirements individuals must meet to 
qualify for a waiver of inadmissibility. USCIS, therefore, cannot adopt 
these suggestions.
4. Timelines for Adjudication; Interviews
    Several commenters urged DHS to establish clear timeframes for 
adjudication of the provisional unlawful presence waiver and for 
immigrant visa issuance. The commenters stated that without a clear 
pronouncement, the uncertainties about the duration of the adjudication 
process would discourage applicants from taking advantage of the 
provisional unlawful presence waiver process. Some commenters believed 
that it would be beneficial if provisional unlawful presence waiver 
applicants could be interviewed to establish extreme hardship and the 
bona fides of the marriage and recommended that USCIS interview 
applicants electronically or through a remote interview process. The 
commenters also suggested combining the interview for Form I-130 with 
the interview for Form I-601A. One commenter believed that allowing 
applicants to be interviewed for the provisional unlawful presence 
waiver would result in what the commenter called ``more humane 
adjudications.''
    DHS declines to adopt these suggestions. In terms of processing 
times, DHS generally publishes the estimated processing times for 
particular immigration benefits and for the local offices where an 
applicant's case would be adjudicated. See https://egov.uscis.gov/cris/processTimesDisplayInit.do (USCIS case processing times). For the 
provisional unlawful presence waiver application, USCIS and DOS are 
coordinating closely to make sure that the timing of the approval of a 
provisional unlawful presence waiver application is close to the time 
of the scheduled immigrant visa interview abroad. DOS estimates that it 
will schedule the applicant for an immigrant visa interview within two 
to three months after approval of the provisional unlawful presence 
waiver and the applicant's submission of the required immigrant visa 
processing documents to DOS. This timeframe allows the immediate 
relative the opportunity to remain united with his or her U.S. citizen 
spouse or parent until shortly before his or her immigrant visa 
interview and will allow DOS to adjudicate an immigrant visa shortly 
after the applicant appears for his or her interview. DHS also believes 
that this streamlined process will significantly shorten the length of 
time immediate relatives must remain outside the United States before 
they can rejoin their U.S. citizen relatives.
    In most instances, the provisional unlawful presence waiver 
application will be adjudicated at the USCIS National Benefits Center 
(NBC). USCIS will adjudicate the applications based on the applicant's 
responses in the Form I-601A, any supporting documentation, and any 
results from background and security checks. The NBC does not conduct 
on-site interviews. In cases where an interview would be required, 
USCIS would have to transfer the applicant's information and A-File/
Receipt File to the local district office and schedule the applicant 
for an interview, which could take several months. Thus, a requirement 
to interview all provisional unlawful presence waiver applicants would 
undermine the goal of this new streamlined process. Through the 
streamlined provisional unlawful presence waiver process, DHS hopes to 
reduce the time it takes for an applicant to receive a decision from 
USCIS and complete the immigrant visa process abroad. DHS, however, has 
reserved its authority to request that a provisional unlawful presence 
waiver applicant appear for an interview.
5. Requests for Evidence and Notices of Intent To Deny
    Several commenters believed that DHS should generously use Requests 
for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) to clarify 
any weaknesses or deficiencies in an alien's provisional unlawful 
presence waiver application before USCIS renders a decision. Otherwise, 
some eligible applicants might be unnecessarily excluded from the 
process. Several commenters asked DHS to expand the use of RFEs to any 
aspect of the provisional unlawful presence waiver application and not 
just limit it to the extreme hardship determination. The commenters 
believed that this change would allow applicants to submit all evidence 
necessary to establish eligibility for the waiver and give USCIS more 
information about an applicant's admissibility rather than 
automatically issuing a denial. With respect to NOIDs, several 
commenters argued that USCIS should issue a NOID instead of a denial, 
especially if other grounds of inadmissibility were detected. The 
commenters also stated that USCIS should issue a NOID to at least let 
the

[[Page 553]]

applicant know which grounds of inadmissibility USCIS believes may come 
up at the immigrant visa interview.
    As stated in the proposed rule, DHS is committed to issuing RFEs to 
address applications it receives that are missing critical information 
related to extreme hardship or if applications are missing critical 
information related to whether the alien merits a favorable exercise of 
discretion. USCIS officers also retain the discretion to issue an RFE 
on any issue or subject matter, if the adjudicator believes that 
additional evidence will aid in the adjudication. DHS anticipates that 
most RFEs will focus on the substantive determination on extreme 
hardship and any factors that may establish that the applicant warrants 
a favorable exercise of discretion.
    USCIS will not issue NOIDs in this provisional unlawful presence 
waiver process, notwithstanding the provisions of 8 CFR 103.2(b)(16). A 
NOID provides an applicant or petitioner with an opportunity to review 
and rebut derogatory information of which he or she is unaware. In the 
provisional unlawful presence waiver process, USCIS will not be 
conducting a full admissibility assessment and, as a result, will not 
be issuing a NOID describing all possible grounds of inadmissibility. 
USCIS, instead, will be deciding an individual's eligibility based on 
his or her responses to the Form I-601A questions and the results from 
the applicant's background and security checks. Most applicants would 
be aware of their prior criminal or immigration history and the 
potential that these offenses might make them ineligible for the 
requested benefit. If an individual's provisional unlawful presence 
waiver application is ultimately denied, the individual may file a new 
Form I-601A, in accordance with the form instructions, with the 
required fees and any additional documentation that he or she believes 
might establish his or her eligibility for the waiver. The applicant's 
case must still be pending with DOS and the applicant must notify DOS 
that he or she intends to file a new I-601A.
    Alternatively, the individual can file a Form I-601, Application 
for Waiver of Grounds of Inadmissibility with the USCIS Lockbox, after 
he or she attends the immigrant visa interview and after DOS 
conclusively determines that the individual is inadmissible. At that 
time, the applicant can make his or her case about whether a particular 
criminal offense or immigration violation renders the applicant 
ineligible for the immigrant visa. If needed, the applicant will have 
an opportunity to file all required waivers and appeal any denial of 
the Form I-601 application to the AAO.

F. Denials, Motions To Reopen or Reconsider, and Appeals

1. Denials and Motions To Reopen/Reconsider
    Several commenters stated that USCIS should not deny a provisional 
unlawful presence waiver solely because there are other grounds of 
inadmissibility. The commenters suggested that USCIS approve the 
provisional unlawful presence waiver and then inform the applicant of 
any other potential grounds of inadmissibility or ineligibility 
discovered during adjudication of the provisional unlawful presence 
waiver application. Some commenters recommended that DHS allow an 
applicant to file a motion to reopen or reconsider if the provisional 
unlawful presence waiver application is denied, giving the applicant a 
chance to rebut DHS's findings. Several commenters and immigrant 
advocacy groups urged DHS to loosen restrictions on filing of motions 
to reopen or reconsider. The commenters argued that these are due 
process protections that are ``integral parts of our legal system.'' 
The commenters urged DHS to allow such motions especially in cases of 
changed circumstances, erroneous denials, deficient applications filed 
by pro se applicants, and deficient or improper filings by ``notarios'' 
and individuals not authorized to practice immigration law in the 
United States. The commenters recommended that DHS do significant 
public outreach to familiarize potential applicants with the new 
provisional unlawful presence waiver process and ensure that immigrants 
are aware of notario practices. The commenters also asked DHS to place 
warnings in the instructions to the provisional unlawful presence 
waiver application and post them on the USCIS Web page to help 
applicants to avoid scams. The commenters suggested that DHS provide 
applicants with links to all 50 State Bar Associations so that 
applicants may contact the state bars to ensure that the person 
assisting them is a licensed attorney or accredited representative who 
is authorized to practice immigration law.
    With regard to DHS's concern with substantial delays in immigrant 
visa processing if motions to reopen or multiple filings were 
permitted, the commenters stated that DHS would still expend additional 
resources on cases where an applicant is denied a provisional unlawful 
presence waiver and must go abroad to apply again with USCIS for a 
waiver of inadmissibility. The commenters also noted that USCIS and DOS 
would have to coordinate processes anyway if the waiver application is 
denied or when the agency elects to reopen and deny the waiver on its 
own motion. Finally, several commenters said that DHS should give the 
applicant a chance to file a new provisional unlawful presence waiver 
application if the first request is denied. The commenters noted that 
most applicants have been in the United States for extended periods of 
time and have not traveled abroad because of the uncertainty in the 
process, the hardships, and potential dangers in their home countries. 
According to these commenters, if USCIS denied waiver applications for 
this group and did not permit a second filing in the United States, 
most of these applicants would simply choose to remain in the United 
States unlawfully and without status.
    DHS understands the concerns of the commenters but nonetheless 
believes that allowing motions to reopen or reconsider would undercut 
the efficiencies USCIS and DOS will gain through the streamlined 
provisional unlawful presence waiver process. DHS also has determined 
that allowing motions to reopen or reconsider could significantly 
interfere with the operational agreements between USCIS and DOS and 
could substantially delay waiver and immigrant visa processing. To 
alleviate some of the commenters' concerns, however, USCIS has 
eliminated the filing limitation initially proposed in the NPRM. 
Consequently, if an individual's provisional unlawful presence waiver 
request is ultimately denied, the individual may file a new Form I-
601A, in accordance with the form instructions, with the required fees 
and any additional documentation that he or she believes might 
establish his or her eligibility for the waiver. The applicant's case 
must still be pending with DOS and the applicant must notify DOS that 
he or she intends on filing a new I-601A.
    Alternatively, the individual can file a Form I-601, Application 
for Waiver of Grounds of Inadmissibility with the USCIS Lockbox, after 
he or she attends the immigrant visa interview and after DOS 
conclusively determines that the individual is inadmissible.
    As indicated in the proposed rule, DHS is retaining its authority 
and discretion to reopen or reconsider a decision on its own motion. 
For the provisional unlawful presence waiver process, USCIS may reopen 
the decision and deny or approve the provisional

[[Page 554]]

unlawful presence waiver at any time if USCIS finds that the decision 
was issued in error or approval is no longer warranted. USCIS will 
follow the requirements of 8 CFR 103.5(a)(5) before reopening a case 
and denying a waiver application.
    DHS agrees with the need for public outreach and materials specific 
to the provisional unlawful presence waiver process to help potential 
applicants avoid being the victims of scams by individuals who are not 
authorized to practice immigration law. USCIS has already begun an 
initiative, the Unauthorized Practice of Immigration Law (UPIL) 
initiative, to inform the public about individuals who are not 
authorized to practice immigration laws and has held several 
stakeholders outreach engagements on the topic. For more details about 
this initiative, please visit the USCIS Web site at www.uscis.gov/avoidscams.
2. Denials and Initiation of Removal Proceedings
    Several commenters questioned the usefulness of the proposed rule, 
especially because it did not contain any confidentiality provisions or 
make clear what would happen to an individual if a provisional unlawful 
presence waiver is denied. Many thought that undocumented individuals 
will be hesitant or deterred from filing the provisional unlawful 
presence waiver as it would expose their status in the United States 
and cause their families even more stress. Numerous commenters asked 
DHS to implement a confidentiality provision so that the denial of the 
provisional unlawful presence waiver request does not automatically 
trigger removal proceedings or notice to ICE that the individual's case 
was denied; others requested that DHS include a ``nonremovability'' 
clause in the regulatory text. Some commenters also urged USCIS to work 
closely with CBP to ensure that CBP will not initiate removal 
proceedings against an alien who is departing from the United States to 
attend the immigrant visa interview.
    DHS is committed to focusing its finite enforcement resources on 
its enforcement priorities, including individuals who pose a threat to 
public safety or national security. As indicated in the proposed rule, 
DHS will follow current agency policy for issuance of Notices to Appear 
(NTAs). See www.uscis.gov/NTA. However, consistent with its civil 
enforcement priorities, DHS does not envision initiating removal 
proceedings against aliens or referring aliens to ICE whose provisional 
unlawful presence waiver applications have been approved. Similarly, 
consistent with its civil enforcement priorities, DHS also does not 
envision initiating removal proceedings against aliens whose Form I-
601As are denied or withdrawn prior to final adjudication. Pursuant to 
its existing policy governing issuance of NTAs and referrals to 
ICE,\14\ an individual whose request for a provisional unlawful 
presence waiver is denied or who withdraws the Form I-601A prior to 
final adjudication will typically be referred to ICE only if he or she 
is considered a DHS enforcement priority--that is, if the individual 
has a criminal history, has committed fraud, or otherwise poses a 
threat to national security or public safety. Given USCIS's existing 
NTA policy, which appropriately focuses USCIS's referrals to ICE on 
individuals who are considered DHS enforcement priorities, DHS will not 
create a ``nonremovability'' clause or confidentiality provision to 
preclude automatic initiation of removal proceedings. DHS will follow 
the NTA issuance policy in effect at the time of the adjudication to 
determine if it will initiate removal proceedings against an applicant 
whose Form I-601A provisional unlawful presence waiver application is 
denied. Furthermore, if DHS discovers acts, omissions, or post-approval 
activity that would meet the criteria for NTA issuance or determines 
that the provisional unlawful presence waiver was granted in error, DHS 
may issue an NTA, consistent with DHS's NTA issuance policy, as well as 
reopen the provisional unlawful presence waiver approval and deny the 
waiver request.
---------------------------------------------------------------------------

    \14\ See USCIS Memorandum, Revised Guidance for the Referral of 
Cases and Issuance of Notices to Appear (NTAs) in cases Involving 
Inadmissible and Removable Aliens (Nov. 7, 2011), available at: 
http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/NTA%20PM%20(Approved%20as%20final%2011-7-11).pdf.
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3. Appeals
    Several commenters argued that DHS should permit appeals of denials 
while the applicant is in the United States. The commenters claimed 
that denial of a provisional unlawful presence waiver was equivalent to 
a final waiver denial and should be subject to appeal rights similar to 
those allowed for the current Form I-601 denials that are filed with 
the AAO. One commenter argued that not allowing aliens to appeal 
essentially meant that DHS would adjudicate all waivers favorably. The 
commenter also stated that denying appeals would not meet the due 
process requirements. A few commenters urged DHS to allow appeals at 
least in cases in which there were questions of law, errors, or changed 
circumstances. Finally, several commenters stated that DHS, by 
relegating certain questions of inadmissibility to either DOS or 
federal court, was abdicating its authority to interpret the law for 
grounds of inadmissibility where no waiver is available.
    DHS disagrees with these positions. There is no cognizable due 
process interest in access to or eligibility for a discretionary, 
provisional unlawful presence waiver of inadmissibility. See, e.g., 
Champion v. Holder, 626 F.3d 952, 957 (7th Cir. 2010) (``To articulate 
a due process claim, [the individual] must demonstrate that she has a 
protected liberty or property interest under the Fifth Amendment. 
Aliens have a Fifth Amendment right to due process in some immigration 
proceedings, but not in those that are discretionary.'') (citations 
omitted). The provisional unlawful presence waiver process is purely 
discretionary and no alien has a right to obtain a waiver from the 
Secretary of Homeland Security.\15\
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    \15\ Even with respect to ordinary Form I-601 waivers, Congress 
specifically gave the Secretary discretion to decide who should or 
should not be granted an unlawful presence waiver under INA section 
212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v). This discretion is not 
diminished by the fact that one element of that determination rests 
on a legal requirement--satisfying the extreme hardship standard. 
Even if an applicant establishes extreme hardship, the Secretary is 
not required to favorably exercise her discretion in the 
adjudication of the waiver. See Matter of Mendez-Moralez, 21 I&N 
Dec. 296, 301 (BIA 1996) (``Extreme hardship is a requirement for 
eligibility, but once established it is but one favorable 
discretionary factor to be considered.'').
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    Even assuming that such an interest exists, none of the commenters 
cite any case or statute that supports the claim that the Due Process 
Clause of the Fifth Amendment requires an Executive agency to provide 
for administrative appeal of an agency decision. Section 10(c) of the 
Administrative Procedure Act, 5 U.S.C. 704, does permit an agency to 
provide an administrative appeal and if the agency chooses to do so, 
the agency can also, by regulation, make the filing of an 
administrative appeal a necessary prerequisite to judicial review. See 
Darby v. Cisneros, 509 U.S. 137 (1993). But nothing in section 10(c) or 
the Darby decision mandates that an agency must provide for an 
administrative appeal.\16\ In upholding

[[Page 555]]

the BIAs' practice of ``affirmance without opinion'' of immigration 
judge decisions, for example, several 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 706, 709 (8th Cir. 2003); Falcon Carriche v. Ashcroft, 350 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).
---------------------------------------------------------------------------

    \16\ To the contrary, the Court's conclusion in Darby that 
pursuing an administrative appeal is a prerequisite to judicial 
review only if required by statute or the agency chooses to provide 
for such an administrative appeal and also chooses to make it 
mandatory strongly suggests that an agency is not required to allow 
for administrative appeal at all, in the absence of a statutory 
mandate.
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    Finally, if USCIS denies an alien's Form I-601A, the alien has two 
alternate avenues for obtaining a waiver of inadmissibility: (1) Filing 
a new Form I-601A, in accordance with the form instructions, with the 
required fees and any additional documentation that he or she believes 
might establish his or her eligibility for the waiver or (2) filing a 
Form I-601, Application for Waiver of Grounds of Inadmissibility with 
the USCIS Lockbox, after he or she attends the immigrant visa interview 
and after DOS conclusively determines that the individual is 
inadmissible. The Form I-601 is appealable to the AAO.
    Appeals should be reserved for actions that are based on a 
comprehensive assessment of the applicant's admissibility. Jurisdiction 
over the final admissibility determination in the context of the Form 
I-601 lies with the AAO and with DOS in the context of the immigrant 
visa eligibility determination. It would be an inefficient use of 
resources for DHS to allow an administrative appeal of a decision that 
does not take into consideration the full inadmissibility determination 
or any other factors that may be discovered during the course of the 
immigrant visa interview abroad. DHS, therefore, is retaining its 
policy of not affording an administrative appeal of the denial of a 
provisional unlawful presence waiver application.

