19902 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 

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: Department of Homeland 

Security, U.S. Citizenship and 

Immigration Services. 

ACTION: Proposed rule. 

SUMMARY: On January 9, 2012, U.S. 

Citizenship and Immigration Services 

(USCIS) announced its intention to 

change its current process for filing and 

adjudication of certain applications for 

waivers of inadmissibility filed in 

connection with an immediate relative 

immigrant visa application. USCIS now 

proposes to amend its regulations to 

allow certain immediate relatives of 

U.S. citizens who are physically present 

in the United States to request 

provisional unlawful presence waivers 

under the Immigration and Nationality 

Act of 1952, as amended (INA or Act), 

prior to departing from the United 

States for consular processing of their 

immigrant visa applications. Currently, 

such aliens must depart from the United 

States and request waivers of 

inadmissibility during the overseas 

immigrant visa process, often causing 

U.S. citizens to be separated for 

extended periods from their immediate 

relatives who are otherwise eligible for 

an immigrant visa and admission for 

lawful permanent residence. Under the 

proposal, USCIS would grant a 

provisional unlawful presence waiver 

that would become fully effective upon 

the alien’s departure from the United 

States and the U.S. Department of State 

(DOS) consular officer’s determination 

at the time of the immigrant visa 

interview that, in light of the approved 

provisional unlawful presence waiver 

and other evidence of record, the alien 

is otherwise admissible to the United 

States and eligible to receive an 

immigrant visa. USCIS does not 

envision issuing Notices to Appear 

(NTA) to initiate removal proceedings 

against aliens whose provisional waiver 

applications have been approved. 

However, if USCIS, for example, 

discovers acts, omissions, or postapproval activity that would meet the 

criteria for NTA issuance or determines 

that the provisional waiver was granted 

in error, USCIS may issue an NTA, 

consistent with USCIS’s NTA issuance 

policy, as well as reopen the provisional 

waiver approval and deny the waiver 

request. USCIS anticipates that the 

proposed changes will significantly 

reduce the length of time U.S. citizens 

are separated from their immediate 

relatives who are required to remain 

outside of the United States for 

immigrant visa processing and during 

adjudication of a waiver of 

inadmissibility for the unlawful 

presence. USCIS also believes that the 

proposed process, which reduces the 

degree of interchange between the DOS 

and USCIS, will create efficiencies for 

both the U.S. Government and most 

applicants. In addition to codifying the 

new process, USCIS proposes 

amendments clarifying other 

regulations. 

Even after USCIS begins accepting 

provisional unlawful presence waiver 

applications, the filing or approval of a 

provisional unlawful presence waiver 

application will not: confer any legal 

status, protect against the accrual of 

additional unlawful presence, authorize 

an alien to enter the United States 

without securing a visa or other 

appropriate entry document, convey any 

interim benefits (e.g., employment 

authorization, parole, or advance 

parole), or protect an alien from being 

placed in removal proceedings or 

removed from the United States. 

Do not send an application requesting 

a provisional waiver under the 

procedures under consideration in this 

proposed rule. Any provisional waiver 

application filed before the rule 

becomes final and effective will be 

rejected and the application package 

returned to the applicant, including any 

fees. USCIS will begin accepting 

provisional waiver applications only 

after a final rule is issued and the 

procedural change becomes effective. 

DATES: Written comments should be 

submitted on or before June 1, 2012. 

ADDRESSES: You may submit comments, 

identified by DHS Docket No. USCIS– 

2012–0003, by one of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Email: You may submit comments 

directly to USCIS by email at 

uscisfrcomment@dhs.gov. Include DHS 

Docket No. USCIS–2012–0003 in the 

subject line of the message. 

• Mail: Sunday Aigbe, Chief, 

Regulatory Products Division, Office of 

the Executive Secretariat, U.S. 

Citizenship and Immigration Services, 

Department of Homeland Security, 20 

Massachusetts Avenue NW., 

Washington, DC 20529–2020. To ensure 

proper handling, please reference DHS 

Docket No. USCIS–2012–0003 on your 

correspondence. This mailing address 

may be used for paper, disk, or CD– 

ROM submissions. 

• Hand Delivery/Courier: Sunday 

Aigbe, Chief, Regulatory Products 

Division, Office of the Executive 

Secretariat, U.S. Citizenship and 

Immigration Services, Department of 

Homeland Security, 20 Massachusetts 

Avenue NW., Washington, DC 20529– 

2020. Contact Telephone Number is 

(202) 272–8377. 

FOR FURTHER INFORMATION CONTACT: 

Roselyn Brown-Frei, Office of Policy 

and Strategy, Residence and 

Naturalization Division, U.S. 