G. Effect of Pending or Approved Provisional Unlawful Presence Waivers

    Many commenters asked USCIS to consider allowing aliens with 
pending provisional unlawful presence waiver applications to travel and 
work while waiting for a decision from USCIS to travel abroad for their 
immigrant visa interview. Several commenters also suggested that 
individuals with pending provisional unlawful presence waiver 
applications be given Social Security numbers and driver's licenses. 
Some commenters requested that aliens not accrue unlawful presence 
during the pendency of Form I-601A or while waiting for their immigrant 
visa interview. The commenters believed that a pending provisional 
unlawful presence waiver application should ``stop the clock'' on any 
immigration violation. Another commenter stated that the final rule 
should clearly specify that the pendency of a Form I-601A protects an 
individual from further accrual of unlawful presence and places the 
individual in a period of stay authorized by the Secretary described in 
INA section 212(a)(9)(B)(ii), 8 U.S.C. 1182(a)(9)(B)(ii). Finally, 
several commenters stated that approval of the provisional unlawful 
presence waiver should guarantee immigrant visa issuance and the right 
to return to the United States.
    A waiver of inadmissibility is an ancillary benefit to a primary 
application that would give an alien legal immigrant status; the 
waiver, by itself, does not convey a legal status. In the provisional 
unlawful presence waiver process, the primary application is the 
immigrant visa over which DOS, not USCIS, has jurisdiction. The waiver 
only addresses grounds of inadmissibility (in this instance, unlawful 
presence) that may preclude DOS from issuing the immigrant visa at the 
time of the applicant's interview abroad. If DOS approves the immigrant 
visa, the alien can be admitted to the United States as a LPR, assuming 
CBP determines that he or she is otherwise admissible and entitled to 
the immigrant visa classification. See INA sections 204(e), 211(a), and 
221(h); 8 U.S.C. 1154(e), 1181(a), and 1201(h). Interim benefits 
provided on the basis of something pending with DHS or DOJ are granted 
only in connection with a pending application for an immigration status 
within the United States. DHS does not have authority to issue Social 
Security numbers; the Social Security Administration has sole 
jurisdiction over the issuance of Social Security numbers. Finally, DHS 
has no authority to issue driver's licenses; the issuance of these 
types of documents are governed by the laws and regulations of the 
individual U.S. states, which prescribe the conditions for obtaining 
and issuance of identification cards and drivers' licenses.
    As stated in the proposed rule, the approval of a provisional 
unlawful presence waiver does not create a lawful immigration status, 
extend any authorized period of stay, protect aliens from removal or 
law enforcement action, or grant any other immigration benefits, 
including temporary work authorization and advance parole. DHS is not 
altering its position on interim benefits as initially stated in the 
proposed rule. Finally, the grant of a provisional unlawful presence 
waiver does not guarantee that an individual with an approved immigrant 
visa will be admitted to the United States by CBP.
    Operationally, USCIS and DOS have coordinated closely on this 
streamlined process and the close timeframe between processing of the 
Form I-601A approval and the immigrant visa application will encourage 
individuals to speed up the consular process and to depart from the 
United States as quickly as possible. Any issuance of interim benefits 
or specific authorized periods of stay will hinder this goal and the 
integrity of the program. DHS added language to the final rule to make 
clear that applicants are not eligible for interim benefits and that a 
pending or approved application for provisional unlawful presence 
waiver does not authorize any interim benefits. See section 
212.7(e)(2).
    DHS reminds the public that the filing or approval of a provisional 
unlawful presence waiver application will not: (1) Confer any legal 
status; (2) protect against the accrual of additional unlawful 
presence; (3) authorize an alien to enter the United States without 
securing a visa or other appropriate entry document; (4) convey any 
interim benefits (e.g., employment authorization, advance parole, or 
eligibility to be paroled based solely on a pending or approved Form I-
601A); or (5) protect an alien from being placed in removal proceedings 
or removed from the United States, in accordance with current DHS 
policies governing initiation of removal proceedings and use of 
prosecutorial discretion.

H. Automatic Revocation

    Several commenters questioned the regulatory text in proposed 8 CFR 
212.7(a)(4)(iv), which provides for automatic termination of the 
validity of an approved waiver under INA section 216(f), 8 U.S.C. 
1186a(f), when the conditional resident status of an alien admitted 
under INA section 216, 8 U.S.C. 1186a, is terminated. The commenters 
argued that this provision was contrary to the INA and should be 
removed from the final rule. The commenters noted that under INA 
section 216(f), 8 U.S.C. 1186a(f), waivers under INA section 212(h), 8 
U.S.C. 1182(h) (for certain criminal grounds of inadmissibility), and 
INA section 212(i) 8 U.S.C. 1182(h) (for fraud or misrepresentation), 
are the only types of waivers that are automatically terminated upon 
termination of

[[Page 556]]

conditional resident status. As a result, they assert, DHS lacks the 
authority to implement this regulatory change when Congress has already 
clearly spoken on the matter.
    A few commenters also argued that DHS should eliminate automatic 
revocation or adjudicate revocations separate and apart from the 
provisional unlawful presence waiver process. The commenters believed 
that it would be more efficient for DHS to reserve the right to review 
an approved provisional unlawful presence waiver rather than 
automatically revoke it, especially when DOS determines that the 
applicant is subject to another ground of inadmissibility or there are 
other negative discretionary factors that were not considered at the 
time of the Form I-601A adjudication. The commenters also opined that 
DHS would not need to re-adjudicate any portion of the waiver that has 
the same or lesser standard needed for waiving the newly discovered 
ground of inadmissibility (e.g., if the new ground of inadmissibility 
required a showing of extreme hardship, DHS could simply adopt the 
provisional unlawful presence waiver determination on extreme hardship, 
when adjudicating the waiver request for the new ground of 
inadmissibility).
    DHS agrees that the statute at INA section 216(f), 8 U.S.C. 
1186a(f), only addresses automatic revocation of approved waivers under 
INA sections 212(h) or (i). As a result, it has clarified that the 
amendment to 8 CFR 212.7(a)(4), regarding treatment of certain waivers 
upon the termination of conditional resident status under INA section 
216(f), 8 U.S.C. 1186a(f), and automatic revocation of approved waivers 
of inadmissibility, only applies to approved waivers based on INA 
sections 212(h) and (i), 8 U.S.C. 1182(h) and (i), and is revising 8 
CFR 212.7(a)(4) accordingly.
    As to revocations, DHS has not adopted the commenters' suggestions. 
DHS believes that revocation of an approved case requires an assessment 
of the facts and circumstances as they existed at the time the case was 
approved as well as any newly discovered information that may have 
affected the officer's decision or discretion at the time of 
adjudication. When USCIS reviews a case for possible revocation, USCIS 
looks at the facts and law at the time the case was approved to 
determine if the applicant was in fact eligible for the benefit 
requested. USCIS also reviews any newly discovered information to see 
if it is relevant and could have potentially affected the officer's 
discretionary assessment in the case. Since the provisional unlawful 
presence waiver is a discretionary process, DHS will retain its 
authority on revocations and its position on automatic revocations. 
Consistent with 8 CFR 103.2(b)(16), if USCIS discovers derogatory 
information that was unknown to the applicant, USCIS will provide 
notice of such information and give the applicant an opportunity to 
respond prior to any decision to deny the application. DHS, however, 
will not allow aliens to appeal a decision to revoke a provisional 
unlawful presence waiver.

I. Comments on Form I-601A, Application for Provisional Unlawful 
Presence Waiver, and the Form Instructions

    DHS invited the public to comment on the proposed rule and the Form 
I-601A and the instructions to accompany the form. DHS has considered 
the comments to the Form I-601A and the form instructions. While DHS 
has not adopted all suggestions made by comments, below is a list of 
changes to the form and instructions that DHS incorporated as a result 
of these comments.
1. Comments on Form
a. Part 1, Information About Applicant--Immigration or Criminal History 
Records
    Several commenters suggested that USCIS allow individuals in 
removal proceedings to apply for provisional unlawful presence waivers 
if their removal proceedings had been administratively closed pursuant 
to ICE's Prosecutorial Discretion (PD) initiative. Several commenters 
also stated that this section of the form was confusing and/or 
inaccurate. Specifically, the commenters believed this section was 
inaccurate because it indicates that an applicant will be ineligible 
for a provisional unlawful presence waiver if the applicant answers 
``Yes'' to certain questions relating to other possible grounds of 
inadmissibility. The commenters also believed the questions were too 
broad to lead to a firm finding of inadmissibility and should be 
amended to say that the applicant ``may'' not be eligible and that 
USCIS ``may'' deny the application if the applicant answers ``Yes'' to 
those questions. These commenters also identified specific inaccuracies 
and provided suggested edits to revise this section.
    DHS has amended the final rule to indicate that an individual in 
removal proceedings may apply for a provisional unlawful presence 
waiver if the individual's removal proceedings are administratively 
closed and have not been recalendared at the time of filing the Form I-
601A. DHS is not limiting eligibility solely to individuals whose cases 
were closed pursuant to the ICE Prosecutorial Discretion (PD) 
initiative. Any alien whose removal proceedings are administratively 
closed and have not been recalendared at the time of filing the Form I-
601A, can apply for a provisional unlawful presence waiver. If USCIS 
approves the provisional unlawful presence waiver for an individual 
whose removal proceedings are administratively closed, the individual 
should seek termination or dismissal of his or her removal proceedings 
before departing the United States to appear at the immigrant visa 
interview to avoid possible delays in his or her immigrant visa 
processing or risk becoming ineligible for the immigrant visa based on 
another ground of inadmissibility. DHS has updated the form and its 
instructions accordingly.
    DHS has incorporated many of the commenters' suggested edits while 
rewriting this part of the form to clarify ambiguities and to correct 
inaccuracies. DHS also has revised the form and instructions to clarify 
that USCIS ``may'' find an applicant ineligible for a provisional 
unlawful presence waiver if USCIS determines that there is reason to 
believe the Department of State may find the applicant ineligible for a 
ground of inadmissibility other than unlawful presence. Regardless of 
whether USCIS approves or denies the provisional unlawful presence 
waiver, an immigrant visa applicant should present evidence of 
eligibility and any documents needed to establish admissibility to the 
consular officer at the time of his or her immigrant visa interview. 
The approval of a provisional unlawful presence waiver does not 
guarantee that the consular officer will find the applicant eligible 
for an immigrant visa. Also, the denial of a provisional unlawful 
presence waiver does not preclude the applicant from filing a new Form 
I-601A, in accordance with the form instructions, with the required 
fees and any additional documentation that he or she believes might 
establish his or her eligibility for the waiver. The applicant's case 
must still be pending with DOS, and the applicant must notify DOS that 
he or she intends to file a new Form I-601A.
    Alternatively, the applicant can file a Form I-601, Application for 
Waiver of Grounds of Inadmissibility with the USCIS Lockbox, after his 
or her immigrant visa interview at the U.S. Embassy or consulate 
abroad. The

[[Page 557]]

purpose of these eligibility questions is not for USCIS to pre-
adjudicate immigrant visa eligibility, but to limit the provisional 
unlawful presence waiver process to individuals whose only potential 
ground of inadmissibility is based on prior unlawful presence in the 
United States. All other potential grounds of inadmissibility and/or 
ineligibility need to be addressed with the consular officer during the 
immigrant visa interview.
    Finally, one commenter suggested that the form be enhanced by 
incorporating a detailed questionnaire, similar to that of Form I-601, 
aimed at uncovering other potential grounds of inadmissibility.
    DHS did not include a detailed questionnaire covering every 
potential ground of inadmissibility because the Form I-601A may only be 
used to waive unlawful presence. The purpose of the section entitled 
``Immigration or Criminal History Records'' is to give applicants an 
opportunity to explain any possible immigration or criminal history 
records which USCIS may uncover during routine system and background 
checks. DHS will not make any changes to the form based on this 
comment.
b. Part 2, Information About Immediate Relative Petitions and Consular 
Processing
    Many commenters suggested that DHS allow individuals to cancel or 
reschedule their immigrant visa interviews in order to seek a 
provisional unlawful presence waiver.
    In response to these suggestions, DHS considered a number of 
criteria and restrictions to make the process operationally manageable 
without creating delays in processing of other petitions or 
applications filed with USCIS or in the DOS immigrant visa process. By 
including aliens who were scheduled for an interview prior to the 
publication of this final rule, the projected volume of cases could 
significantly increase and would create backlogs not only in the 
provisional unlawful presence waiver process, but also in adjudication 
of other USCIS benefits. The increased volume would also adversely 
impact DOS and its immigrant visa process.
    For these reasons, DHS will not expand the provisional unlawful 
presence waiver to include individuals whose immigrant visa interviews 
were scheduled before the date of publication of this final rule 
January 3, 2013, even if the consulate or individual cancelled or 
rescheduled the immigrant visa interview after the date of publication 
of this final rule. DHS adds language to the final rule to clarify when 
an alien is ineligible for a provisional unlawful presence waiver 
because of a previously scheduled immigrant visa interview.
    USCIS will first look at whether the scheduled immigrant visa 
interview is based on the approved immediate relative petition (I-130 
or I-360) that accompanies the Form I-601A. If it is, USCIS will then 
look at the Department of State's Consular Consolidated Database (CCD) 
to determine the date on which the Department of State initially acted 
to schedule the applicant for his or her immigrant visa interview 
(i.e., the date of scheduling itself and not the date and time the 
applicant must appear for the interview).
    If the date that the Department of State initially acted to 
schedule the immigrant visa interview is prior to the date of 
publication of this final rule, January 3, 2013, then the alien is 
ineligible to apply for a provisional unlawful presence waiver. If the 
date that Department of State initially acted to schedule the immigrant 
visa interview is on or after the publication date of this final rule, 
the alien is eligible to apply for a provisional unlawful presence 
waiver. The actual date and time that the alien is scheduled to appear 
for the interview is not relevant for the eligibility determination. 
This rule applies even if the alien failed to appear for his or her 
interview, cancelled the interview, or requested that the interview be 
rescheduled. Therefore, USCIS may reject or deny any Form I-601A filed 
by an alien who USCIS determines that the Department of State, prior to 
the date of publication of this final rule, initially acted to schedule 
the alien's immigrant visa interview for the approved immediate 
relative petition upon which the Form I-601A is based. See section 
212.7(e)(4)(iv).
    An alien who is ineligible to apply for a provisional unlawful 
presence waiver because of a previously scheduled immigrant visa 
interview may still qualify for a provisional unlawful presence waiver 
if he or she has a new DOS immigrant visa case because (1) DOS 
terminated the immigrant visa registration associated with the 
previously scheduled interview, and they have a new immediate relative 
petition; or (2) the alien has a new immediate relative petition filed 
on his or her behalf by a different petitioner.
    USCIS will reject or deny any Form I-601A filed by an alien who was 
scheduled for an interview prior to the date of publication of this 
final rule, even if the alien's interview is rescheduled after the date 
of publication of this final rule. DHS has updated the form and its 
instructions accordingly.
c. Part 3, Information About Qualifying Relative
    Many commenters asked DHS to allow eligible applicants to show 
extreme hardship to a LPR spouse or parent, if applicable, since the 
statute authorizes a waiver of unlawful presence based on a showing of 
extreme hardship to a spouse or parent who is either a U.S. citizen or 
LPR.
    DHS has considered these comments but is not adopting the suggested 
change. As stated in the proposed rule, a primary purpose for creating 
the provisional unlawful presence waiver process is to reduce the 
separation of U.S. citizens and their immediate relatives. Focusing on 
hardship to U.S. citizens is consistent with permissible distinctions 
that may be drawn between U.S. citizens and aliens. It also is 
consistent with the Secretary's authority to administer the immigration 
laws and determine the most efficient means for effectuating the waiver 
process. See 77 FR at 19908.
d. Interviews
    One commenter suggested that when USCIS requires an interview for a 
provisional unlawful presence waiver, USCIS should allow the applicant 
to choose to either appear at a local USCIS field office for an in-
person interview or have a video-conferenced interview with an 
adjudicator at a USCIS service center using appropriate technology 
(e.g., Skype).
    DHS reviewed these comments but did not adopt the suggestions. DHS 
does not anticipate that many provisional unlawful presence waiver 
applicants will require an in-person interview. Also, USCIS does not 
conduct interviews at the NBC, namely because of its remote location 
and the type of benefit requests adjudicated by that center, which are 
generally paper-based decisions. USCIS also will not conduct video 
interviews in lieu of in-person interviews when such interviews are 
required. Therefore, DHS will not make the suggested change to the 
form.
2. Comments on Instructions
a. Eligibility Criteria--Pending Adjustment Applications
    Several commenters were confused about what it means to have a 
pending application for adjustment of status and did not understand why 
this would affect eligibility for a provisional unlawful presence 
waiver.
    DHS will not remove the restriction for individuals who have an 
application for adjustment of status pending with

[[Page 558]]

USCIS. Individuals who are eligible to obtain LPR status while inside 
the United States through the adjustment of status process and intend 
to pursue LPR status through that process do not need the provisional 
unlawful presence waiver. The provisional unlawful presence waiver is 
only valid for the purpose of seeking an immigrant visa outside the 
United States. To avoid confusion, DHS has updated the form 
instructions to clarify that this restriction only applies to 
individuals with a pending Form I-485, Application to Register 
Permanent Residence or Adjust Status.
b. Limitations on Filing of Provisional Unlawful Presence Waivers
    Many commenters suggested that DHS remove the restriction to the 
number of times an individual may seek a provisional unlawful presence 
waiver or modify it to allow re-filing of the provisional unlawful 
presence waiver application.
    DHS considered these comments and has changed the final rule to 
reflect that if an individual's provisional unlawful presence waiver 
request is denied or withdrawn prior to final adjudication, the 
individual may file a new Form I-601A, in accordance with the form 
instructions, with the required fees and any additional documentation 
that he or she believes might establish his or her eligibility for the 
waiver. The applicant's case must still be pending with DOS and the 
applicant must notify DOS of his or her intent to file a new Form I-
601A.
    Alternatively, the individual can file a Form I-601, Application 
for Waiver of Grounds of Inadmissibility with the USCIS Lockbox, after 
he or she attends the immigrant visa interview and after DOS 
conclusively determines that the individual is inadmissible. DHS has 
updated the form and instructions accordingly.
c. Qualifying Relatives
    One commenter suggested adding ``child'' as a qualifying relative 
for establishing extreme hardship. DHS cannot adopt this suggestion 
because Congress limited the qualifying relationship for purposes of 
establishing extreme hardship to spouses or parents. DHS cannot change 
this statutory requirement.
d. Child Status Protection Act
    One commenter asked DHS to clarify in the Form I-601A instructions 
how the provisional unlawful presence waiver relates to children who 
benefit from the CSPA. DHS has added language to the Form I-601A 
instructions to make clear applicants will remain eligible for a 
provisional unlawful presence waiver as long as the applicants remain 
``immediate relatives'' as defined in the INA, as amended by the CSPA. 
Thus, an aged-out child may still qualify as an ``immediate relative'' 
for purposes of access to the provisional unlawful presence waiver 
process as long as the child is classified as an immediate relative 
under the INA.
e. Statement From Applicant
    One commenter suggested adding a sentence in Part 5 of the 
instructions to explain that applicants may supplement their statements 
on extreme hardship and factors warranting a favorable exercise of 
discretion with an attached letter. DHS added the information as 
requested to the Form I-601A instructions.
f. Penalties
    One commenter suggested adding a reminder in the instructions that 
applicants read the section entitled ``Penalties'' before the applicant 
signs the application. DHS added the reminder on the form and in the 
form instructions, as requested.
g. Required Documents--Check List
    One commenter suggested adding a checklist to assist applicants 
with information on the types of documents and statements that should 
be submitted with the provisional unlawful presence waiver application. 
DHS added a separate section with a checklist as requested.
h. Unauthorized Practice of Immigration Law
    One commenter suggested adding a warning regarding the unauthorized 
practice of immigration law.
    DHS agrees with this suggestion. In 2011, USCIS started an 
initiative--the Unauthorized Practice of Immigration Law (UPIL) 
initiative--to educate the public about potential fraud and scams in 
the immigration context. USCIS has posted information about the UPIL 
initiative on its Web site. DHS encourages applicants to review the 
information at www.uscis.gov/avoidscams. DHS also has added a link to 
this Web site on the form instructions.

J. Miscellaneous Comments

1. Statutory Changes
    A large number of supporters of the rule indicated that the 
proposed rule did not go far enough. The commenters asked DHS to allow 
individuals who were eligible for the provisional unlawful presence 
waiver but ineligible for adjustment of status to remain in the United 
States and adjust their status to a LPR. Several commenters asked DHS 
to reinstate INA section 245(i), 8 U.S.C. 1255(i). Others asked if DHS 
could reduce the number of years an alien must remain outside the 
United States because of unlawful presence under INA section 
212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B). A few commenters also asked if 
DHS could include a waiver of INA section 212(a)(6)(C)(ii), 8 U.S.C. 
1182(a)(6)(C)(i) (false claim to U.S. citizenship). Some commenters 
asked DHS to grant waivers even if the applicants did not meet all 
statutory requirements. One commenter said that DHS should eliminate 
the discretionary portion of the waiver in its entirety. Others wanted 
DHS to simply grant legal status to individuals married to U.S. 
citizens, irrespective of whether they had an approved petition or 
needed a provisional unlawful presence waiver. They argued that if an 
individual is the spouse of a U.S. citizen then such an individual 
should simply be able to become a LPR of the United States.
    Congress has prescribed the statutory requirements for obtaining 
LPR status through adjustment of status in the United States. Congress 
also established the current grounds of inadmissibility and the 
conditions for any waivers associated with such grounds. DHS does not 
have the authority to change or dispense with those statutory 
requirements. DHS cannot reinstate INA section 245(i), 8 U.S.C. 
1225(i), or take any action that would grant permanent resident status 
to individuals who do not meet the statutory requirements for that 
status. Only Congress can amend the statutory requirements that 
individuals must meet to qualify for adjustment of status. DHS, 
therefore, cannot adopt these recommendations. However, DHS supports 
comprehensive immigration reform, and DHS will implement any 
legislation that may be enacted by Congress, including any authorized 
extension of INA section 245(i), 8 U.S.C. 1225(i).
2. Fraud Detection and Prevention; National Security
    Some commenters argued that the Federal Government's focus should 
be on enforcement and deterring illegal entry and marriage fraud. 
Others opined that the provisional unlawful presence waiver process was 
a ``back door'' through which illegal immigrants who pose a threat to 
national security could be granted a waiver and LPR status.
    A core mission of DHS is to protect national security, public 
safety, and the

[[Page 559]]

integrity of the immigration process. DHS has a number of preventative 
measures in place, as provided by law and through agency policy, to 
address matters relating to national security and fraud. DHS 
incorporates these measures through regulations and standard operating 
procedures that bolster the adjudications process. USCIS's Fraud 
Detection and National Security (FDNS) Directorate focuses on its fraud 
and national security mission. FDNS investigates fraud and national 
security issues relating to the immigration benefit process and makes 
appropriate referrals to ICE, DOJ, and other law enforcement agencies. 
USCIS has established standard operating procedures in field offices 
for referrals to FDNS on potential fraud cases that may require 
additional review. USCIS's Office of Policy and Strategy is responsible 
for developing future benefit fraud assessments. For fraud prevention, 
FDNS has initiated fraud training for Immigration Services Officers 
(ISOs) to detect any patterns or increase in fraudulent practices in a 
particular application type or area of the United States. Additionally, 
USCIS already has processes in place, including requiring additional 
interviews and home site visits, conducted by specially trained 
immigration officers throughout the United States, to assess whether a 
marriage was entered into to evade immigration laws. These processes 
provide strong tools for combating potential fraud.
    Congress provided several measures aimed at preventing marriage 
fraud, focusing especially on the potential for fraud in marriages of 
less than two years' duration. For instance, Congress mandated that 
aliens married less than two years generally are subject to conditional 
resident status for two years after admission as an immigrant. See INA 
section 216, 8 U.S.C. 1186a; 8 CFR part 216; 8 CFR 235.11. Once USCIS 
approves an immediate relative petition for an alien married to a U.S. 
citizen, and DOS determines that the alien is admissible and eligible 
for an immigrant visa, the alien can seek admission to the United 
States as an LPR. If, however, the alien married the U.S. citizen less 
than two years before the date of admission, the alien is admitted 
conditionally for a two-year period.
    In general, the U.S. citizen petitioner and the conditional 
permanent resident must jointly seek to remove the conditions within 
the 90-day period immediately preceding the second anniversary of the 
date the alien obtained conditional permanent residence status. If the 
U.S. citizen petitioner and the conditional permanent resident fail to 
do so, the alien's conditional permanent resident status is terminated 
automatically, and any waiver granted in connection with the status 
under INA sections 212(h) or (i), 8 U.S.C. 1182(h) or (i), is 
automatically terminated. Furthermore, if USCIS determines that the 
marriage was entered into to evade the immigration laws, USCIS cannot 
approve future petitions for that alien. See INA section 204(c), 8 
U.S.C. 1154(c). USCIS also reserves the authority, as it does generally 
for other benefit requests, to interview the alien and the U.S. citizen 
spouse in connection with the provisional unlawful presence waiver 
application in the exercise of discretion.
    Another preventive measure is the provisional unlawful presence 
waiver requirement that the applicant appear for biometrics capture at 
a USCIS Application Support Center (ASC). The biometrics requirement 
allows USCIS to run thorough background and security checks on 
individuals seeking an immigration benefit to determine if an alien is 
not only potentially subject to other grounds of inadmissibility or not 
eligible for a favorable exercise of discretion, but also whether the 
alien poses a national security or public safety risk.
3. Backlog Reduction
    One commenter suggested that DHS first clear all application 
backlogs abroad and at the AAO before implementing any new process. 
Commenters also indicated that DHS should give special consideration to 
individuals who have a pending waiver application that was filed 
abroad.
    USCIS has already undertaken several efforts to reduce the backlogs 
in adjudication, both abroad and at the AAO. As of June 4, 2012, USCIS 
has implemented centralization of certain Form I-601 filings in the 
United States. USCIS has dedicated additional resources on a temporary 
basis to expeditiously process the cases filed prior to centralization. 
USCIS anticipates that the residual cases filed prior to centralization 
and during the transition period that recently ended on December 4, 
2012, will be completed within about six months of the effective date 
of this final rule. By moving most of the adjudication case load to the 
United States for these cases, USCIS expects to reduce the filing and 
processing times for overseas filers of Form I-601.
    The AAO has also undertaken various backlog reduction efforts in 
the context of administrative appeals. Since July 2011, the waiver 
adjudication branch of the AAO has reduced processing time from 27 to 
19 months, and reduced the number of cases in the backlog by more than 
1,400. USCIS anticipates this rate of reduction to continue and plans 
on reducing processing time for waivers to 6 months by June 2013. These 
various efforts demonstrate the Department's continued commitment to 
timely adjudication of waivers and customer service with the resources 
available.
4. Other Immigrant Visa Requirements
    A few commenters suggested that individuals who are eligible for 
the provisional unlawful presence waiver should have the option to 
complete the medical examination required for immigrant visa issuance 
in either the United States or abroad. DHS did not adopt this 
suggestion.
    DOS has jurisdiction for health-related inadmissibility 
determinations in the overseas immigrant visa application context; DOS, 
therefore, requires immigrant visa applicants to have the required 
medical examination performed by a DOS-designated panel physician 
abroad. See 22 CFR 42.66. DOS and the Centers for Disease Control and 
Prevention within the Department of Health and Human Services set the 
criteria and parameters for these medical exams depending on country 
conditions. While USCIS has designated civil surgeons for 
certifications in other contexts, these civil surgeons are not 
recognized by DOS and therefore cannot complete the required medical 
examination for purposes of the visa issuance abroad. Operationally, 
allowing provisional unlawful presence waiver applicants to complete 
the medical examination in the United States could cause delays and 
backlogs at DOS. DHS, therefore, will not adopt this suggestion.
5. Departure Requirement and Third-Country Processing
    Several commenters asked why approved provisional unlawful presence 
waiver applicants are required to return to their home country to 
complete the immigrant visa requirement. The commenters suggested that 
these applicants should not have to travel to a dangerous place like 
Ciudad Juarez, Mexico, but instead complete their process in a safe 
third country like Canada. Many commenters said that requiring 
individuals to depart would have a significant impact on U.S. citizen 
family members, especially if the individual is the primary financial 
provider for the family. The commenters also said that departure would 
cause U.S. citizen family members to become dependent on the U.S. 
Government if

[[Page 560]]

the immediate relative had to remain outside of the United States for a 
prolonged period of time. Several other commenters suggested that DHS 
eliminate the departure requirement altogether or at least allow 
provisional unlawful presence waiver applicants to be interviewed in 
the United States or pick up their immigrant visa at their country's 
embassy in the United States. Finally, several Congressional commenters 
urged DHS to coordinate with DOS so that provisional unlawful presence 
waiver applicants do not have to return home. The commenters stated 
that the departure requirement should be eliminated entirely or, 
alternatively, that DOS should identify additional consulates for 
processing of the provisional unlawful presence waiver and immigrant 
visa issuance. The commenters also suggested that DOS's NVC could 
assign immigrant visa petitions and provisional unlawful presence 
waiver applications to designated consular posts in safe and convenient 
locations, citing the authority as part 9 of the Foreign Affairs Manual 
(FAM) section 42.61, Note 2.1. Finally, the commenters said that DHS 
should consider using its parole authority broadly to eliminate the 
need for immediate family members to travel abroad to obtain an 
immigrant visa to which they are entitled under current law.
    DOS has jurisdiction over consular processing and setting the 
location for immigrant visa application filing and interviews. See 22 
CFR 42.61. DHS, therefore, will not alter this requirement and, as 
stated above, cannot change the statutory requirements for adjustment 
of status in the United States. In response to the request for DHS to 
broadly use its parole authority for provisional unlawful presence 
waiver applicants, DHS will continue to exercise its authority to 
parole applicants for admission into the United States on a case-by-
case basis, reviewing the unique circumstances and facts that relate to 
each individual's case to determine whether the individual's 
circumstances warrant a discretionary grant of parole based on urgent 
humanitarian factors or as a significant public benefit. INA section 
212(d)(5), 8 U.S.C. 1182(d)(5). With this rule, DHS is not changing its 
current policy on the use of its parole authority.
6. Comprehensive Immigration Reform
    Many commenters, including numerous individuals who signed group 
petitions, said that the focus should be on comprehensive immigration 
reform (CIR) rather than a ``patchwork'' of small initiatives that do 
not fix the current broken immigration system as a whole. While the 
commenters generally supported some type of CIR, their views on what 
should be included in a CIR bill varied significantly.
    Some commenters stated that CIR is needed to legalize the current 
immigrant population in the United States and to create guest worker 
programs that will benefit the U.S. economy. The commenters argued that 
legalization will result in significant economic benefits to the United 
States and help solve many of our current immigration problems. These 
commenters supported the idea of reuniting U.S. citizen families and 
stated that the Administration should focus on legal immigration and 
naturalization to ensure that immigrants are fully aware of the rights 
and opportunities available to them.
    Many commenters opposed the provisional unlawful presence waiver 
process because they believed it would encourage illegal immigration 
and that it was a form of ``backdoor amnesty.'' Some commenters 
believed that Congress should enact stronger penalties against those 
who enter illegally and enforce the current laws against those who 
deliberately violated U.S. immigration law. The commenters also 
believed that the focus should be on border security and legal 
immigration, not on aliens who made the choice to come to the United 
States illegally. One commenter noted that the current immigration 
policy was not working and that the United States needs a 
``comprehensive top down rewrite'' of all the immigration laws. A few 
commenters were opposed to the provisional unlawful presence waiver 
process because they believed it was politically motivated and not 
designed to fix the current immigration system.
    Fixing the current immigration system is a top priority for DHS, 
and the Administration is committed to comprehensive immigration 
reform. Congress has the power to amend the immigration laws to create 
a workable system that unites families, improves the U.S. economy, and 
preserves national security and public safety. USCIS will do everything 
possible to prepare for successful implementation of any comprehensive 
immigration reform legislation and ensure that the integrity of the 
U.S. immigration system is maintained.
7. Transformation
    Several commenters urged DHS to convert the provisional unlawful 
presence waiver process and immigrant visa process to an electronic 
process. The commenters believed that if applicants and attorneys could 
file online, they would save money, time, paper, and the mailing costs 
that currently accompany paper filings. The commenters stated that E-
filing is consistent with USCIS's current Transformation Initiative.
    DHS agrees with the commenters that it should move toward 
electronic filing of immigration benefits. In fact, USCIS already is 
transforming its immigration benefit process and recently launched its 
new electronic filing and adjudication system known as USCIS Electronic 
Immigration System (USCIS ELIS). USCIS ELIS allows individuals to 
establish a USCIS ELIS online account and, currently, to apply online 
for an extension or change of their nonimmigrant status for certain 
visa types. USCIS ELIS also enables USCIS officers to review and 
adjudicate online filings from multiple agency locations across the 
country. USCIS believes that the Transformation Initiative is an 
important step forward for the agency and is working to expand system 
features and functionality in additional releases this calendar year 
and beyond. In future releases of USCIS ELIS, USCIS will add form types 
and functions, including waivers of inadmissibility, gradually 
expanding the system to cover filing and adjudication of all USCIS 
immigration benefits. USCIS will notify the public when such expansions 
and additions of form types occur.

K. Comments on the EO 12866/13563 Analysis

    DHS received several comments on the volume projection included in 
the analysis, especially as it relates to the DHS projection of 
additional demand. Many commenters believed that application volume is 
understated. One commenter stated that the Federal Government stands to 
earn over one billion dollars from the change. Another commenter 
suggested that DHS examine rates of use of health care and public 
education as points for comparison in determining demand for the 
provisional unlawful presence waiver. This commenter suggested that 
using undocumented immigrant access to health care and public education 
as models will reveal that the provisional unlawful presence waiver is 
at risk for underuse. Many commenters noted that the costs of obtaining 
an immigrant visa limit those who can afford to apply for the 
provisional unlawful presence waiver and that increasing the cost with 
required biometric submission is another barrier to participation. A 
commenter was concerned the cost of this rule would add to the national 
debt. Another commenter argued that current

[[Page 561]]

immigration laws and the provisional unlawful presence waiver rule 
disproportionately impact children of immigrant families who have a 
greater likelihood to be either low-income or living under the poverty 
line and are not as likely to have resources needed to make use of the 
waiver option.
    As stated repeatedly throughout the analysis, DHS was unable to 
precisely project application volumes for the provisional unlawful 
presence waiver due to unavailability of data on those who are 
unlawfully present. Historical estimates show only aliens who have 
taken the steps to obtain an immigrant visa. DHS did conduct a 
reasonable methodological approach based on those who have made use of 
inadmissibility waivers under the current process.
    DHS does not believe that using public health and education records 
would better refine our estimates. As the commenter noted, these 
services are underutilized by undocumented immigrants. Furthermore, 
neither these models nor the others that were examined differentiate 
undocumented immigrants with U.S. citizen immediate relatives from 
those undocumented immigrants with other immigrant/citizen family 
compositions. Since only immediate relatives of U.S. citizens may apply 
for provisional unlawful presence waivers, DHS does not believe that 
using the suggested models will offer a more reliable means of 
estimating the additional demand.
    While DHS acknowledges that the costs of obtaining an immigrant 
visa may be a constraint on demand, and agree these costs will have 
more impact on low-income immigrant families, the only additional cost 
of the provisional unlawful presence waiver process beyond the existing 
waiver process is the costs incurred for submitting biometrics. 
Relative to the other costs, biometric costs represent approximately 
eight percent of the total cost of obtaining an immediate relative 
immigrant visa. The costs of obtaining an immigrant visa are not costs 
of this rule. Finally, this final rule will not add to the national 
debt. As explained in the proposed rule at 77 FR 19919, this final rule 
is not expected to impose additional costs on the federal government 
since the fee revenues collected should offset the form processing 
cost.

V. Regulatory Amendments

    DHS adopted most of the proposed regulatory amendments without 
change, except for the following provisions noted below:

1. Section 103.7(c)(3)(i)

    In the proposed rule, DHS noted in the supplementary text that 
applicants for a provisional unlawful presence waiver cannot seek a fee 
waiver for the Form I-601A filing fees or the required biometric fees. 
See 77 FR at 19910. DHS incorrectly referenced proposed regulatory text 
at 8 CFR 103.7(b)(1)(i)(C) and inadvertently omitted the correct 
citation to the regulatory provision being amended and the amendatory 
text. DHS has corrected this error and has included an amendment to 8 
CFR 103.7(c)(3)(i) in this final rule to clarify that fee waivers are 
not available for the biometric fee or filing fees for the Form I-601A. 
See section 103.7(c)(3)(i).