Citizenship and Immigration Services, 

Department of Homeland Security, 20 

Massachusetts Avenue NW., 

Washington, DC 20529–2099, 

Telephone (202) 272–1470 (this is not a 

toll free number). 

Table of Contents: 

I. Public Participation 

II. Executive Summary 

III. Background 

A. Legal Authority 

B. Grounds of Inadmissibility 

C. Unlawful Presence 

D. Current Waiver Process 

E. Problems With the Current 

Inadmissibility Waiver Process 

F. Notice of Intent 

IV. Proposed Changes 

A. Overview of Proposed Provisional 

Unlawful Presence Waiver Process 

B. Rationale for Proposed Change 

C. Aliens Eligible To Seek a Provisional 

Unlawful Presence Waiver 

D. Aliens Ineligible for a Provisional 

Unlawful Presence Waiver 

E. Filing, Adjudication, and Decisions 

F. Motions To Reopen or Reconsider or 

Appeals of Denied Provisional Unlawful 

Presence Waiver Applications 

G. Terms and Conditions of the Provisional 

Unlawful Presence Waiver 

H. Validity of the Provisional Unlawful 

Presence Waiver 

I. Limitations of a Provisional Unlawful 

Presence Waiver 

J. Clarification of 8 CFR 212.7(a)(1) and 

(a)(4) 

V. Public Input 

VI. Statutory and Regulatory Requirements 

A. Unfunded Mandates Reform Act of 1995 

B. Small Business Regulatory Enforcement 

Fairness Act of 1996 

C. Executive Orders 12866 (Regulatory 

Planning and Review) and 13563 

(Improving Regulation and Regulatory 

Review) 

D. Executive Order 13132: This proposed 

rule will not have substantial direct 

effects on the States, on the relationship 

between the National Government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government. Therefore, 

in accordance with section 6 of 


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Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 19903 

Executive Order 13132, it is determined 

that this rule does not have sufficient 

federalism implications to warrant the 

preparation of a federalism summary 

impact statement. 

E. Executive Order 12988 Civil Justice 

Reform 

F. Paperwork Reduction Act 

G. Regulatory Flexibility Act 

SUPPLEMENTARY INFORMATION: 

I. Public Participation 

All interested parties are invited to 

participate in this rulemaking by 

submitting written data, views, or 

arguments on all aspects of this 

proposed rule. Comments that will 

provide the most assistance to DHS in 

developing these procedures will 

reference a specific portion of this rule, 

explain the reason for any 

recommended change, and include data, 

information, or authority that supports 

the recommended change. 

Instructions: All submissions must 

include the agency name and DHS 

Docket No. USCIS–2012–0003. All 

comments received will be posted 

without change to http:// 

www.regulations.gov, including any 

personal information provided. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.regulations.gov. 

II. Executive Summary 

A. Purpose of the Regulatory Action 

1. Need for the Regulatory Action 

Currently, certain spouses, children 

and parents of U.S. citizens (‘‘immediate 

relatives’’) who are in the United States 

are not eligible to apply for lawful 

permanent resident status (LPR) without 

leaving the United States because they 

entered the country unlawfully. These 

immediate relatives must travel abroad 

to obtain an immigrant visa from the 

Department of State (DOS) and, in many 

cases, also must request from the 

Department of Homeland Security 

(DHS) a waiver of the inadmissibility 

that resulted from their unlawful 

presence while they remain outside of 

the United States, separated from their 

U.S. citizen spouses, parents, or 

children. In some cases, waiver 

application processing can take well 

over a year, and the prolonged 

separation from immediate relatives can 

cause many U.S. citizens to experience 

extreme humanitarian and financial 

hardships. In addition, the action 

required for these immediate relatives to 

obtain LPR status in the United States— 

departure from the United States to 

apply for an immigrant visa at a DOS 

consulate abroad—is the very action 

that triggers the unlawful presence 

inadmissibility grounds under INA 

section 212(a)(9)(B)(i). As a result, many 

immediate relatives who may qualify for 

an immigrant visa are reluctant to 

proceed abroad to seek an immigrant 

visa. 

2. Proposed Provisional Unlawful 

Waiver Process 

DHS proposes to change its current 

process for the filing and adjudication of 

certain waivers of inadmissibility for 

qualifying immediate relatives of U.S. 

citizens, who are physically present in 

the United States, but must proceed 

abroad to obtain their immigrant visas. 

DHS proposes to allow qualifying 

immediate relatives to apply for a 

provisional waiver of their 

inadmissibility for unlawful presence 

while they are still in the United States 

and before they leave to attend their 

immigrant visa interview abroad. 