2. Section 212.7(a)(4)(iv)

    DHS proposed an amendment to 8 CFR 212.7(a)(4) to provide that 
termination of an alien's conditional LPR status also would result in 
automatic revocation of an approved waiver of inadmissibility. See 77 
FR at 19912 and 19921. Several commenters noted that INA section 
216(f), 8 U.S.C. 1186a(f), only allows for automatic revocation of 
waivers of inadmissibility approved under INA sections 212(h) and (i), 
8 U.S.C. 1182(h) and (i). DHS agrees and has revised the amendment to 8 
CFR 212.7(a)(4) to clarify that automatic revocation of approved 
waivers upon termination of conditional resident status only applies to 
approved waivers based on INA section 212(h), 8 U.S.C. 1182(h) (waivers 
for certain criminal offenses) and INA section 212(i), 8 U.S.C. 1182(i) 
(waivers for fraud or willful misrepresentation of a material fact). 
See section 212.7(a)(4)(iv).

3. Section 212.7(e)(1)

    During discussions about the proposed provisional unlawful presence 
waiver process and how it would affect aliens in removal proceedings, a 
question arose regarding the authority of DOJ IJs and whether IJs would 
adjudicate Forms I-601A for aliens in removal proceedings. DHS 
determined that it would be more efficient and appropriate to have Form 
I-601A waivers centralized and adjudicated by one agency, USCIS, 
especially given the streamlined nature of the process and the need for 
close coordination with DOS once a waiver is decided. DHS, therefore, 
added a new paragraph to clarify that the Application for Provisional 
Unlawful Presence Waiver, Form I-601A, will be filed only with USCIS 
even if an alien is in removal proceedings before EOIR. See section 
212.7(e)(1).\17\
---------------------------------------------------------------------------

    \17\ Under 8 CFR 1240.1(a)(1)(ii), immigration judges (IJs) have 
authority to adjudicate certain waiver applications made by aliens 
in removal proceedings. However, IJs will not be adjudicating 
provisional unlawful presence waiver applications under this rule 
because all aliens who are in removal proceedings--including those 
whose cases were administratively closed and have been recalendared 
or who are subject to an administratively final order of removal are 
ineligible for the provisional unlawful presence waiver by operation 
of this final rule. See 8 CFR 212.7(e)(4).
---------------------------------------------------------------------------

4. Section 212.7(e)(2)

    DHS restructured this provision and added language to make clear 
that approval of the provisional unlawful presence waiver is 
discretionary and does not constitute a grant of any lawful immigration 
status or create a period of stay authorized by the Secretary for 
purposes of INA section 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B). See 
section 212.7(e)(2)(i). DHS also clarified that a pending or approved 
provisional unlawful presence waiver does not authorize any interim 
benefits such as employment authorization or advance parole. See 
section 212.7(e)(2)(ii).

5. Section 212.7(e)(3)

    Many commenters asked DHS to expand eligibility for the provisional 
unlawful presence waiver process to other categories of aliens seeking 
to immigrate to the United States.
    DHS considered the commenters' suggestions but is limiting the 
provisional unlawful presence waiver to immediate relatives of U.S. 
citizens. After assessing the effectiveness of the provisional unlawful 
presence waiver process and its operational impact, DHS, in 
consultation with DOS and other affected agencies, will consider 
expanding the provisional unlawful presence waiver process to other 
categories.

6. Former Section 212.7(e)(4)(ii)(H)

    DHS initially proposed to reject a provisional unlawful presence 
waiver application if an alien has not indicated on the application 
that the qualifying relative is a U.S. citizen spouse or parent. See 77 
FR at 19922. DHS has determined that this criterion is more appropriate 
for an adjudicative decision and that this assessment should not be 
made through a review during the intake process. Thus, DHS has deleted 
this rejection criterion in the final rule.

7. Section 212.7(e)(4)(iv)

    DHS proposed excluding aliens from the provisional unlawful 
presence waiver process who were already scheduled for their immigrant 
visa

[[Page 562]]

interviews with DOS. See 77 FR at 19921. DHS has retained this 
requirement. DHS now adds language to the final rule to clarify when an 
alien is ineligible for a provisional unlawful presence waiver because 
of a previously scheduled immigrant visa interview.
    USCIS will first look at whether the scheduled immigrant visa 
interview is based on the approved immediate relative petition (I-130 
or I-360) that accompanies the Form I-601A. If it is, USCIS will then 
look at the Department of State's Consular Consolidated Database (CCD) 
to determine the date on which the Department of State initially acted 
to schedule the applicant for his or her immigrant visa interview 
(i.e., the date of scheduling itself and not the date and time the 
applicant must appear for the interview).
    If the date that the Department of State initially acted to 
schedule the immigrant visa interview is prior to the date of 
publication of this final rule, January 3, 2013, then the alien is 
ineligible to apply for a provisional unlawful presence waiver. If the 
date that Department of State initially acted to schedule the immigrant 
visa interview is on or after the publication date of this final rule, 
the alien is eligible to apply for a provisional unlawful presence 
waiver. The actual date and time that the alien is scheduled to appear 
for the interview is not relevant for the eligibility determination. 
This rule applies even if the alien failed to appear for his or her 
interview, cancelled the interview, or requested that the interview be 
rescheduled. Therefore, USCIS may reject or deny any Form I-601A filed 
by an alien who USCIS determines that the Department of State, prior to 
the date of publication of this final rule, initially acted to schedule 
the alien's immigrant visa interview for the approved immediate 
relative petition upon which the Form I-601A is based. See section 
212.7(e)(4)(iv).
    An alien who is ineligible to apply for a provisional unlawful 
presence waiver because of a previously scheduled immigrant visa 
interview may still qualify for a provisional unlawful presence waiver 
if he or she has a new DOS immigrant visa case because (1) DOS 
terminated the immigrant visa registration associated with the 
previously scheduled interview, and they have a new immediate relative 
petition; or (2) the alien has a new immediate relative petition filed 
on his or her behalf by a different petitioner.

8. Section 212.7(e)(4)(v)

    DHS initially proposed excluding all aliens who were in removal 
proceedings from the provisional unlawful presence waiver process, 
except those whose: (1) Removal proceedings had been terminated or 
dismissed; (2) Notices to Appear (NTAs) had been cancelled; and (3) 
cases had been administratively closed but subsequently were reopened 
to grant voluntary departure. See 77 FR at 19922. In this final rule, 
DHS allows aliens in removal proceedings to participate in this new 
provisional unlawful presence waiver process but only if their removal 
proceedings are administratively closed and have not been recalendared 
at the time of filing the Form I-601A. See section 212.7(e)(4)(v). 
Through this final rule, the Form I-601A and its accompanying 
instructions, and additional information published on the USCIS Web 
site, DHS also will notify such applicants that, if granted a 
provisional unlawful presence waiver, applicants should seek 
termination or dismissal of their removal proceedings. The request for 
termination or dismissal should be granted before they depart for their 
immigrant visa interviews to avoid possible delays in their immigrant 
visa processing or risk becoming ineligible for the immigrant visa 
based on another ground of inadmissibility. See section 212.7(e)(2). 
Finally, DHS made conforming changes to the filing requirements in 
section 212.7(e)(5)(i) to include aliens who are in removal proceedings 
that are administratively closed and have not been recalendared at the 
time of filing the Form I-601A.

9. Section 212.7(e)(4)(ix)

    For operational reasons, DHS initially proposed rejecting 
applications filed by aliens who had previously filed a Form I-601A 
provisional unlawful presence waiver application with USCIS. DHS 
designed the provisional unlawful presence waiver process to streamline 
waiver and immigrant visa processing by closely tying adjudication of 
the Form I-601A to the NVC's immigrant visa processing schedule. DHS 
considered the potential impact of multiple filings on this schedule, 
the possible delays to the immigrant visa process, and the potential 
for agency backlogs.
    Many commenters, however, expressed concern that limiting the 
program to one-time filings could potentially exclude individuals who 
otherwise would qualify for the provisional unlawful presence waiver.
    Upon consideration of these comments, DHS agrees that an alien 
could have compelling reasons for filing another provisional unlawful 
presence application, especially in cases where an alien's 
circumstances have changed or the alien was a victim of individuals or 
entities not authorized to practice immigration law. For these reasons, 
DHS agrees that a one-time filing limitation is too restrictive and is 
removing the single-filing limitation in this final rule. If an 
individual's provisional unlawful presence waiver request is denied or 
withdrawn, the individual may file a new Form I-601A, in accordance 
with the form instructions and with the required fees. The applicant's 
case must still be pending with DOS, and the applicant must notify DOS 
that he or she intends to file a new Form I-601A. In the case of a 
withdrawn Form I-601A, USCIS will not refund the filing fees because 
USCIS has already undertaken steps to adjudicate the case.
    Alternatively, an individual who withdraws his or her Form I-601A 
filing prior to final adjudication, or whose Form I-601A is denied, can 
apply for a Form I-601, Application for Waiver of Grounds of 
Inadmissibility with the USCIS Lockbox, after he or she attends the 
immigrant visa interview and after DOS conclusively determines that the 
individual is inadmissible. DHS, therefore, has removed this provision 
from the final rule.

10. Section 212.7(e)(5)(ii)

    DHS corrected a typographical error in the prefatory language to 
this section, removing the term ``application'' the second time it 
appears in the paragraph. See section 212.7(e)(5)(ii).

11. Section 212.7(e)(5)(ii)(A)

    DHS proposed a list of rejection criteria for Forms I-601A filed at 
the Lockbox, including the criterion to reject for failure to pay the 
required or correct fee for the waiver application. See 77 FR 19922. 
DHS inadvertently referenced the biometric fee as a basis for rejection 
in the supplementary information. See 77 FR 19911. DHS has modified the 
regulatory text to make clear that a Form I-601A will only be rejected 
for failure to pay the required or correct filing fee and not the 
biometric fee. See section 212.7(e)(5)(ii)(A). Individuals who have 
failed to pay the required or correct biometric fee will be notified of 
that failure. 8 CFR 103.17(b). USCIS will not process or adjudicate 
applications filed by individuals who do not pay the required or 
correct biometric fee.

12. Section 212.7(e)(5)(ii)(G)

    DHS proposed rejecting provisional unlawful presence waiver 
applications filed by aliens who were already scheduled for their 
immigrant visa interviews with DOS. See 77 FR at

[[Page 563]]

19921. DHS has retained this requirement. DHS now adds language to the 
final rule to clarify when an alien is ineligible for a provisional 
unlawful presence waiver because of a previously scheduled immigrant 
visa interview.
    USCIS will first look at whether the scheduled immigrant visa 
interview is based on the approved immediate relative petition (I-130 
or I-360) that accompanies the Form I-601A. If it is, USCIS will then 
look at the Department of State's Consular Consolidated Database (CCD 
to determine the date on which the Department of State initially acted 
to schedule the applicant for his or her immigrant visa interview 
(i.e., the date of scheduling itself and not the date and time the 
applicant must appear for the interview).
    If the date that the Department of State initially acted to 
schedule the immigrant visa interview is prior to the date of 
publication of this final rule, January 3, 2013, then the alien is 
ineligible to apply for a provisional unlawful presence waiver. If the 
date that Department of State initially acted to schedule the immigrant 
visa interview is on or after the publication date of this final rule, 
the alien is eligible to apply for a provisional unlawful presence 
waiver. The actual date and time that the alien is scheduled to appear 
for the interview is not relevant for the eligibility determination. 
This rule applies even if the alien failed to appear for his or her 
immigrant visa interview, cancelled the interview, or requested that 
the interview be rescheduled. Therefore, USCIS may reject or deny any 
Form I-601A filed by an alien if USCIS determines that the Department 
of State, prior to the date of publication of this final rule, 
initially acted to schedule an initial immigrant visa interview for the 
approved immediate relative petition upon which the Form I-601A is 
based. See section 212.7(e)(4)(iv).
    An alien who is ineligible to apply for a provisional unlawful 
presence waiver because of a previously scheduled immigrant visa 
interview may still qualify for a provisional unlawful presence waiver 
if he or she has a new DOS immigrant visa case because (1) DOS 
terminated the immigrant visa registration associated with the 
previously scheduled interview, and they have a new immediate relative 
petition; or (2) the alien has a new immediate relative petition filed 
on his or her behalf by a different petitioner. See section 
212.7(e)(5)(ii)(G).

13. Section 212.7(e)(9)

    DHS initially proposed that aliens who were denied a provisional 
unlawful presence waiver could not file a new Form I-601A. Instead, 
such aliens would have to leave the United States for their immigrant 
visa interviews and file a Form I-601, Application for Waiver of 
Grounds of Inadmissibility, after the Department of State determined 
they were inadmissible. Some commenters were concerned that limiting 
aliens to a single filing of an I-601A would potentially bar aliens 
from qualifying for a provisional unlawful presence waiver, especially 
when they may have experienced changed circumstances that would result 
in extreme hardship to the U.S. citizen spouse or parent. In light of 
these concerns, DHS has amended this final rule to allow aliens who are 
denied a provisional unlawful presence waiver to file another Form I-
601A, based on the original approved immigrant visa petition. Denial of 
an application for a provisional unlawful presence waiver is without 
prejudice to the alien filing another provisional unlawful presence 
waiver application under paragraph (e) provided the alien meets all of 
the requirements. The alien's case must be pending with the Department 
of State and the alien must notify the Department of State that he or 
she intends to file a new Form I-601A.

14. Section 212.7(e)(10)

    DHS has amended this provision to allow an applicant to withdraw a 
previously-filed provisional unlawful presence waiver application prior 
to final adjudication and file another Form I-601A. See section 
212.7(e)(10).

15. Section 212.7(e)(14)(iv)

    DHS clarified the language in section 212.7(e)(14)(v) to specify 
that a provisional unlawful presence waiver is automatically revoked if 
the alien, at any time before or after the approval of the provisional 
unlawful presence waiver, or before the immigrant visa is issued, 
reenters or attempts to reenter the United States without being 
admitted or paroled. See section 212.7(e)(14)(iv).

VI. Statutory and Regulatory Requirements

A. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among 
other things, to curb the practice of imposing unfunded Federal 
mandates on State, local, and tribal governments. Title II of the Act 
requires each Federal agency to prepare a written statement assessing 
the effects of any Federal mandate in a proposed or final agency rule 
that may result in a $100 million or more expenditure (adjusted 
annually for inflation) in any one year by State, local, and tribal 
governments, in the aggregate, or by the private sector.
    Although this rule does exceed the $100 million expenditure 
threshold (adjusted for inflation), this rulemaking does not contain 
such a mandate. The provisional unlawful presence waiver process is a 
voluntary program for aliens that are immediate relatives of U.S. 
citizens intending to become legal permanent residents. The 
requirements of Title II of the Act, therefore, do not apply and DHS 
has not prepared a statement under the Act.

B. Small Business Regulatory Enforcement Fairness Act of 1996

    DHS considers this rule a major rule as defined by section 804 of 
the Small Business Regulatory Enforcement Fairness Act of 1996. DHS was 
not able to estimate with precision the increase in demand due to this 
rule; therefore, we estimated costs using range scenario analysis. The 
final rule expanded eligibility for the provisional unlawful presence 
waiver process to aliens in removal proceedings whose cases have been 
or will be administratively closed, provided that the case has not been 
recalendared at the time of Form I-601A filing and that the alien is 
otherwise eligible. Due directly to this expansion, there is a 
possibility that the rule will have an impact on the economy of $100 
million or more in the first year of implementation. If demand for the 
provisional unlawful presence waiver increases by 50 percent, 75 
percent, or 90 percent, then the total impact on the economy would be 
approximately $107.8 million (undiscounted), $157.8 million 
(undiscounted), or $187.7 million (undiscounted), respectively, in the 
first year. By year 2, the total impact to the economy if demand for 
the provisional unlawful presence waiver increases by 50 percent, 75 
percent, or 90 percent, is $33.2 million (undiscounted), $45.7 million 
(undiscounted), or $53.1 million (undiscounted), respectively. The 
impact of the rule is directly associated with the increased demand in 
legalizing immigration status by applying for legal permanent resident 
status via consular processing and participating in the provisional 
unlawful presence waiver process. The impact includes filing fees, 
time, and travel costs of complying with this final rule. The costs of 
this final rule will fall exclusively on alien immediate relatives of 
U.S. citizens that reside in the United States and must request a 
waiver for unlawful presence. This rule will not result in a major

[[Page 564]]

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'' that is 
economically significant under section 3(f)(1) of Executive Order 
12866. Accordingly, the Office of Management and Budget has reviewed 
this regulation. This effort is consistent with Executive Order 13563's 
call for agencies to ``consider how best to promote retrospective 
analysis of rules that may be outmoded, ineffective, insufficient, or 
excessively burdensome, and to modify, streamline, expand, or repeal 
them in accordance with what has been learned.''
1. Summary
    The final rule will allow certain immediate relatives of U.S. 
citizens who are physically present in the United States to apply for a 
provisional unlawful presence waiver of the 3-year or 10-year bar for 
accrual of unlawful presence prior to departing for consular processing 
of their immigrant visa. This new provisional unlawful presence waiver 
process will be available to an alien whose only ground of 
inadmissibility is, or would be, the 3-year or 10-year unlawful 
presence bar. DHS anticipates that the changes made in this final rule 
will 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 will achieve increased efficiencies in processing immediate 
relative visas for individuals subject to the unlawful presence 
inadmissibility bar.
    Since publication of the proposed provisional unlawful presence 
waiver rule, DOS published an updated fee schedule for consular 
services which did the following with respect to this rule: (1) Reduced 
the immediate relative visa fee from $330 to $230; (2) increased the 
immigrant visa security surcharge fee from $74 to $75; and (3) 
discontinued charging a separate fee for the immigrant visa surcharge 
and instead embedded the fee in the immigrant visa application 
fees.\18\ DHS has incorporated these changes and updated data into our 
final analysis.
---------------------------------------------------------------------------

    \18\ See 77 FR 18907.
---------------------------------------------------------------------------

    DHS estimates the discounted total ten-year cost of this rule will 
range from approximately $196 million to approximately $538.1 million 
at a seven percent discount rate. Compared with the current waiver 
process, this rule requires that provisional unlawful presence waiver 
applicants submit biometric information. Included in the total cost 
estimate is the cost of collecting biometrics, which we estimate will 
range from approximately $32.9 million to approximately $56.6 million 
discounted at seven percent over ten years. Also included in the total 
cost estimate are the costs faced by those who choose to file a new 
provisional unlawful presence waiver application based on the same 
approved immediate relative petition if their original Form I-601A is 
denied or withdrawn, which DHS decided to allow in response to public 
comments to the proposed rule. Aliens that file a new Form I-601A will 
still face the biometric and Form I-601A filing fees and opportunity 
costs, which we estimate will range from approximately $56.2 million to 
approximately $96.7 million discounted 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 immigration benefit forms, such as the 
Petitions for Alien Relative, Form I-130, will be filed compared to the 
pre-rule baseline. These additional forms will involve fees being paid 
by applicants to the Federal Government for form processing and 
additional opportunity costs of time being incurred by applicants to 
provide the information required by the forms. The cost estimate for 
this rule also includes the impact of this induced demand, which we 
estimate will range from approximately $106.9 million to approximately 
$384.8 million discounted at seven percent over ten years.
    A key uncertainty that impacts any cost estimate of this rule is 
the uncertainty involving the actual number of people that will avail 
themselves of this streamlined provisional unlawful presence waiver 
process. DHS is not aware of any data that will allow us to estimate 
with precision the increase in demand due to this rule. In this final 
rule DHS has made the careful determination to expand eligible 
participation to aliens in removal proceedings whose cases are 
administratively closed and have not been recalendared at the time of 
filing the Form I-601A, and who are otherwise eligible for the 
provisional unlawful presence waiver. DHS has accounted for any 
potential additions to the volume estimate as a result of these changes 
in the final analysis. Statistics compiled by the Department of Justice 
(DOJ) Executive Office of Immigration Review (EOIR) indicate there have 
been a total of 70,276 cases that were administratively closed at the 
immigration courts or the Board of Immigration Appeals (BIA) where the 
sole charge is INA 212(a)(6)(A)(i).\19\ DHS has no way of knowing 
precisely how many of the 70,276 cases are immediate relatives of U.S. 
citizens and are otherwise eligible for the provisional unlawful 
presence waiver, so we have applied similar range analysis to estimate 
the additional population surge resulting from the influx of cases 
previously administratively closed. In addition to this static influx 
that could occur with previously administratively closed cases, 
permitting aliens in removal proceedings whose cases are 
administratively closed when this rule becomes effective or 
administratively closed but not recalendared at the time of filing the 
Form I-601A could add approximately 700 to 2,500, annually, to our 
volume estimate. Lastly, allowing applicants the ability to re-file a 
Form I-601A if the initial application was denied or withdrawn will 
result in an increase to our volume estimates. A review of USCIS Form 
I-601 processing statistics indicated a denial rate of 34%. A review of 
USCIS completion statistics for the current I-601 waiver process did 
not indicate a statistical trend for withdrawals. DHS has assumed in 
this final analysis that the same denial rate of 34% will apply for the 
provisional waiver for unlawful presence application, and in an effort 
to present the maximum projected impact, has

[[Page 565]]

calculated cost impacts based on the assumption that every applicant 
with a denied or withdrawn Form I-601A will file a new Form I-601A. For 
cost estimating purposes, DHS has analyzed the cost of an increase in 
demand of 25%, 50%, 75% and 90% compared to the existing waiver 
process.
---------------------------------------------------------------------------

    \19\ Source: Department of Justice, EOIR, Office of Planning, 
Analysis, and Technology; statistics include cases completed from 
January 1, 1992-December 5, 2012. Data compiled on December 5, 2012.
---------------------------------------------------------------------------

    Table 1 provides an estimate of the annualized cost of this rule, 
in 2012 dollars, at three percent and seven percent discount rates, 
over the range of demand increases of 25%, 50%, 75%, and 90% compared 
to the existing waiver process and also qualitative benefits. The 
annualized cost of this rule will range from approximately $27.9 
million annualized to $76.6 million (7 percent discount rate) and 
approximately $27.4 million to $74.6 million (3 percent discount rate).

                                                         Table 1--Annualized Costs and Benefits
                                                    [2013-2022, dollar amounts expressed in millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      3% Discount rate                                             7% Discount rate
                              --------------------------------------------------------------------------------------------------------------------------
                                          Range analysis for demand increases by:                       Range analysis for demand increases by:
                              --------------------------------------------------------------------------------------------------------------------------
                                     25%             50%             75%            90%            25%            50%            75%            90%
--------------------------------------------------------------------------------------------------------------------------------------------------------
COSTS:
    Annualized monetized            $27.4           $45.5           $63.7          $74.6          $27.9          $46.6          $65.4          $76.6
     costs.
                              --------------------------------------------------------------------------------------------------------------------------
    Annualized quantified,                                  None
     but unmonetized costs.
                                                            None
                              --------------------------------------------------------------------------------------------------------------------------
    Qualitative                                             None
     (unquantified) costs.
                                                            None
                              --------------------------------------------------------------------------------------------------------------------------
BENEFITS:
 
    Annualized monetized                                    None
     benefits.
                                                            None
                              --------------------------------------------------------------------------------------------------------------------------
    Annualized quantified,     This rule will reduce the amount of time that U.S. citizens
     but unmonetized benefits.  are separated from their alien immediate relatives, thus
                                reducing the financial and emotional hardship for these
                                families.
                               This rule will reduce the amount of time that U.S. citizens
                                are separated from their alien immediate relatives, thus
                                reducing the financial and emotional hardship for these
                                families.
                              --------------------------------------------------------------------------------------------------------------------------
    Qualitative                Federal Government will achieve increased efficiencies by
     (unquantified) benefits.   streamlining the processing immediate relative visas for
                                individuals subject to the unlawful presence inadmissibility
                                bar.
                               Federal Government will achieve increased efficiencies by
                                streamlining the processing immediate relative visas for
                                individuals subject to the unlawful presence inadmissibility
                                bar.
--------------------------------------------------------------------------------------------------------------------------------------------------------

2. Problems Addressed by the Rule
    Currently, aliens undergoing consular processing of their immediate 
relative visas cannot apply for an unlawful presence waiver until the 
consular officer determines that they are inadmissible during their 
immigrant visa interviews. The current unlawful presence waiver process 
requires these immediate relatives to remain abroad until USCIS 
adjudicates the waiver. DOS can only issue the immigrant visa upon 
notification from USCIS that the waiver has been approved. As 
previously mentioned, the processing time under the current waiver 
process can take over one year. Because of these lengthy processing 
times, U.S. citizens may be separated from their immediate relative 
family members for prolonged periods resulting in financial, emotional, 
and humanitarian hardships. Promoting family unification is an 
important objective of the immigration laws. See Holder v. Martinez 
Gutierrez, 132 S. Ct. 2011, 2019 (2012).
    The final rule will permit certain immediate relatives to apply for 
a provisional unlawful presence waiver prior to departing from the 
United States. USCIS will adjudicate the provisional unlawful presence 
waiver and, if approved, provide notification to DOS so that it is 
available to the consular officer at the immigrant visa interview. If 
the consular officer determines there are no other impediments to 
admissibility and that the alien is otherwise eligible for issuance of 
the immigrant visa, the visa can be immediately issued. DHS anticipates 
that this process change will significantly reduce the amount of time 
U.S. citizens are separated from their immediate alien relatives. In 
addition, the changes will streamline the immigrant visa waiver 
process, thereby increasing efficiencies for both USCIS and DOS in the 
issuance of immediate relative immigrant visas.
3. The Population Affected by the Rule
    As explained above, only certain immediate relatives undergoing 
consular processing for an immigrant visa who would be inadmissible 
based on accrual of unlawful presence at the time of the immigrant visa 
interview will be eligible to apply under the proposed waiver process. 
Immediate relatives of U.S. citizens who are seeking adjustment of 
status in the United States are not affected. Immediate relatives who 
are eligible for adjustment of status in the United States generally 
include those who were admitted to the United States on nonimmigrant 
visas (student, tourist, etc.) or who were paroled, including those who 
are present in the United States after the expiration of their 
authorized periods of stay. In addition, immediate relatives that self-
petition, using USCIS Form I-360, as battered spouses and/or children 
of U.S. citizens or LPRs are able to seek adjustment of status in the 
United States. While all immediate relative aliens can choose to pursue 
consular processing if they wish, due to the financial strain and 
family separation inherently involved in consular processing, we have 
chosen to exclude aliens that are eligible to adjust status in the 
United States from this economic analysis.
    In most instances, aliens present in the United States without 
having been admitted or paroled are not eligible to adjust their status 
and must leave the United States for immigrant visa processing at a 
U.S. Embassy or consulate abroad. Because these aliens are present in 
the United States without having been admitted or paroled, many already 
have accrued more than 180 days of unlawful presence and, if so, would 
become inadmissible under the unlawful presence bars upon their 
departure from the United States to attend their immigrant visa 
interviews. While there may be limited exceptions, the affected 
population would consist almost exclusively of alien immediate 
relatives present in the United States without having been admitted or 
paroled. In addition, the final rule expands eligibility to aliens in 
removal proceedings whose cases are

[[Page 566]]

administratively closed and have not been recalendared at the time of 
filing the Form I-601A and to aliens who are in receipt of a charging 
document, Notice to Appear, that has not yet been filed with the 
immigration courts. In both of these instances the aliens must still 
meet all other eligibility requirements in order to apply for the 
provisional unlawful presence waiver. Finally, the final rule removes 
the one-time filing restriction and allows aliens to file a new 
provisional unlawful presence waiver application on the same approved 
immediate relative petition if the initial Form I-601A is denied or 
withdrawn prior to final adjudication.
    DHS does not maintain data on the number of immediate relatives 
present in the United States who would qualify under the unlawful 
presence waiver process. The DHS Office of Immigration Statistics (DHS 
OIS) estimates that the population of unauthorized immigrants (those 
present without admission or parole) residing in the United States is 
approximately 11.6 million as of January 2010.\20\ While all persons 
affected by the rule are within the estimated population of 11.6 
million, it is estimated that only a portion are immediate relatives of 
U.S. citizens who meet the criteria required for the new process.
---------------------------------------------------------------------------

    \20\ Department of Homeland Security, Office of Immigration 
Statistics, Estimates of the Unauthorized Immigrant Population 
Residing in the United States: January 2011, available at http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2011.pdf. Note: The OIS estimate of the unauthorized population 
residing in the United States in January 2010 was revised from a 
previous OIS estimate of 10.8 million. The revised 2010 estimate of 
11.6 million is derived from the 2010 American Community Survey 
which uses population estimates based on the 2010 Census, whereas 
the previously released 2010 estimate was derived from the 2000 
Census. The OIS estimate of the unauthorized population residing in 
the United States in January 2011 was 11.5 million, a decrease of 
0.87% when compared to the 2010 estimate of 11.6 million.
---------------------------------------------------------------------------

    Other estimates are equally inconclusive on the number of immediate 
relatives of U.S. citizens who are subject to the unlawful presence 
bars. For example, the Pew Hispanic Trust estimates that there are 9.0 
million persons \21\ living in mixed status families in the United 
States that include at least one unauthorized adult alien and at least 
one U.S.-born child. This, and associated information from the Pew 
Hispanic Trust, does not provide a reliable means for the calculation 
of how many of the individuals in these families are U.S. citizens 
rather than alien immediate relatives, or the proportion of persons 
with unlawful presence who are the relatives of LPRs rather than U.S. 
citizens.\22\ Nor do these data indicate how many persons within these 
families are under the age of 18 \23\ or have alternative methods of 
normalizing their immigration status without having to leave the United 
States and, consequently, are unlikely to be affected by the 
provisional unlawful presence waiver process.
---------------------------------------------------------------------------

    \21\ Pew Hispanic Trust, Unauthorized Immigrants: Length of 
Residency, Patterns of Parenthood 6 (Dec. 2011), available at http://www.pewhispanic.org/files/2011/12/Unauthorized-Characteristics.pdf.
    \22\ The provisional unlawful presence waiver process will only 
be available to alien immediate relatives of U.S. citizens, not to 
alien relatives of lawful permanent residents.
    \23\ In the Pew Hispanic Trust report, Unauthorized Immigrants: 
Length of Residency, Patterns of Parenthood, ``families'' are 
defined as adults age 18 and older who live with their minor 
children (i.e., younger than 18) and unmarried, dependent children 
younger than 25.
---------------------------------------------------------------------------

    Data from different sources cannot be reliably combined because of 
differences in their total estimates for different categories, the 
estimation and collection methodologies used, or other reasons of 
incompatibility. Absent information on the number of aliens who are in 
the United States without having been inspected and admitted or paroled 
and who are immediate relatives of U.S. citizens, DHS cannot reliably 
estimate the affected population of the rule.
4. Demand
    DHS expects that the final rule will increase demand for both 
immigrant visa petitions for alien relatives and applications for 
waivers of inadmissibility. Existing demand is constrained by the 
current process that requires individuals to leave the United States 
and be separated for unpredictable and sometimes lengthy amounts of 
time from their immediate relatives in the United States in order to 
obtain an immigrant visa to become an LPR. Immediate relatives eligible 
for LPR status if issued a waiver of inadmissibility may be reluctant 
to avail themselves of the current process because of the length of 
time that they may be required to wait outside the United States before 
they can be admitted as LPRs.
    The provisional unlawful presence waiver process will allow an 
immediate relative who meets the eligibility criteria to apply for a 
provisional unlawful presence waiver and receive a decision on that 
application before departing from the United States for a consular 
interview. This streamlined process may reduce the reluctance of aliens 
who may wish to obtain an immigrant visa to become an LPR but are 
deterred by the lengthy separation from family members imposed by the 
current process and uncertainty related to the ultimate success of 
obtaining an approved inadmissibility waiver.
    The costs associated with normalizing a qualifying immediate 
relative's status also may be a constraint to demand. These current 
costs include: \24\
---------------------------------------------------------------------------

    \24\ Fees quoted are as of June 2012. Source for DOS fees: 
http://travel.state.gov/visa/temp/types/types_1263.html#perm. 
Source for USCIS fees: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=b1ae408b1c4b3210VgnVCM100000b92ca60aRCRD&vgnextchannel=b1ae408b1c4b3210VgnVCM100000b92ca60aRCRD.
---------------------------------------------------------------------------

    1. Petition for Alien Relative, Form I-130, to establish a 
qualifying relationship to a U.S. citizen; cost to the petitioner of 
fee paid = $420.00.
    2. Application for Waiver of Grounds of Inadmissibility, Form I-
601, to obtain a waiver of inadmissibility for unlawful presence; cost 
to applicant of fee paid = $585.00.
    3. Time and expense of preparing the evidence to support the 
``extreme hardship'' requirements for a waiver of inadmissibility. The 
evidentiary requirements could include sworn statements from family 
members, friends and acquaintances, medical records, psychiatric/
psychological records, school records, evidence of illness of family 
members, financial information and tax returns, letters from teachers, 
support letters from churches and community organizations, evidence of 
health and emotional problems that may result from the separation, and 
other such documentation; costs of evidentiary requirements are 
variable and based on the specific facts of individual cases.
    4. Travel from the United States to the immediate relative's home 
country or country where the visa is being processed, and any 
additional living expenses required to support two households while 
awaiting an immigrant visa; cost of travel to consular interview are 
variable and dependent upon the specific circumstances of individual 
cases.
    5. Immigrant visa processing fees paid to: (a) The Department of 
State ($230), processed on the basis of a USCIS-approved I-130 
petition; and b) USCIS ($165). Total cost to the applicant of fees paid 
= $395.00.
    6. An Affidavit of Support Under Section 213A of the Act, Form I-
864; cost to petitioner of fee paid = $88.00.
    7. Other forms, affidavits, etc. as required for individual 
applications; cost are variable.
    The costs listed above are not new to this rule; they are the 
current costs faced by aliens who are inadmissible for

[[Page 567]]

unlawful presence and must undergo consular processing for immediate 
relative immigrant visas.
    Under the provisional unlawful presence waiver process, aliens must 
submit biometrics after filing the provisional unlawful presence waiver 
application, along with the corresponding fee (currently $85.00). 
Submission of biometrics to DHS is separate from the DOS immigrant visa 
security surcharge that recovers costs to DOS associated with providing 
enhanced border security. Since publication of the proposed provisional 
unlawful presence waiver rule, DOS published an updated fee schedule 
for consular services which did the following as respects this rule: 
(1) Reduced the immediate relative visa fee from $330 to $230; (2) 
increased the immigrant visa security surcharge fee from $74 to $75; 
and (3) discontinued charging a separate fee for the immigrant visa 
surcharge and instead embedded the fee in the immigrant visa 
application fees.\25\ The requirement to submit biometrics to DHS in 
order to apply for a provisional unlawful presence waiver, with the 
associated fee, time, and travel costs, would be a small portion of the 
total costs of the immigrant visa application process.
---------------------------------------------------------------------------

    \25\ See 77 FR 18907. DHS has revised the cost estimates in this 
final rule to reflect the updated DOS fee schedule.
---------------------------------------------------------------------------

    As there are no annual limitations on the number of immediate 
relative visas that can be issued, the increase in the annual demand 
for waivers would be determined by the size of the affected population 
and the increased propensity to apply. As previously mentioned, a 
potential increase in demand might be limited, as is current demand, by 
the costs previously noted.
    With the absence of an estimate of the affected population, we have 
calculated an estimate for the increase in demand based on historical 
records and assumptions on the range of demand. Forecasts of demand 
based on historical volumes of immediate relatives who are seeking 
waivers for unlawful presence are limited, at best, due to the lack of 
data. Historical estimates show only those aliens who have taken the 
steps to obtain an immigrant visa to become LPRs. The data are silent, 
however, on that population of aliens who have not initiated action to 
become LPRs due to current uncertainties and risks. Therefore, we 
recognize that the estimates provided may understate what may actually 
occur when this rule becomes effective.
    The current level of demand, shown in Table 2, is a result of the 
existing constraints described previously: the possibility of lengthy 
separation of immediate relatives and their U.S. citizen relatives; 
uncertainty of the ultimate success of obtaining an approved 
inadmissibility waiver; and the financial constraints (costs). Because 
of the variability in timing between when immigrant visa petitions and 
waiver applications are submitted and adjudicated and the time when an 
immigrant visa is issued, comparisons between the totals within a 
single year are not meaningful.