Approving an application for a 

provisional unlawful presence waiver 

prior to the immediate relative’s 

immigrant visa interview will allow the 

DOS consular officer to issue the 

immigrant visa without delay if there 

are no other grounds of inadmissibility 

and if the immediate relative otherwise 

is eligible to be issued an immigrant 

visa. The immediate relative would not 

have to wait abroad during the period 

when USCIS adjudicates his or her 

waiver request, but rather could remain 

in the United States with his or her U.S. 

citizen spouse or parent during that 

period. As a result, U.S. citizens’ 

separation from their immediate 

relatives would be significantly 

reduced. In addition, given the greater 

certainty that will result from this 

process, U.S. citizens and their family 

members would also be able to better 

plan for the immediate relative’s 

departure and eventual return to the 

United States. 

3. Legal Authority 

The Secretary of Homeland Security’s 

authority for this proposed procedural 

change can be found in the Homeland 

Security Act of 2002, Public Law 107– 

296, section 102, 116 Stat. 2135, 

6 U.S.C. 112, and section 103 of the 

Immigration and Nationality Act (INA 

or the Act), 8 U.S.C. 1103, which give 

the Secretary the authority to administer 

and enforce the immigration and 

nationality laws. The Secretary’s 

discretionary authority to waive the 

ground of inadmissibility for unlawful 

presence can be found in INA section 

212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v). 

The regulation governing certain 

inadmissibility waivers is 8 CFR 212.7, 

and the fee schedule for waiver requests 

is found at 8 CFR 103.7. 

B. Summary of the Major Provisions of 

the Regulatory Action in Question 

DHS proposes to allow certain 

immediate relatives to file provisional 

waiver applications before they depart 

from the United States for their 

immigrant visa interviews. 

1. Eligibility for the Provisional Waiver 

Individuals may request a provisional 

waiver if: 

i. Their sole ground of inadmissibility 

at the time of the immigrant visa 

interview with DOS would be unlawful 

presence for more than 180 days; 

ii. They are the beneficiary of an 

approved Form I–130, Petition for Alien 

Relative or Form I–360, Petition for 

Amerasian, Widow(er), and Special 

Immigrant (classifying them as 

immediate relatives), and seek an 

immigrant visa from DOS based on this 

approved petition; 

iii. They are physically present in the 

United States when they file the 

application for the provisional unlawful 

presence waiver; 

iv. They appear for biometrics capture 

in the United States; 

v. They establish that a U.S. citizen 

spouse or parent would experience 

extreme hardship if the individual is 

denied admission to the United States 

as an LPR; 

vi. They warrant a favorable exercise 

of discretion; and 

vii. They are 17 years or older at the 

time of filing an application for a 

provisional unlawful presence waiver. 

2. Ineligibility for the Provisional 

Unlawful Presence Waiver 

Individuals are ineligible for a 

provisional waiver if: 

i. They are outside the United States; 

ii. They do not have an approved 

Form I–130 or Form I–360 petition, 

classifying them as an immediate 

relative; 

iii. They have not paid the immigrant 

visa processing fee to DOS and are not 

actively pursuing the immigrant visa 

process based on the approved petition; 

iv. They have already been scheduled 

for an immigrant visa interview; 

v. They are under the age of 17 years 

when the provisional unlawful presence 

waiver is filed; 

vi. They are in removal proceedings 

that have not been terminated or 

dismissed; 

vii. They have not had the charging 

document (Notice to Appear) to initiate 

removal proceedings cancelled; 

viii. They are in removal proceedings 

that have been administratively closed 

but not subsequently reopened for the 

issuance of a final voluntary departure 

order; 


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ix. They are subject to a final order of 

removal; 

x. They have a pending application 

for adjustment of status to that of an 

LPR in the United States; 

xi. USCIS has reason to believe they 

would be subject to one or more other 

grounds of inadmissibility; 

xii. They fail to establish extreme 

hardship or do not merit a favorable 

exercise of discretion; or 

xiii. They previously filed a 

provisional unlawful presence waiver 

application. 

3. Adjudication and Decision 

USCIS would adjudicate the 

provisional unlawful presence waiver 

application and issue requests for 

evidence. USCIS would not issue 

Notices of Intent to Deny (NOIDs). If 

USCIS approves the provisional waiver 

application, USCIS would notify the 

applicant and DOS of the approval. 

Denials cannot be appealed and aliens 

will not have the right to seek motions 

to reopen or reconsider USCIS’s 

decision. Aliens whose provisional 

waiver requests are denied, however, 

may still apply for a waiver through the 

current I–601 waiver process. USCIS 

also reserves the authority to reopen and 

reconsider on its own motion an 

approval or a denial of a provisional 

waiver application at any time. 

4. Effect of Waiver 

An approved provisional waiver 

would not become effective until the 

alien departs from the United States, 

appears for his or her immigrant visa 

interview and is found admissible and 

otherwise eligible for the immigrant visa 

by DOS. The provisional waiver would 

then become a permanent waiver, 

waiving the inadmissibility based on the 

period of unlawful presence noted in 

the waiver request. 

5. Revocation 

An approved provisional waiver is 

automatically revoked if DOS denies the 

immigrant visa application or if the 

underlying immigrant visa petition 

approval is revoked, withdrawn, or 

otherwise rendered invalid. An 

approved waiver also is revoked if the 

alien is inadmissible on grounds other 

than for unlawful presence under INA 

section 212(a)(9)(B)(i), 8 U.S.C. 

1182(a)(9)(B)(i), if the alien is otherwise 

ineligible for an immigrant visa, or if 

DOS terminates the alien’s immigrant 

visa registration under INA section 

203(g), 8 U.S.C. 1153(g). 

C. Costs and Benefits 

This proposed rule is expected to 

result in a reduction in the time that 

U.S. citizens are separated from their 

alien immediate relatives, thus reducing 

the financial and emotional hardship for 

these families. In addition, the Federal 

Government would achieve increased 

efficiencies in processing immigrant 

visas for individuals subject to the 

inadmissibility bar. 

DHS estimates the discounted total 

ten-year cost of this rule would range 

from approximately $100.6 million to 

approximately $303.8 million at a seven 

percent discount rate. Compared with 

the current waiver process, this rule 

proposes that the provisional waiver 

applicants submit biometric 

information. Included in this cost 

estimate is the cost of collecting 

biometrics, which we estimate will 

range from approximately $28 million to 

approximately $42.5 million at seven 

percent over ten years. In addition, as 

this rule significantly streamlines the 

current process, DHS expects that 

additional applicants will apply for the 

provisional unlawful presence waiver 

compared to the current waiver process. 

To the extent that this rule induces new 

demand for immediate relative visas, 

additional forms such as the Form I– 

130, Petition for Alien Relative, will be 

filed compared to the pre-rule baseline. 

These additional forms will involve fees 

being paid by applicants to the Federal 

Government for form processing and 

additional opportunity costs of time 

being incurred by applicants to provide 

the information required by the forms. 

The cost estimate for this rule also 

includes the impact of this induced 

demand, which we estimate will range 

from approximately $72.6 million to 

approximately $261.3 million at seven 

percent over ten years. 

Estimates for the costs of the proposed 

rule were developed assuming that 

current demand is constrained because 

of concerns that families may endure 

lengthy separations under the current 

system. Because of uncertainties as to 

the degree of the current constraint of 

demand, DHS used a range of constraint 

levels with corresponding increases in 

demand to estimate the costs. The costs 

for each increase in demand are 

summarized below. 

Estimated increase in costs with an increase in demand of: 

25% 50% 75% 90% 

Cost of Biometrics Collection and Processing 

10 year Costs Undiscounted ................................................... $40,353,130 $48,423,756 $56,494,382 $61,336,758 

Total 10 year Costs Discounted at 7% ................................... 27,967,676 33,561,211 39,154,746 42,510,867 

Total 10 year Costs Discounted at 3% ................................... 34,221,714 41,066,057 47,910,400 52,017,006 

Costs of Applications for the Additional (Induced) Demand for Immigrant Visas 

10 year Costs Undiscounted ................................................... $104,738,108 $209,476,215 $314,214,323 $377,057,188 

Total 10 year Costs Discounted at 7% ................................... 72,591,182 145,182,365 217,773,547 261,328,257 

Total 10 year Costs Discounted at 3% ................................... 88,823,781 177,647,563 266,471,344 319,765,613 

Total Costs to New Applicants 

10 year Costs Undiscounted ................................................... $145,091,238 $257,899,971 $370,708,705 $438,393,945 

Total 10 year Costs Discounted at 7% ................................... 100,558,858 178,743,575 256,928,293 303,839,123 

Total 10 year Costs Discounted at 3% ................................... 123,045,496 218,713,620 314,381,745 371,782,619 