                      Table 2--Historical Immigration Data--Fiscal Years 2001 Through 2010
----------------------------------------------------------------------------------------------------------------
                                        Petitions for
                                       immediate  alien      Immediate        Ineligibility      Ineligibility
             Fiscal year              relative,  form I-  relative  visas      finding \27\      overcome \28\
                                           130 \26\            issued
----------------------------------------------------------------------------------------------------------------
2001................................       \29\ 592,027            172,087              5,384              6,157
2002................................            321,577            178,142              2,555              3,534
2003................................            357,081            154,760              3,301              1,764
2004................................            330,514            151,724              4,836              2,031
2005................................            290,777            180,432              7,140              2,148
2006................................            309,268            224,187             13,710              3,264
2007................................            344,950            219,323             15,312              7,091
2008................................            412,297            238,848             31,069             16,922
2009................................            455,864            227,517             24,886             12,584
2010................................            471,791            215,947             22,093             18,826
10 year average.....................            388,615            196,297             13,029              7,432
Ineligibility Findings overcome (10                 n/a                n/a                n/a              57.0%
 year average)......................
----------------------------------------------------------------------------------------------------------------
Note: Sums may not total due to rounding.
Sources: Petitions for Alien Relative, Form I-130, query of USCIS Performance Analysis System by USCIS' Office
  of Performance and Quality, Data Analysis and Reporting Branch. Immediate relative visas issued are from
  individual annual Report(s) of the Visa Office, Department of State Visa Statistics, accessible at http://travel.state.gov/visa/statistics/statistics_1476.html. Ineligibility data are also from the individual annual
  report(s) of the Visa Office, Department of State Visa Statistics and appears in Table XX of each annual
  report.

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

    \26\ Numbers in this column differ from the proposed rule (77 FR 
19915) as the proposed rule inadvertently used data for preference 
aliens. We've corrected the table to account for immediate relative 
petitions filed using Form I-130. We note the ten year average here 
of 388,615 differs by less than two percent from the ten year 
average of 395,919 used in the proposed rule. We recognize that 
immediate relative petitions also can be filed by certain aliens 
using the Petition for Amerasian, Widow(er), or Special Immigrant, 
Form I-360. Immediate relative petitions filed for the Amerasian 
classification are filed for aliens that are already outside the 
United States so we do not believe these aliens would benefit from 
the provisional unlawful presence waiver requirements. Additionally, 
self-petitioning battered spouses and children covered under the 
Violence Against Women Act (VAWA) are able to seek adjustment of 
status in the United States regardless of whether they have been 
inspected and admitted or paroled into the United States, see INA 
section 245(a). Moreover, self-petitioning battered spouses and 
children typically are exempt from accruing unlawful presence for 
purposes of INA section 212(a)(9)(B)(i). See INA section 
212(a)(9)(B)(iii)(IV). While beneficiaries of immediate relative 
petitions for a widow(er) of a U.S. citizen may avail themselves of 
the provisional unlawful presence waiver, in the period 2001-2010, 
the ten-year average for these petitions was 594. For purposes of 
clarity in the assumptions and the future calculations of impact, we 
have decided not to include this population in the immediate 
relative petition volumes given the relatively negligible filing 
volumes. Note: The current filing fee for Form I-360 is $405 for a 
widow(er) of a U.S. citizen.
    \27\ Both the Ineligibility Finding and Ineligibility Overcome 
columns refer only to ineligibility in which the grounds of 
inadmissibility were the 3-year or the 10-year unlawful presence 
bar. This figure is not limited to immigrant petitioners who are 
immediate relatives of U.S. citizens; it also includes relatives of 
LPRs. Ineligibility findings were low between 2001 and 2005/2006 
because many individuals were not seeking immigrant visas through 
the consular process overseas; instead, they adjusted to lawful 
permanent resident status stateside under INA section 245(i).
    \28\ Id. Ineligibility Findings/Ineligibility Overcome includes 
alien relatives who are not affected by the rule. Comparisons 
between the totals of Ineligibility Findings/Ineligibility Overcome 
within a single year are not meaningful because of the variability 
in timing between when an ineligibility finding is made and when 
(and if) it is overcome.
    \29\ The number of Petitions for Alien Relative, Form I-130, 
filed in 2001 is high because many filed petitions in anticipation 
of the INA section 245(i) sunset date, which occurred on April 30, 
2001.

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

[[Page 568]]

    As is evident, each of the data sets in Table 2 demonstrates a wide 
variability. The estimate of future demand under the new process would 
be determined by the number of ineligibility findings. The data for 
Ineligibility Findings and Ineligibility Overcome in Table 2 refer only 
to ineligibility where the grounds of inadmissibility were the 3-year 
or the 10-year unlawful presence bar. This data, however, also includes 
alien relatives of LPRs (or preference aliens) who are not affected by 
this rule. DHS has provided the data in Table 2 to provide historical 
context noting that the last three years of ineligibility findings are 
well above the 10-year historical average. For this reason, DHS used 
the estimate for the future filings for waivers of inadmissibility made 
by the USCIS Office of Performance and Quality (OPQ), Data Analysis and 
Reporting Branch, as the basis for the estimated future filings. The 
current OPQ estimate for future waivers of inadmissibility is 
approximately 24,000 per year. Currently, 80 percent (or 19,200) of all 
waivers of inadmissibility are filed on the basis of inadmissibility 
due to the unlawful presence bars.\30\ This estimate is further 
confirmed when examining the most recent 5-year period between FY 2006-
FY 2010 where the average unlawful presence ineligibility finding is 
approximately 21,400. In light of the recent upward trend of immediate 
relative visas issued and ineligibility findings presented in Table 2, 
OPQ's estimate of 19,200 applications for waivers of unlawful presence 
represents as reasonable of an approximation as possible for future 
demand based on available data of the current waiver process.
---------------------------------------------------------------------------

    \30\ The 80 percent estimate was calculated by USCIS based on 
data from all Forms I-601 completed by USCIS abroad from August 2010 
to October 2011 and comparing those that listed only unlawful 
presence as an inadmissibility ground.
---------------------------------------------------------------------------

    DHS anticipates that the changes to create a new provisional 
unlawful presence waiver process will encourage immediate relatives who 
are unlawfully present to initiate actions to obtain an immigrant visa 
to become LPRs when they otherwise would be reluctant to under the 
current process. As confidence in the new process increases, we would 
expect demand to trend upward. DHS estimates were formulated based on 
general assumptions of the level of constraints on demand removed by 
the rule. DHS does not know of any available data that would enable a 
more precise calculation of the increases in filing propensities or an 
increase in the number of inadmissibility findings or the percentage of 
inadmissibility findings where the inadmissibility bar is overcome.
    Table 3 indicates the estimate of demand under the current process. 
This is the baseline demand expected in the absence of the rule.

 Table 3--Baseline Estimates of Growth in Petitions for Alien Relatives
 and Ineligibility Findings Based on Unlawful Presence Under the Current
                                 Process
------------------------------------------------------------------------
                                 Petitions for alien
         Fiscal year             immediate relative,      Ineligibility
                                   Form I-130 \31\        finding \32\
------------------------------------------------------------------------
Year 1.......................                 402,217            19,709
Year 2.......................                 416,294            20,398
Year 3.......................                 430,864            21,112
Year 4.......................                 445,945            21,851
Year 5.......................                 461,553            22,616
Year 6.......................                 477,707            23,408
Year 7.......................                 494,427            24,227
Year 8.......................                 511,732            25,075
Year 9.......................                 529,642            25,952
Year 10......................                 548,180            26,861
                              ------------------------------------------
    10 Year Totals...........               4,718,560           231,209
------------------------------------------------------------------------
Note: Sums may not total due to rounding.

    Based on the data available on requests for waivers under the 
current process, Table 3 forecasts the number of findings of 
inadmissibility due to accrual of unlawful presence. The results 
presented in Table 3 are meant to show forecasts for future demand for 
waivers due to unlawful presence bars under the current process. DHS 
assumes that in every case where a consular officer determines 
inadmissibility based on unlawful presence, the alien would apply for a 
waiver. Thus, Table 3 represents the baseline totals we expect in the 
absence of the provisional unlawful presence waiver process.
---------------------------------------------------------------------------

    \31\ The first year estimate for the baseline demand of I-130 
petitions is the 10 year average of 388,615 multiplied by the 3.5 
percent compound annual growth rate for the undocumented population 
for the previous 10 years reported in the DHS Office of Immigration 
Statistics, Estimates of the Unauthorized Immigrant Population 
Residing in the United States: January 2011. Subsequent years are 
increased at the same 3.5 percent growth rate. As a comparison, the 
U.S. population as a whole rose at a compound annual growth rate of 
0.930 percent over the same period.
    \32\ Ineligibility Findings are calculated at the USCIS estimate 
of 0.049 per alien immediate relative petition.
---------------------------------------------------------------------------

    In these calculations, the petitions for an alien relative made by 
U.S. citizens are expected to increase annually by the 3.5 percent 
compound annual growth rate for the undocumented population for the 
previous 10 years based on reports by the DHS OIS.\33\ This is an 
imperfect calculation, as the undocumented population has declined 
since its peak in 2007,\34\ but because of the data association 
problems noted previously, DHS used the 10-year (long term) compound 
average growth rate.
---------------------------------------------------------------------------

    \33\ DHS Office of Immigration Statistics, Estimates of the 
Unauthorized Immigrant Population Residing in the United States: 
January 2011. The 3.5 percent (rounded) compound annual growth rate 
is calculated from the estimated populations of unauthorized 
immigrants living in the United States in 2000 (8.5 million) and in 
2010 (11.6 million).
    \34\ Id.
---------------------------------------------------------------------------

    The ineligibility findings in Table 3 are calculated using the 
estimate of 19,200 average annual waivers filed on the basis of 
unlawful presence, which

[[Page 569]]

equates to 0.049 ineligibility findings for every alien relative 
petition based on the 10-year average. Again, these calculations are 
imperfect since ineligibility findings are based on immigrant visas 
granted for the alien relative population (both immediate relative and 
family preference).
    DHS does not have data available that would permit an estimation of 
the escalation of change in this variable. Thus, this estimate of 
future petitions for alien relatives and ineligibility findings is 
based on a range of assumptions concerning the current constraint on 
demand. As a result, Table 4 provides a scenario analysis utilizing 
estimates of various amounts of constraint on demand. For example, an 
assumption that demand is currently constrained by 25 percent would 
mean that there would be a 25 percent increase from the baseline in the 
number of Form I-601A applications for each year under the new 
provisional unlawful presence waiver process. The findings of this 
range analysis are presented in Table 4.

  Table 4--Estimates of Inadmissibility Findings Requiring an Unlawful Presence Waiver, Form I-601A Associated
                                      With the Increased Demand of the Rule
----------------------------------------------------------------------------------------------------------------
                                                                 Expected demand for Form I-601A with current
                                                                             constrained demand of
                            Year                             ---------------------------------------------------
                                                               25 percent   50 percent   75 percent   90 percent
----------------------------------------------------------------------------------------------------------------
Year 1......................................................       24,636       29,563       34,490       37,446
Year 2......................................................       25,498       30,598       35,697       38,757
Year 3......................................................       26,390       31,669       36,947       40,113
Year 4......................................................       27,314       32,777       38,240       41,517
Year 5......................................................       28,270       33,924       39,578       42,971
Year 6......................................................       29,260       35,111       40,963       44,475
Year 7......................................................       30,284       36,340       42,397       46,031
Year 8......................................................       31,344       37,612       43,881       47,642
Year 9......................................................       32,441       38,929       45,417       49,310
Year 10.....................................................       33,576       40,291       47,006       51,036
                                                             ---------------------------------------------------
    10-Year Totals..........................................      289,012      346,814      404,617      439,298
----------------------------------------------------------------------------------------------------------------
Note: Numbers may not total due to rounding.

    In response to comments on the proposed rule, DHS has made the 
careful determination to expand participation in the provisional 
unlawful presence waiver process to immediate relative aliens in 
removal proceedings whose cases have been or will be administratively 
closed and have not been recalendared at the time of filing the Form I-
601A. Aliens who are in removal proceedings whose cases have been or 
will be administratively closed are likely comprised primarily of 
aliens who would need to seek immigration relief via DOS consular 
processing. Thus, we believe that such individuals are also already 
accounted for in the volume estimates provided above which were based 
on historical filings of Form I-601 to waive the unlawful presence 
ground. However, to not understate the volume, we examined historical 
case resolution statistics of immigration proceedings provided by EOIR. 
Historical statistics are silent on the volume of cases that have been 
administratively closed and later recalendared.
    Based on statistics compiled by EOIR, 66,365 cases at the 
immigration court level and 3,911 cases at the BIA (for a total of 
70,276 cases) were administratively closed since 1992 where the sole 
charge is INA 212(a)(6)(A)(i).\35\ DHS has no way of knowing precisely 
how many of the 70,276 previously administratively closed cases would 
be immediate relatives of U.S. citizens and otherwise eligible for the 
provisional unlawful presence waiver. In an effort to be balanced in 
our estimate, it would be incorrect to assume that every removal 
proceeding case that was administratively closed in the past will also 
meet the requirements under the provisional unlawful presence waiver 
process. Therefore, we will provide a range analysis to estimate the 
proportion that would be eligible to participate over a similar range 
of assumptions as used in calculating induced demand. In this instance, 
however, we will assume that removal proceeding cases that are eligible 
to participate would range from 25-90 percent, where 25 percent means 
that 25 percent of the administratively closed cases also meet the 
remaining provisional unlawful presence waiver requirements. Since 
cases that were administratively closed in the past represent a static 
statistic, we only reflect this potential influx in one year of our 
volume projections. Thus, the addition made to the volume estimate in 
Year 1 to account for estimates of additional Form I-601A filings from 
aliens whose removal proceedings have been be administratively closed 
are: 17,569 (25 percent of 70,276 cases); 35,138 (50 percent); 52,707 
(75 percent); and 63,249 (90 percent).
---------------------------------------------------------------------------

    \35\ Source: EOIR, Office of Planning, Analysis, and Technology; 
statistics include cases completed from January 1, 1992-December 5, 
2012. Data compiled on December 5, 2012.
---------------------------------------------------------------------------

    Similarly, DHS estimated increases to the yearly volume projection 
in order to account for those aliens with cases that will be 
administratively closed and therefore eligible to apply for the 
provisional unlawful presence waiver, provided they meet the additional 
requirements. DHS examined EOIR historical case resolution statistics 
over the five-year period FY 2007-FY 2011 to determine an appropriate 
average number of cases that are administratively closed from which to 
base this yearly estimate on. Those findings are presented in Table 5.
---------------------------------------------------------------------------

    \36\ Source: Executive Office for Immigration Review Office of 
Planning, Analysis, and Technology FY 2011 Statistical Year Book 
February 2012, available at: http://www.justice.gov/eoir/statspub/fy11syb.pdf.

   Table 5--Number of Administratively Closed Cases--Fiscal Years 2007
                             through 2011 36
------------------------------------------------------------------------
                         Fiscal year                             Number
------------------------------------------------------------------------
2007.........................................................      7,966
2008.........................................................      8,409
2009.........................................................      7,885

[[Page 570]]

 
2010.........................................................      8,939
2011.........................................................      6,337
5-yr Average.................................................      7,907
------------------------------------------------------------------------

    In examining the data over the five-year span (presented in Table 
5), there is no obvious upward or downward trend, so for the purpose of 
simplifying, DHS assumes no growth in this statistic. Over the 20-year 
period of analysis of EOIR's statistics of administratively closed 
cases, DHS determined that 35% of all administratively closed cases 
were those where the sole charge is unlawful presence.\37\ Assuming 
this proportion will continue to hold, we estimate that EOIR would 
administratively close 2,768 cases per year where the sole charge is 
unlawful presence.\38\ Again, DHS has no way of knowing precisely how 
many of the 2,768 estimated unlawful presence administratively closed 
cases will be aliens who are immediate relatives of U.S. citizens and 
otherwise eligible for the provisional unlawful presence waiver 
process. Applying the same range analysis based on participation rates, 
DHS has made the following yearly additions to the volume estimate of 
additional Form I-601A filings to account for those aliens whose 
removal proceedings have been or will be administratively closed: 692 
(25 percent of 5-year average 2,768); 1,384 (50 percent); 2,076 (75 
percent); and 2,492 (90 percent). The final estimate for future filings 
of the provisional unlawful presence waiver considers both induced 
demand relative to the current process and the participation rate of 
aliens in removal proceedings whose cases have been or will be 
administratively closed. This final estimate is presented in Table 6.
---------------------------------------------------------------------------

    \37\ Statistic calculated by DHS based on EOIR statistics on 
administratively closed cases from January 1, 1992-December 5, 2012. 
According to the EOIR report, there were a total of 189,566 aliens 
whose cases have been administratively closed at immigration court. 
Of those, a total of 66,365 cases were administratively closed at 
the immigration court where the sole charge is INA 212(a)(06)(A)(i). 
[Calculation: 66,365/189,566 = 0.3501 or 35% (rounded)] Similarly, 
there were a total of 11,279 aliens whose cases have been 
administratively closed at the BIA. Of those, a total of 3,911 cases 
were administratively closed at the BIA where the sole charge is INA 
212(a)(06)(A)(i). [Calculation: 3,911/11,279 = 0.3468 or 35% 
(rounded)].
    \38\ Calculation: 35% of the 5-year average of administratively 
closed cases (7,907) = 2,768 (rounded).

     Table 6--Final Estimates of Inadmissibility Findings Requiring an Unlawful Presence Waiver, Form I-601A
 [Table 4 plus an adjustment for aliens in removal proceedings whose cases have been or will be administratively
                                     closed and have not been recalendared]
----------------------------------------------------------------------------------------------------------------
                                                                 Expected demand for Form I-601A with current
                                                                  constrained demand or participation rate of
                            Year                             ---------------------------------------------------
                                                               25 percent   50 percent   75 percent   90 percent
----------------------------------------------------------------------------------------------------------------
Year 1......................................................       42,897       66,085       89,274      103,188
Year 2......................................................       26,191       31,982       37,774       41,249
Year 3......................................................       27,083       33,053       39,023       42,606
Year 4......................................................       28,007       34,161       40,316       44,010
Year 5......................................................       28,963       35,309       41,655       45,463
Year 6......................................................       29,952       36,496       43,040       46,967
Year 7......................................................       30,976       37,725       44,474       48,524
Year 8......................................................       32,036       38,997       45,957       50,135
Year 9......................................................       33,133       40,313       47,493       51,802
Year 10.....................................................       34,269       41,676       49,083       53,528
                                                             ---------------------------------------------------
    10-Year Totals..........................................      313,501      395,793      478,084      527,467
----------------------------------------------------------------------------------------------------------------
Note: Numbers may not total due to rounding.

    Table 7 is the expected marginal increase in inadmissibility waiver 
initial applications due to the final rule implementing the provisional 
unlawful presence waiver process. These estimates are obtained by 
subtracting the baseline estimates in Table 3 (without the rule) from 
the estimates when the rule becomes effective in Table 6.
---------------------------------------------------------------------------

    \39\ The increased ineligibility findings in Table 6 are the 
difference in ineligibility findings from the different assumptions 
of the level of constrained demand or participation rate (as 
respects those in removal proceedings whose cases have been 
administratively closed) in Table 5 and the baseline ineligibility 
findings shown in Table 2.