III. Background 

A. Legal Authority 

The Homeland Security Act of 2002, 

Public Law 107–296, section 102, 116 

Stat. 2135, 6 U.S.C. 112, and section 103 

of the INA, 8 U.S.C. 1103, charge the 

Secretary of Homeland Security 

(Secretary) with administration and 

enforcement of the immigration and 

naturalization laws. The Secretary 

would effectuate these proposed 

changes under the broad authority to 

administer the Department of Homeland 

Security and the authorities provided 


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1U.S. citizens also may sponsor unmarried sons 

and daughters (21 years of age and older) and 

married sons and daughters, and lawful permanent 

residents may sponsor spouses, children 

(unmarried and under the age of 21), and unmarried 

sons and daughters (21 years of age and older). See 

INA sections 203(a), 204(a), 8 U.S.C. 1153(a), 

1154(a). Because these relatives would not be 

eligible for the provisional waiver process for the 

reasons described in this proposed rule, they are 

not included in this discussion. 

2Certain immediate relatives (i.e., widows/ 

widowers of U.S. citizen and their minor unmarried 

children) can self-petition by filing a Form I–360, 

Petition for Amerasian, Widow(er) or Special 

Immigrant. Additionally, if the U.S. citizen spouse 

is deceased after the Form I–130 has been filed, the 

I–130 converts automatically to an approved I–360 

widow/widower petition if the I–130 was approved 

at the time of the U.S. citizen’s death. If the I–130 

was pending at the time of the U.S. citizen’s death, 

the pending I–130 converts automatically to a 

pending I–360 widow/widower petition. 

under the Homeland Security Act of 

2002, the immigration and nationality 

laws, and other delegated authority. 

B. Grounds of Inadmissibility 

U.S. immigration laws provide 

mechanisms for U.S. citizens to bring 

their families into the United States for 

family reunification, including, in some 

cases, their immediate relatives who 

have previously violated the 

immigration laws. At the same time, 

however, the immigration laws 

prescribe acts, conditions, and conduct 

that bar aliens, including immediate 

relatives of U.S. citizens, from being 

admitted to the United States or 

obtaining an immigrant visa. Such acts, 

conditions, and conduct include certain 

criminal offenses, public health 

concerns, fraud and misrepresentation, 

failure to possess proper documents, 

accrual of more than 180 days of 

unlawful presence in the United States, 

and terrorism. The grounds of 

inadmissibility are set forth in section 

212(a) of the INA, 8 U.S.C. 1182(a). The 

Secretary has the discretion to waive 

certain inadmissibility grounds, if the 

alien files a request and if he or she 

meets the relevant statutory and 

regulatory requirements and agency 

policy. If the Secretary grants the 

waiver, the waived ground will no 

longer bar the alien’s admission, 

readmission, or immigrant visa 

eligibility. 

C. Unlawful Presence 

The inadmissibility grounds based on 

accrual of unlawful presence in the 

United States can be found in INA 

section 212(a)(9)(B)(i), 8 U.S.C. 

1182(a)(9)(B)(i). Under part (I) of this 

provision, an alien who was unlawfully 

present in the United States for more 

than 180 days but less than one year, 

and who then departs voluntarily from 

the United States before the 

commencement of removal proceedings, 

will be inadmissible for 3 years from the 

date of departure. Under part (II) of the 

same provision, an alien who was 

unlawfully present in the United States 

for one year or more and then departs 

the United States before, during, or after 

removal proceedings, will be 

inadmissible for 10 years from the date 

of the departure. 

These 3-year and 10-year unlawful 

presence bars do not take effect unless 

and until an alien departs from the 

United States. See, e.g., Matter of 

Rodarte-Roman, 23 I. & N. Dec. 905 (BIA 

2006). By statute, aliens are not 

considered to accrue unlawful presence 

for purposes of INA section 

212(a)(9)(B)(i) if they fall into certain 

categories. For example, aliens do not 

accrue unlawful presence while they are 

under 18 years of age. See INA section 

212(a)(9)(B)(iii)(I), 8 U.S.C. 

1182(a)(9)(B)(iii)(I). Similarly, 

individuals with pending asylum claims 

generally are not considered to be 

accruing unlawful presence while their 

applications are pending. See INA 

section 212(a)(9)(B)(iii)(II), 8 U.S.C. 

1182(a)(9)(B)(iii)(II). Battered women 

and children and victims of a severe 

form of trafficking in persons are not 

subject to the INA section 212(a)(9)(B)(i) 

ground of inadmissibility at all if they 

demonstrate that there was a substantial 

connection between their victimization 

and their unlawful presence. See INA 

section 212(a)(9)(B)(iii)(IV)–(V), 8 U.S.C. 

1182(a)(9)(B)(iii)(IV)–(V). 

The Secretary has the discretion to 

waive the 3-year and 10-year unlawful 

presence bars if the alien is seeking 

admission as an immigrant and if the 

alien demonstrates that the denial of his 

or her admission to the United States 

would cause ‘‘extreme hardship’’ to the 

alien’s U.S. citizen or LPR spouse or 

parent. See INA section 212(a)(9)(B)(v), 

8 U.S.C. 1182(a)(9)(B)(v). Because the 

granting of a waiver is discretionary, the 

alien also must establish that he or she 

merits a favorable exercise of discretion. 

Aliens who are subject to the unlawful 

presence bars must apply for and be 

granted a waiver in order to receive an 

immigrant visa and be admitted to the 

United States. 

D. Current Waiver Process 

If a U.S. citizen wishes to sponsor an 

alien spouse, parent, or child 

(unmarried and under the age of 21)— 

known as ‘‘immediate relatives’’ in the 

immigration laws, see INA section 

201(b)(2)(A)(i), 8 U.S.C. 

1151(b)(2)(A)(i)—to immigrate to the 

United States as an LPR, he or she must 

first file a Petition for Alien Relative, 

Form I–130, with USCIS, with 

appropriate fees and in accordance with 

USCIS form instructions.1 See INA 

section 204(a), 8 U.S.C. 1154(a); 8 CFR 

204.1 and 8 CFR 204.2. USCIS 

determines if an alien qualifies for 

classification as an immediate relative 

of the U.S. citizen.2 Id. 

If USCIS approves the petition for the 

alien relative, many aliens are eligible to 

apply for adjustment of status to that of 

an LPR under INA section 245, 8 U.S.C. 

1255, or other provisions of law. 

Through adjustment of status, the alien 

can obtain LPR status in the United 

States without having to depart. There 

are various reasons why an alien may be 

statutorily ineligible for adjustment of 

status. For example, the alien would be 

ineligible if he or she entered the United 

States without inspection and 

admission or parole. Also, there are 

some individuals who are eligible to 

adjust status in the United States but 

choose to proceed through consular 

processing abroad. An alien who is 

seeking LPR status based on an 

approved Form I–130 but who is 

ineligible for adjustment of status must 

obtain an immigrant visa from a 

consular officer abroad before the alien 

can return to the United States and be 

admitted as an immigrant. 

If USCIS determines that the alien 

qualifies as an immediate relative of a 

U.S. citizen, and the alien will be 

pursuing consular processing of an 

immigrant visa application abroad, 

USCIS forwards the approved petition 

to the DOS National Visa Center (NVC). 

At the NVC, DOS begins to process the 

immigrant visa application and requests 

that the applicant submit the fee and the 

documents required for visa processing. 

Upon submission of all necessary 

documents by the alien, DOS schedules 

the alien for an immigrant visa 

interview with a DOS consular officer at 

a U.S. Embassy or consulate abroad. 

During the immigrant visa interview, 

the consular officer determines whether 

the alien is admissible to the United 

States and eligible for an immigrant 

visa. If the consular officer finds that the 

alien is subject to any ground of 

inadmissibility, including the 3-year or 

10-year unlawful presence bars, the 

consular officer informs the alien that 

he or she may file an Application for 

Waiver of Grounds of Inadmissibility, 

Form I–601 (waiver application), with 

USCIS or, where USCIS is not present, 

with DOS, if a waiver is authorized for 

the relevant ground of inadmissibility. If 

the waiver application is filed with 

DOS, DOS forwards it to USCIS for 

adjudication. 


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3See 77 FR 1040 (Jan. 9, 2012). 

4See 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. 

The alien must remain abroad while 

USCIS adjudicates the waiver 

application. Currently, USCIS 

adjudicates waiver applications filed 

abroad at various locations in other 

countries and within the United States, 

depending on where the alien applied 

for his or her immigrant visa. If USCIS 

approves the waiver, it notifies DOS, 

and DOS may issue the immigrant visa 

if DOS determines that the alien is 

otherwise eligible to receive an 

immigrant visa. If the waiver is denied, 

the alien is subject to the unlawful 

presence bars and must remain outside 

of the United States for 3 or 10 years 

before being able to reapply for an 

immigrant visa. The alien may file an 

appeal of a denied waiver application 

with the USCIS Administrative Appeals 

Office, or file another waiver 

application in the future. 

The 3-year and 10-year unlawful 

presence bars do not apply unless and 

until the alien departs from the United 

States. As noted above, many aliens 

who would trigger these bars if they 

depart from the United States are, for 

other reasons, statutorily ineligible to 

apply for adjustment of status to that of 

an LPR while in the United States. 