 Table 7--Final Estimates of the Additional Ineligibility Findings Requiring an Inadmissibility Waiver Under the
                                            Rule (Induced Demand) 39
                                             [Table 6 minus Table 3]
----------------------------------------------------------------------------------------------------------------
                                                                Additional ineligibility findings requiring an
                                                                inadmissibility waiver with current constrained
                            Year                                       demand  or participation rate of
                                                             ---------------------------------------------------
                                                               25 percent   50 percent   75 percent   90 percent
----------------------------------------------------------------------------------------------------------------
Year 1......................................................       23,189       46,377       69,565       83,479
Year 2......................................................        5,792       11,584       17,375       20,851
Year 3......................................................        5,971       11,941       17,911       21,494
Year 4......................................................        6,155       12,310       18,465       22,159
Year 5......................................................        6,347       12,693       19,039       22,847
Year 6......................................................        6,544       13,088       19,632       23,559

[[Page 571]]

 
Year 7......................................................        6,749       13,498       20,247       24,297
Year 8......................................................        6,961       13,922       20,883       25,060
Year 9......................................................        7,181       14,361       21,541       25,850
Year 10.....................................................        7,408       14,815       22,222       26,667
                                                             ---------------------------------------------------
    10 Year Totals..........................................       82,292      164,583      246,875      296,258
----------------------------------------------------------------------------------------------------------------
Note: Numbers may not total due to rounding.

    Lastly, in response to public comments on the proposed rule, DHS 
has made the decision to not reject provisional unlawful presence 
waiver applications from aliens who previously submitted a Form I-601A 
application that either was denied or withdrawn. This means that an 
alien can file a new provisional unlawful presence waiver application 
on the basis of the original approved immediate relative petition. DHS 
has examined USCIS I-601 processing data over the 5-year period, FY 
2007-2011. The average denial rate over that 5-year period is 34%.\40\ 
Internal USCIS review of I-601 historical application data indicated 
that withdrawals of Form I-601s were not a significant occurrence. At 
this time, DHS is unable to project a trend associated with the 
frequency of cases that are denied or withdrawn and later the alien 
chooses to re-file a waiver application. In an effort to present the 
maximum volume projection of I-601A re-filers, we have made the 
following assumptions: (1) The five-year denial rate of 34% calculated 
for Form I-601s will hold for Form I-601As; and (2) for every I-601A 
that is denied, we assume that the alien will file an additional I-
601A. We believe that showing the maximum volume projections under 
those assumptions will sufficiently account for those cases that are 
withdrawn. The volume projection of I-601A re-filers is shown in Table 
8, and is based on a 34% denial rate for all initial filings presented 
in Table 6. We have chosen to present the re-filing volume projections 
separately because re-filers would be able to base the re-filed 
application on the initial immediate relative petition.
---------------------------------------------------------------------------

    \40\ Source: USCIS Office of Performance and Quality, Data 
Analysis and Reporting Branch. Query of CIS Consolidated Operational 
Repository for I-601 receipts, approval and denials for FY 2007--
2011; report created December 8, 2011.

Table 8--Final Estimates of Denied or Withdrawn Provisional Unlawful Presence Waiver Applications Where an Alien
                                         Would Re-file a New Form I-601A
              [Assumes that 34% of all initial applications in Table 6 will be denied or withdrawn]
----------------------------------------------------------------------------------------------------------------
                                                                 Estimate of denied or withdrawn applications
                                                              requiring a re-filed Form I-601A assuming the same
                            Year                                       demand and participation rates of
                                                             ---------------------------------------------------
                                                               25 percent   50 percent   75 percent   90 percent
----------------------------------------------------------------------------------------------------------------
Year 1......................................................       14,585       22,469       30,354       35,084
Year 2......................................................        8,905       10,874       12,844       14,025
Year 3......................................................        9,209       11,239       13,268       14,487
Year 4......................................................        9,523       11,615       13,708       14,964
Year 5......................................................        9,848       12,006       14,163       15,458
Year 6......................................................       10,184       12,409       14,634       15,969
Year 7......................................................       10,532       12,827       15,122       16,499
Year 8......................................................       10,893       13,259       15,626       17,046
Year 9......................................................       11,266       13,707       16,148       17,613
Year 10.....................................................       11,652       14,170       16,689       18,200
                                                             ---------------------------------------------------
    10-Year Totals..........................................      106,593      134,571      162,551      179,341
----------------------------------------------------------------------------------------------------------------
Note: Numbers may not total due to rounding.

5. Costs
    The final rule will require provisional unlawful presence waiver 
applicants to submit biometrics to USCIS. This is the only new cost 
applicants will incur under the provisional unlawful presence waiver 
process in comparison to the current waiver process. The other costs of 
the rule emanate from the increase in the demand created by the 
provisional unlawful presence waiver process. These other costs include 
the fees and preparation costs for forms prepared by individuals who we 
believe take the initiative to normalize their immigration status where 
they otherwise would not due to existing constraints previously 
described under the current I-601 waiver process.
    For the biometric collection, the immediate relative alien will 
incur the following costs associated with submitting biometrics with an 
application for the provisional unlawful

[[Page 572]]

presence waiver: the required USCIS fee and the opportunity and mileage 
costs of traveling to a USCIS ASC to have the biometric recorded.
    The current USCIS fee for collecting and processing biometrics is 
$85.00. In addition, DHS estimates the opportunity costs for travel to 
an ASC in order to have the biometric recorded based on the cost of 
travel (time and mileage) plus the average wait time to have the 
biometric collected. While travel times and distances will vary, DHS 
estimates that the average round-trip distance to an ASC will be 50 
miles, and that the average time for that trip will be 2.5 hours. DHS 
estimates that an alien will wait an average of one hour for service 
and to have biometrics collected.
    DHS recognizes that the individuals impacted by the rule are 
unlawfully present and are generally not eligible to work; however, 
consistent with other DHS rulemakings, we use wage rates as a mechanism 
to estimate the opportunity or time valuation costs associated with the 
required biometric collection. The Federal minimum wage is currently 
$7.25 per hour.\41\ In order to anticipate the full opportunity cost of 
providing biometrics, DHS multiplied the minimum hourly wage rate by 
1.44 to account for the full cost of employee benefits such as paid 
leave, insurance, and retirement, which equals $10.44 per hour.\42\ In 
addition, the cost of travel includes a mileage charge based on the 
estimated 50 mile round trip at the General Services Administration 
rate of $0.555 per mile, which equals $27.75 for each applicant.\43\
---------------------------------------------------------------------------

    \41\ U.S. Dep't of Labor, Wage and Hour Division. The minimum 
wage in effect as of July 24, 2009, available at: http://www.dol.gov/dol/topic/wages/minimumwage.htm.
    \42\ U.S. Dep't of Labor, Bureau of Labor Statistics, Economic 
News Release, Table 1. Employer costs per hour worked for employee 
compensation and costs as a percent of total compensation: Civilian 
workers, by major occupational and industry group, Dec. 2011, 
available at http://www.bls.gov/news.release/archives/ecec_03142012.htm.
    \43\ See 77 FR 22786.
---------------------------------------------------------------------------

    Using an opportunity cost of time of $10.44 per hour and the 3.5 
hour estimated time for travel and service and the mileage charge of 
$27.75, DHS estimates the cost per provisional unlawful presence waiver 
applicant to be $64.29 for travel to and service at the ASC.\44\ When 
the $85.00 biometric fee is added, the total estimated additional cost 
per provisional unlawful presence waiver over the current waiver 
process is $149.29. All other fees charged by USCIS and DOS to apply 
for immediate relative visas remain the same under the current and 
provisional unlawful presence waiver processes.\45\
---------------------------------------------------------------------------

    \44\ ($10.44 per hour x 3.5 hours) + ($0.555 per mile x 50 
miles) = $64.29.
    \45\ The Application for a Provisional Waiver of 
Inadmissibility, Form I-601A, will carry the same USCIS fee as Form 
I-601.
---------------------------------------------------------------------------

    The incremental costs of the biometric requirement of the rule are 
computed as the $149.29 cost per provisional unlawful presence waiver 
multiplied by the total number of applicants for provisional unlawful 
presence waivers applying after the final rule is effective. This 
population is represented in Table 6. The incremental costs of the 
additional biometric requirement are shown in Table 9.

  Table 9--Costs of Biometric Requirement to Immediate Relatives Filing a Provisional Unlawful Presence Waiver
                                                   Application
                                         [Table 6 multiplied by $149.29]
----------------------------------------------------------------------------------------------------------------
                                              Additional inadmissibility waiver application fees with current
                                                        constrained demand or participation rate of
                  Year                   -----------------------------------------------------------------------
                                             25 percent        50 percent        75 percent        90 percent
----------------------------------------------------------------------------------------------------------------
Year 1..................................        $6,404,093        $9,865,830       $13,327,715       $15,404,937
Year 2..................................         3,910,054         4,774,593         5,639,280         6,158,063
Year 3..................................         4,043,221         4,934,482         5,825,744         6,360,650
Year 4..................................         4,181,165         5,099,896         6,018,776         6,570,253
Year 5..................................         4,323,886         5,271,281         6,218,675         6,787,171
Year 6..................................         4,471,534         5,448,488         6,425,442         7,011,703
Year 7..................................         4,624,407         5,631,965         6,639,523         7,244,148
Year 8..................................         4,782,654         5,821,862         6,860,921         7,484,654
Year 9..................................         4,946,426         6,018,328         7,090,230         7,733,521
Year 10.................................         5,116,019         6,221,810         7,327,601         7,991,195
                                         -----------------------------------------------------------------------
    10-Year Totals Undiscounted.........        46,803,460        59,088,534        71,373,907        78,746,295
                                         -----------------------------------------------------------------------
    10-Year Totals Discounted at 7.0            32,907,683        42,030,423        51,153,460        56,628,050
     percent............................
                                         -----------------------------------------------------------------------
    10-Year Totals Discounted at 3.0            39,926,220        50,653,297        61,380,675        67,818,069
     percent............................
----------------------------------------------------------------------------------------------------------------
Note: Numbers may not total due to rounding.

    In addition to the costs of the biometric requirement, DHS expects 
that the rule will induce an increase in demand for immediate relative 
visas, which will generate new fees paid to the USCIS and DOS. As the 
only new requirement imposed by this rule on provisional unlawful 
presence waiver applicants compared with the current waiver process is 
biometrics, fees collected for filing forms that are already required 
(such as the Form I-130) are not costs of this rule. The new fee 
revenue, however, is that generated by the additional demand shown in 
Table 7, and from transfers made by applicants to USCIS and DOS to 
cover the cost of processing the forms. In addition to the fees, there 
are nominal preparation costs associated with completing the forms. We 
estimate the amount of these fees and their associated preparation 
costs to give a more complete estimate of the impact of this rule. We 
consider the fee values to be a reasonable proxy for the underlying 
costs of this rule. The additional fees and preparation costs are shown 
in Table 10.
    In determining the preparation cost for the forms, different labor 
rates were used depending on the citizenship status of the petitioner. 
If the form is completed by the alien immediate relative (Form I-601A), 
the loaded minimum wage of $10.44 per hour was used. If the form is 
completed by a U.S.

[[Page 573]]

citizen, we used the mean hourly wage for ``all occupations'' as 
reported by the Bureau of Labor Statistics and then adjusted that wage 
upward to account for the costs of employee benefits, such as annual 
leave, for a fully loaded hourly wage rate of $31.31.\46\ The times to 
complete the forms are based on the estimated burden time reported for 
the individual forms.
---------------------------------------------------------------------------

    \46\ The $31.31 rate is calculated by multiplying the $21.74 
average hourly wage for all occupations May 2011 (available at 
http://www.bls.gov/oes/2011/may/oes_nat.htm) by the 1.44 fully 
loaded multiplier.
---------------------------------------------------------------------------

    These costs and appropriate fees paid to USCIS and DOS are 
calculated by the formula:

1. Cost of Form I-130: Preparation cost = ($31.31 x 1.5 hours) = 
$46.97; USCIS fee to cover processing costs = $420.00. Total cost = 
$466.97

2. Cost of Form I-601A: Preparation cost = ($10.44 x 1.5 hours) = 
$15.66; USCIS fee to cover processing costs = $585.00. Total cost = 
$600.66

3. Cost of Form I-864: Preparation cost = ($31.31 x 6.0 hours) = 
$187.86; DOS fee to cover processing costs = $88.00. Total cost = 
$275.86

4. Cost of Immigrant Visa: Preparation cost of Form DS-230 = ($10.44 x 
1.0 hour) = $10.44; Processing Fees: DOS fee to cover processing costs 
= $230; USCIS fee to cover processing costs = $165. Total cost = 
$405.44.

Based on the above, the total costs per application: ($466.97 + 600.66 
+ 275.86 + 405.44) = $1,748.93.

                          Table 10--Costs for Preparing and Filing USCIS and DOS Forms
                                        [Table 7 multiplied by $1,748.93]
----------------------------------------------------------------------------------------------------------------
                                           Additional preparation costs and filing fees with current constrained
                                                              demand or participation rate of
                  Year                   -----------------------------------------------------------------------
                                             25 percent        50 percent        75 percent        90 percent
----------------------------------------------------------------------------------------------------------------
Year 1..................................       $40,555,938       $81,110,127      $121,664,315      $145,998,927
Year 2..................................        10,129,803        20,259,605        30,387,659        36,466,939
Year 3..................................        10,442,861        20,883,973        31,325,085        37,591,501
Year 4..................................        10,764,664        21,529,328        32,293,992        38,754,540
Year 5..................................        11,100,459        22,199,168        33,297,878        39,957,804
Year 6..................................        11,444,998        22,889,996        34,334,994        41,203,042
Year 7..................................        11,803,529        23,607,057        35,410,586        42,493,752
Year 8..................................        12,174,302        24,348,603        36,522,905        43,828,186
Year 9..................................        12,559,066        25,116,384        37,673,701        45,209,841
Year 10.................................        12,956,073        25,910,398        38,864,722        46,638,716
                                         -----------------------------------------------------------------------
    10 Year Totals Undiscounted.........       143,931,692       287,854,640       431,775,838       518,143,249
                                         -----------------------------------------------------------------------
    10 Year Totals Discounted at 7.0           106,881,772       213,757,395       320,631,489       384,766,730
     percent............................
                                         -----------------------------------------------------------------------
    10 Year Totals Discounted at 3.0           125,678,197       251,348,945       377,018,045       452,432,274
     percent............................
----------------------------------------------------------------------------------------------------------------
Note: Sums may not total due to rounding.

    The totals in Table 10 are calculated by multiplying the induced 
demand shown in Table 7 by the $1,748.93 shown above. DHS acknowledges 
there are additional costs to the existing process, such as travel from 
the United States to the immediate relative's home country where the 
immigrant visa is being processed and the additional expense of 
supporting two households while awaiting an immigrant visa. Such costs 
are highly variable and depend on the circumstances of the specific 
petitioner. We did not estimate the impacts of these variable costs. To 
the extent that this rule allows immediate relatives to reduce the time 
spent in their home country, we expect a proportionate reduction in 
these costs. These cost savings represent a benefit of this rule.
    In addition, the final rule has removed the limitation that allowed 
aliens to file only one Form I-601A on the basis of an approved 
immediate relative petition. In response to public comment, DHS will 
allow an alien to file a new Form I-601A based on the same approved 
immediate relative petition if the initial Form I-601A is denied or 
withdrawn. If an alien chooses to file a new provisional unlawful 
presence waiver application, the alien would face the biometric costs 
(including biometric fees and travel to the ASC to submit biometrics) 
and the fee and preparation costs associated with Form I-601A. As 
previously established, the biometric costs are $149.29 and the Form I-
601A costs are $600.66 per applicant. The total costs associated with 
the estimated population volume are presented in Table 11.

 Table 11--Costs Associated With Applicants That Re-File Form I-601A After the Initial Form I-601A is Denied or
                                                    Withdrawn
                                         [Table 8 multiplied by $749.95]
----------------------------------------------------------------------------------------------------------------
                                            Additional costs for applications that are denied and re-filed over
                                                                   the range analysis of
                  Year                   -----------------------------------------------------------------------
                                             25 percent        50 percent        75 percent        90 percent
----------------------------------------------------------------------------------------------------------------
Year 1..................................       $10,938,021       $16,850,627       $22,763,982       $26,311,246
Year 2..................................         6,678,305         8,154,956         9,632,358        10,518,049
Year 3..................................         6,906,290         8,428,688         9,950,337        10,864,526

[[Page 574]]

 
Year 4..................................         7,141,774         8,710,669        10,280,315        11,222,252
Year 5..................................         7,385,508         9,003,900        10,621,542        11,592,727
Year 6..................................         7,637,491         9,306,130        10,974,768        11,975,952
Year 7..................................         7,898,473         9,619,609        11,340,744        12,373,425
Year 8..................................         8,169,205         9,943,587        11,718,719        12,783,648
Year 9..................................         8,448,937        10,279,565        12,110,193        13,208,869
Year 10.................................         8,738,417        10,626,792        12,515,916        13,649,090
                                         -----------------------------------------------------------------------
    10-Year Totals Undiscounted.........        79,942,420       100,924,521       121,908,872       134,499,783
                                         -----------------------------------------------------------------------
    10-Year Totals Discounted at 7.0            56,207,656        71,788,866        87,371,675        96,721,450
     percent............................
                                         -----------------------------------------------------------------------
    10-Year Totals Discounted at 3.0            68,195,707        86,516,943       104,840,098       115,834,193
     percent............................
----------------------------------------------------------------------------------------------------------------
Note: Sums may not total due to rounding.

    The total cost to applicants is shown in Table 12 as the sum of 
Table 9, Table 10, and Table 11.