Consequently, these aliens must depart 

the United States and apply for 

immigrant visas at a U.S. Embassy or 

consulate abroad before being able to 

return to the United States as 

immigrants. The action required to 

obtain lawful permanent residence in 

the United States, departure from the 

United States in order to apply for an 

immigrant visa at a consulate abroad, is 

the very action that triggers the INA 

section 212(a)(9)(B)(i) inadmissibility 

grounds. 

E. Problems With the Current 

Inadmissibility Waiver Process 

Under the current system, the entire 

waiver adjudication process occurs 

while the immediate relative remains 

outside of the United States, separated 

from his or her U.S. citizen spouse or 

parent. In some cases, the waiver 

processing time can take well over one 

year for reasons explained below. As a 

result, many immediate relatives are 

reluctant to proceed abroad to obtain an 

immigrant visa. In addition, the 

processing delays and extended 

absences of immediate relatives can 

cause many U.S. citizens and their 

families to experience extreme 

humanitarian and financial hardships. 

As such, an immediate relative’s 

extended absence from the United 

States can give rise to the sort of 

extreme hardships to U.S. citizen family 

members that the unlawful presence 

waivers are intended to address and, if 

the waiver is merited, avoid. 

The current waiver adjudication 

process also creates inefficiencies and 

costs for the Federal Government. 

Overseas adjudication processing times 

for waivers vary by location and the 

number of waiver requests pending at 

any given time. Processing times are 

affected by the resources, personnel, 

and space available at USCIS offices 

abroad and the U.S. Embassy or 

consulate in a particular location. It is 

expensive for USCIS to maintain staff 

outside the United States, and space in 

U.S. Embassies and consulates is 

limited. Waiver processing times also 

are affected by the need for USCIS and 

DOS to transfer cases between the two 

agencies when adjudicating the 

immigrant visa application and waiver 

request. These limitations often prolong 

the overall waiver adjudication process 

and contribute significantly to the time 

U.S. citizens and their family members 

are separated from their immediate 

relatives. 

F. Notice of Intent 

On January 9, 2012, USCIS published 

a notice of intent announcing its intent 

to change the current process for filing 

and adjudication of certain applications 

for waivers of inadmissibility filed in 

connection with an immediate relative 

immigrant visa application.3 The notice 

explained the proposed process that 

USCIS was considering and that USCIS 

would further develop, and ultimately 

finalize, the proposal through the 

rulemaking process. 

On January 10, 2012, USCIS 

conducted a stakeholder engagement to 

discuss the notice of intent. USCIS 

provided an overview of how the 

proposed process changes may affect 

filing and adjudication, and USCIS 

addressed questions from stakeholders. 

More than 900 people participated via 

telephone and in person. Topics 

covered included eligibility, procedures, 

and consequences of an approval or 

denial of a provisional waiver request. 

IV. Proposed Changes 

A. Overview of Proposed Provisional 

Unlawful Presence Waiver Process 

DHS proposes to allow certain 

‘‘immediate relatives’’ (spouse, parents, 

and children (unmarried and under the 

age of 21)) of U.S. citizens, as defined 

in INA section 201(b)(2)(A)(i), 8 U.S.C. 

1151(b)(2)(A)(i), to apply for a waiver of 

inadmissibility of the unlawful presence 

bars before leaving the United States to 

attend their immigrant visa interviews 

abroad. Individuals filing under the new 

process would be subject to a biometrics 

collection requirement to assist in 

identifying other possible grounds of 

inadmissibility and ensure the integrity 

of the process. If USCIS has reason to 

believe that, at the time of the visa 

interview, the individual may be 

inadmissible on grounds of 

inadmissibility other than the unlawful 

presence grounds, USCIS would deny 

the application. If USCIS denies the 

provisional waiver application, USCIS 

will follow the NTA issuance policy in 

effect at the time of adjudication to 

determine if it will initiate removal 

proceedings against the applicant.4

If USCIS approves the provisional 

unlawful presence waiver, the approval 

would be provisional. It would become 

fully effective only upon the alien’s 

departure from the United States and a 

determination by DOS that the alien is, 

in light of the approved provisional 

unlawful presence waiver, otherwise 

admissible and eligible for an immigrant 

visa. 