                              Table 12--Total Costs to Applicants of the Final Rule
                                              [Sum of Tables 9-11]
----------------------------------------------------------------------------------------------------------------
                                            Estimated total cost at current constrained demand or participation
                                                                          rate of
                  Year                   -----------------------------------------------------------------------
                                             25 percent        50 percent        75 percent        90 percent
----------------------------------------------------------------------------------------------------------------
Year 1..................................       $57,898,052      $107,826,583      $157,756,013      $187,715,110
Year 2..................................        20,718,162        33,189,154        45,659,297        53,143,051
Year 3..................................        21,392,372        34,247,144        47,101,166        54,816,677
Year 4..................................        22,087,603        35,339,893        48,593,083        56,547,045
Year 5..................................        22,809,853        36,474,349        50,138,095        58,337,702
Year 6..................................        23,554,023        37,644,613        51,735,204        60,190,697
Year 7..................................        24,326,409        38,858,631        53,390,853        62,111,325
Year 8..................................        25,126,162        40,114,053        55,102,544        64,096,488
Year 9..................................        25,954,429        41,414,276        56,874,124        66,152,230
Year 10.................................        26,810,510        42,758,999        58,708,239        68,279,001
                                         -----------------------------------------------------------------------
    10 Year Totals Undiscounted.........       270,677,572       447,867,695       625,058,617       731,389,326
                                         -----------------------------------------------------------------------
    10 Year Totals Discounted at 7.0           195,997,110       327,576,683       459,156,625       538,116,229
     percent............................
                                         -----------------------------------------------------------------------
    10 Year Totals Discounted at 3.0           233,800,123       388,519,186       543,238,818       636,084,535
     percent............................
----------------------------------------------------------------------------------------------------------------
Note: Sums may not total due to rounding.

    Costs to the Federal Government include the possible costs of 
additional adjudication personnel associated with increased volume and 
the associated equipment (computers, telephones) and occupancy costs 
(if additional space is required). However, we expect these costs to be 
offset by the additional fee revenue collected for form processing. As 
previously explained, DHS has adopted the current cost for adjudicating 
an Application for Waiver of Ground of Inadmissibility, Form I-
601($585), as the initial filing fee that will be required for the Form 
I-601A. DHS will consider the impact of the provisional unlawful 
presence waiver process workflow 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. Consequently, we do not believe that this rule will 
impose additional costs on the Federal Government.
6. Benefits
    The benefits of the rule are the result of streamlining the 
immigrant visa waiver process. The primary benefits of the provisional 
unlawful presence waiver process changes are qualitative and result 
from reduced separation time for U.S. citizens and their immediate 
relatives. In addition to the obvious humanitarian and emotional 
benefits derived from family reunification, we also anticipate 
significant financial benefits accruing to the U.S. citizen due to the 
shortened period he or she would have to financially support the alien 
relative abroad. DHS is currently unable to estimate the average 
duration of time an immediate relative must spend abroad while awaiting 
waiver adjudication under the current process, and so cannot predict 
how the time spent apart would be reduced under the provisional 
unlawful presence waiver process. As a result of streamlining the

[[Page 575]]

unlawful presence waiver process, there also could be workflow 
efficiencies realized by both USCIS and DOS. The new process will 
enable USCIS to process and adjudicate the provisional unlawful 
presence waivers domestically. As a result, USCIS may be able to move a 
large part of its workload to Service Centers or field offices with 
resources that are less expensive than overseas staffing resources and 
that are flexible enough to accommodate filing surges. In addition, the 
new provisional unlawful presence waiver process will allow DOS to 
review these cases once, as opposed to the current unlawful presence 
process where these cases are reviewed twice, at a minimum. DHS 
anticipates that the new process will make the immigrant visa process 
more efficient.

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), Public Law 104-13, 
all Departments are required to submit to the Office of Management and 
Budget (OMB), for review and approval, any reporting and recordkeeping 
requirements inherent in a rule. See Public Law 104-13, 109 Stat. 163 
(May 22, 1995). This final rule requires that an applicant requesting a 
provisional unlawful presence waiver complete an Application for 
Provisional Waiver of Unlawful Presence, Form I-601A. This form is 
considered new information collection and is covered under the PRA. 
USCIS is currently seeking approval of this newly created instrument 
from OMB.
    DHS submitted Form I-601A to OMB for review. OMB temporarily 
assigned an OMB Control Number, 1615-0123, to the form and also filed 
comments in accordance with 5 CFR 1320.11(c). DHS has considered the 
comments received in response to the publication of the proposed rule 
and the comments submitted by OMB concerning the creation of the Form 
I-601A. DHS' response to the comments appears in this final rule and in 
an appendix to the supporting statement that accompanies this rule. 
USCIS has submitted the supporting statement to OMB as part of its 
request for approval of this new information collection instrument.
    On April 2, 2012, DHS published a proposed rule, Provisional 
Unlawful Presence Waivers of Inadmissibility for Certain Immediate 
Relatives, in the Federal Register at 77 FR 19902. In the PRA section 
of that rule, DHS inadvertently indicated that USCIS would be seeking 
to revise a currently approved information collection instrument. DHS, 
however, should have indicated that it would be requesting the approval 
of a new information collection instrument, Application for Provisional 
Unlawful Presence Waiver, Form I-601A. This final rule corrects that 
error.
    Despite the inadvertent error in the notice inserted in the PRA 
portion of the proposed rule, DHS clearly communicated to the public, 
in other parts of the proposed rule, that it was considering the 
creation of a new information collection instrument, Form I-601A, to be 
able to collect information required from certain immediate relatives 
of U.S. citizens seeking a provisional unlawful presence waiver of the 
unlawful presence inadmissibility ground. USCIS received comments from 
the public on the proposed Form I-601A. Those comments have been 
addressed under part IV (Public Comments on Proposed Rule).
    Lastly, DHS has updated the supporting statement to reflect a 
change in the estimate for the number of respondents that USCIS 
projected would submit this type of request from 38,277 respondents to 
62,348 respondents. This change of the initially projected estimate is 
due to the final rule's expansion of the eligibility criterion 
initially proposed, which results in an increase of the estimated 
population of aliens that DHS expects could file Form I-601A. With the 
increase in the total number of respondents, DHS has increased the 
total annual burden hours to 166,469 hours. In addition, DHS has 
revised the originally proposed form I-601A and its instructions to 
include the changes as discussed in Part IV (Public Comments on the 
Proposed Rule) and the appendix of the supporting statement. The 
revised materials can be viewed at www.regulations.gov.

G. Regulatory Flexibility Act

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

VII. Amendments

List of Subjects

8 CFR Part 103

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

8 CFR Part 212

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

    Accordingly, USCIS amends chapter I of title 8 of the Code of 
Federal Regulations as follows.

[[Page 576]]

PART 103--POWERS AND DUTIES; 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, 1365b; 31 U.S.C. 9701; Pub. L. 107-296, 116 Stat. 2135 (6 
U.S.C. 1 et seq.); E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 
Comp., p.166; 8 CFR part 2.

0
2. Section 103.7 is amended by revising paragraphs (b)(1)(i)(AA) and 
(c)(3)(i) to read as follows:


Sec.  103.7  Fees.

* * * * *
    (b) * * *
    (1) * * *
    (i) * * *
    (AA) Application for Waiver of Ground of Inadmissibility (Form I-
601) and Application for Provisional Unlawful Presence Waiver (I-601A). 
For filing an application for waiver of grounds of inadmissibility or 
an application for a provisional unlawful presence waiver: $585.
* * * * *
    (c) * * *
    (3) * * *
    (i) Biometric Fee, except for the biometric fee required for 
provisional unlawful presence waivers filed under 8 CFR 212.7(e).
* * * * *

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. Revising paragraphs (a)(1), (a)(3), and (a)(4); and
0
b. Adding paragraph (e).
    The revisions and addition read as follows:


Sec.  212.7  Waivers of certain grounds of inadmissibility.

    (a)(1) Application. Except as provided by 8 CFR 212.7(e), an 
applicant for an immigrant visa, adjustment of status, or a K or V 
nonimmigrant visa who is inadmissible under any provision of section 
212(a) of the Act for which a waiver is available under section 212 of 
the Act may apply for the related waiver by filing the form designated 
by USCIS, with the fee prescribed in 8 CFR 103.7(b)(1), and in 
accordance with the form instructions. Certain immigrants may apply for 
a provisional unlawful presence waiver of inadmissibility as specified 
in 8 CFR 212.7(e).
* * * * *
    (3) Decision. If the waiver application is denied, USCIS will 
provide a written decision and notify the applicant and his or her 
attorney or accredited representative and will advise the applicant of 
appeal procedures, if any, in accordance with 8 CFR 103.3. The denial 
of a provisional unlawful presence waiver is governed by 8 CFR 
212.7(e).
    (4) Validity. (i) A provisional unlawful presence waiver granted 
according to paragraph (e) of this section is valid subject to the 
terms and conditions as specified in paragraph (e) of this section. In 
any other case, approval of an immigrant waiver of inadmissibility 
under this section applies only to the grounds of inadmissibility, and 
the related crimes, events, or incidents that are specified in the 
application for waiver.
    (ii) Except for K-1 and K-2 nonimmigrants and aliens lawfully 
admitted for permanent residence on a conditional basis, an immigrant 
waiver of inadmissibility is valid indefinitely, even if the applicant 
later abandons or otherwise loses lawful permanent resident status.
    (iii) For a K-1 or K-2 nonimmigrant, approval of the waiver is 
conditioned on the K-1 nonimmigrant marrying the petitioner; if the K-1 
nonimmigrant marries the K nonimmigrant petitioner, the waiver becomes 
valid indefinitely, subject to paragraph (a)(4)(iv) of this section, 
even if the applicant later abandons or otherwise loses lawful 
permanent resident status. If the K-1 does not marry the K nonimmigrant 
petitioner, the K-1 and K-2 nonimmigrants remain inadmissible for 
purposes of any application for a benefit on any basis other than the 
proposed marriage between the K-1 and the K nonimmigrant petitioner.
    (iv) For an alien lawfully admitted for permanent residence on a 
conditional basis under section 216 of the Act, removal of the 
conditions on the alien's status renders the waiver valid indefinitely, 
even if the applicant later abandons or otherwise loses lawful 
permanent resident status. Termination of the alien's status as an 
alien lawfully admitted for permanent residence on a conditional basis 
also terminates the validity of a waiver of inadmissibility based on 
sections 212(h) or 212(i) of the Act that was granted to the alien. 
Separate notification of the termination of the waiver is not required 
when an alien is notified of the termination of residence under section 
216 of the Act, and no appeal will lie from the decision to terminate 
the waiver on this basis. If the alien challenges the termination in 
removal proceedings, and the removal proceedings end in the restoration 
of the alien's status, the waiver will become effective again.
    (v) Nothing in this subsection precludes USCIS from reopening and 
reconsidering a decision if the decision is determined to have been 
made in error.
* * * * *
    (e) Provisional Unlawful Presence Waivers of Inadmissibility for 
Certain Immediate Relatives. The provisions of this paragraph (e) are 
applicable to certain aliens who are pursuing consular immigrant visa 
processing as an immediate relative of a U.S. citizen.
    (1) Jurisdiction. All applications for a provisional unlawful 
presence waiver, including an application for a provisional unlawful 
presence waiver made by an alien in removal proceedings before the 
Executive Office for Immigration Review, must be filed with 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 and 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 authorize any interim immigration benefits such as employment 
authorization or advance parole. Any application for a travel document 
or request for employment authorization that is submitted in connection 
with a provisional unlawful presence waiver application will be 
rejected.
    (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

[[Page 577]]

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 
or 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, and for 
biometrics collection at a USCIS ASC;
    (ii) Upon departure, would be inadmissible only under section 
212(a)(9)(B)(i) of the Act at the time of the immigrant visa interview;
    (iii) Qualifies as an immediate relative under section 
201(b)(2)(A)(i) of the Act;
    (iv) Is the beneficiary of an approved immediate relative petition;
    (v) Has a case pending with the Department of State based on the 
approved immediate relative petition and has paid the immigrant visa 
processing fee as evidenced by a State Department Visa Processing Fee 
Receipt;
    (vi) Will depart from the United States to obtain the immediate 
relative immigrant visa; and
    (vii) Meets the requirements for a waiver provided in section 
212(a)(9)(B)(v) of the Act, except the alien must show extreme hardship 
to his or her U.S. citizen spouse or parent.
    (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) USCIS has reason to believe that the alien may be subject to 
grounds of inadmissibility other than unlawful presence under section 
212(a)(9)(B)(i)(I) or (II) of the Act at the time of the immigrant visa 
interview with the Department of State;
    (ii) The alien is under the age of 17;
    (iii) The alien does not have a case pending with the Department of 
State, based on the approved immediate relative petition, and has not 
paid the immigrant visa processing fee;
    (iv) The Department of State initially acted to schedule the 
immigrant visa interview prior to January 3, 2013 for the approved 
immediate relative petition on which the provisional unlawful presence 
waiver is based, even if the interview has since been cancelled or 
rescheduled after January 3, 2013;
    (v) The alien is in removal proceedings, unless the removal 
proceedings are administratively closed and have not been recalendared 
at the time of filing the Form I-601A;
    (vi) The alien is subject to a final order of removal issued under 
section 217, 235, 238, or 240 of the Act or a final order of exclusion 
or deportation under former 236 or 242 of the Act (pre-April 1, 1997), 
or any other provision of law (including an in absentia removal order 
under section 240(b)(5) of the Act);
    (vii) The alien is subject to reinstatement of a prior removal 
order under section 241(a)(5) of the Act; or
    (viii) The alien has a pending application with USCIS for lawful 
permanent resident status.
    (5) Filing. (i) An application for a provisional unlawful presence 
waiver of the unlawful presence inadmissibility bars under section 
212(a)(9)(B)(i)(I) or (II) of the Act, including an application by an 
alien in removal proceedings that are administratively closed and have 
not been recalendared at the time of filing the Form I-601A, must be 
filed in accordance with 8 CFR part 103 and on the form designated by 
USCIS. The prescribed fee under 8 CFR 103.7(b)(1) and supporting 
documentation must be submitted in accordance with the form 
instructions.
    (ii) An application for a provisional unlawful presence waiver will 
be rejected and the fee and package returned to the alien if the alien:
    (A) Fails to pay the required filing fee for the provisional 
unlawful presence waiver application or to pay the correct filing fee;
    (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 an approved petition that 
classifies the alien as an immediate relative of a U.S. citizen;
    (F) Fails to include a copy of the fee receipt evidencing that the 
alien has paid the immigrant visa processing fee to the Department of 
State; or
    (G) Has indicated on the provisional unlawful presence waiver 
application that the Department of State initially acted to schedule 
the immigrant visa interview prior to January 3, 2013, even if the 
interview was cancelled or rescheduled after January 3, 2013.
    (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 biometrics capture. If an alien fails to 
appear for biometrics capture, the provisional unlawful presence waiver 
application will be considered abandoned and denied pursuant to 8 CFR 
103.2(b)(13). The alien may not appeal or file a motion to reopen or 
reconsider an abandonment denial under 8 CFR 103.5.
    (7) Burden of proof. The alien has the burden to establish 
eligibility for the provisional unlawful presence waiver as described 
in this paragraph of this section, and under section 212(a)(9)(B)(v) of 
the Act, including that the alien merits a favorable exercise of the 
Secretary's discretion.
    (8) Adjudication. USCIS will adjudicate the provisional unlawful 
presence waiver application in accordance with this paragraph of this 
section and section 212(a)(9)(B)(v) of the Act, except the alien must 
show extreme hardship to his or her U.S. citizen spouse or parent. 
USCIS also may require the alien and the U.S. citizen petitioner to 
appear for an interview pursuant to 8 CFR 103.2(b)(9). If USCIS finds 
that the alien does not meet the eligibility requirements for the 
provisional unlawful presence waiver as described in paragraph (e) of 
this section, or if USCIS otherwise determines in its discretion that a 
waiver is not warranted, USCIS will deny the waiver application. 
Notwithstanding 8 CFR 103.2(b)(16), USCIS may deny an application for a 
provisional unlawful presence waiver without prior issuance of a 
request for evidence or notice of intent to deny.
    (9) Notice of Decision. USCIS will notify the alien and the alien's 
attorney of record or accredited representative of the decision in 
accordance with 8 CFR 103.2(b)(19). USCIS also may notify the 
Department of State. Denial of an application for a provisional 
unlawful presence waiver is without prejudice to the alien filing 
another provisional unlawful presence waiver application under 
paragraph (e) of this section, provided the alien meets all of the 
requirements in this part, and the alien's case must be pending with 
the Department of State. An alien also may elect to file a Form I-601, 
Waiver of Grounds of Inadmissibility, pursuant to paragraph (a)(1) of 
this section after departing the United States, appearing for his or 
her immigrant visa interview at the U.S. Embassy or consulate abroad, 
and after the Department of State determines the alien's admissibility 
and eligibility for an immigrant visa. Accordingly, denial of a request 
for a provisional unlawful presence waiver is not a final agency action 
for purposes of section 10(c) of the Administrative Procedure Act, 5 
U.S.C. 704.
    (10) Withdrawal of waiver requests. An alien may withdraw his or 
her request for a provisional unlawful presence waiver at any time 
before USCIS makes a final decision. Once the

[[Page 578]]

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 Form I-601A, in accordance with the form instructions and required 
fees. The alien's case must be pending with the Department of State and 
the alien must notify the Department of State that he or she intends to 
file a new Form I-601A.
    (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 
a Department of State consular officer in light of the approved 
provisional unlawful presence waiver.
    (ii) Waives the alien's inadmissibility under section 212(a)(9)(B) 
of the Act only for purposes of the application for an immigrant visa 
and admission to the United States as an immediate relative of a U.S. 
citizen pursuant to the approved immediate relative petition (Form I-
130 or I-360) upon which the provisional unlawful presence waiver 
application was based.
    (iii) Does not waive any ground of inadmissibility other than the 
grounds of inadmissibility under section 212(a)(9)(B)(i)(I) or (II) of 
the Act.
    (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 consular officer determines at the time of the immigrant 
visa interview that the alien is ineligible to receive a visa under 
section 212(a) of the Act other than under section 212(a)(9)(B)(i)(I) 
or (II) of the Act;
    (ii) The immigrant visa petition approval associated with the 
provisional unlawful presence waiver is at any time revoked, withdrawn, 
or rendered invalid but not otherwise reinstated for humanitarian 
reasons or converted to a widow or widower petition;
    (iii) The immigrant visa registration is terminated in accordance 
with section 203(g) of the Act, and has not been reinstated in 
accordance with section 203(g) of the Act; or
    (iv) The alien, at any time before or after approval of the 
provisional unlawful presence waiver or before an immigrant visa is 
issued, reenters or attempts to reenter the United States without being 
inspected and admitted or paroled.

Janet Napolitano,
Secretary.
[FR Doc. 2012-31268 Filed 1-2-13; 4:18 pm]
BILLING CODE 9111-97-P