If USCIS denies the provisional 

unlawful presence waiver, the alien may 

apply for a waiver of the 3- or 10-year 

unlawful presence bar through the 

current process described above, 

following the immigrant visa interview 

with a DOS consular officer. Given that 

USCIS is establishing these provisional 

waiver procedures purely as a matter of 

agency discretion, USCIS will not, in 

the interests of administrative efficiency 

and finality, allow for more than one 

provisional unlawful presence waiver 

filing. USCIS also will not permit 

administrative appeals or motions to 

reopen or reconsider the denial of a 

provisional unlawful presence waiver 

request. See proposed 8 CFR 212.7(e)(3) 

and (10). USCIS, however, proposes to 

retain its discretionary authority to 

reopen or reconsider a case on a USCIS 

motion when warranted. See 8 CFR 

103.5(a)(5). USCIS is committed to 

issuing Requests for Evidence (RFE) in 

considering applications that it receives 

from unrepresented individuals or 

others if their applications are missing 

critical information needed to 

demonstrate extreme hardship. USCIS 

believes that RFEs will allow the 

applicant to address any deficiencies 

and to provide any additional 

information to establish eligibility for 

the provisional waiver. However, 


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5Congress’ emphasis on family reunification has 

long been reflected in immigration statutes. See, 

e.g., S. Rep. No. 89–748, at 13 (1965) (Comm. Rep. 

for the Immigration Act of 1965, Pub. L. 89–236, 79 

Stat. 911) (‘‘Reunification of families is to be the 

foremost consideration. The closer the family 

relationship the higher the preference. In order that 

the family unit may be preserved as much as 

possible, parents of adult U.S. citizens, as well as 

spouses and children, may enter the United States 

without numerical limitation.’’) (emphasis added); 

see also Statement by President George Bush Upon 

Signing S.358 (Immigration Act of 1990), 1990 

U.S.C.C.A.N. 6801–1 (Nov. 29, 1990) (‘‘The Act 

maintains our Nation’s historic commitment to 

family reunification by increasing the number of 

immigrant visas allocated on the basis of family 

ties’’). 

allowing applicants to file multiple 

applications would significantly 

interfere with the interagency 

operations between USCIS and DOS and 

substantially delay immigrant visa 

processing. 

B. Rationale for Proposed Change 

The 3-year and 10-year unlawful 

presence bars do not apply unless the 

alien departs from the United States. 

Accordingly, aliens who have accrued 

more than 180 days of unlawful 

presence do not trigger the 

inadmissibility ground unless and until 

they depart. Many of these aliens are not 

eligible to adjust status to that of an LPR 

while remaining in the United States 

and must depart from the United States 

to apply for and obtain an immigrant 

visa at a U.S. Embassy or consulate 

abroad. Therefore, the action required 

from the alien in order to obtain LPR 

status—the departure to attend the 

immigrant visa interview—is the very 

action that triggers the 3-year or 10-year 

unlawful presence bar. 

If DHS could approve an application 

for a provisional waiver of the unlawful 

presence bars prior to the alien’s 

immigrant visa interview abroad, the 

consular officer could issue the 

immigrant visa without delay following 

the interview. The alien would not have 

to wait abroad while USCIS adjudicates 

the waiver request. Instead, the alien 

could remain in the United States with 

his or her U.S. citizen spouse or parent 

while USCIS adjudicates his or her 

provisional unlawful presence waiver 

request. U.S. citizens, aliens, and their 

family members also could better plan 

for the immediate relative’s departure 

for the consular interview and eventual 

return to the United States. The concept 

of allowing applicants to apply for a 

waiver while still in the United States, 

in advance of their departure, is not new 

and has been implemented in other 

contexts. For example, certain aliens 

who previously were ordered removed 

or were removed from the United States 

must obtain the Secretary’s consent to 

reapply for admission to the United 

States because they are inadmissible 

under INA section 212(a)(9)(A), 8 U.S.C. 

1182(a)(9)(A). By law, consent to 

reapply must be obtained before the 

alien seeks to return to the United 

States. However, such aliens have been 

allowed to request consent to reapply in 

advance, while still in the United States 

before they depart and trigger 

inadmissibility under INA section 

212(a)(9)(A). Thus, the proposed 

provisional unlawful waiver process is 

consistent with past practice with 

respect to certain pre-departure 

adjudications that address other 

grounds of inadmissibility under INA 

section 212(a)(9), 8 U.S.C. 1182(a)(9). 

An approved provisional unlawful 

presence waiver would facilitate 

immigrant visa issuance shortly after the 

first consular interview. DHS believes 

that this process change would reduce 

the overall visa processing time, the 

period of separation of the U.S. citizen 

from his or her immediate relative, and 

the financial and emotional impact on 

the U.S. citizen and his or her family 

due to the immediate relative’s absence 

from the United States. It also may 

encourage individuals to take 

affirmative steps to obtain an immigrant 

visa to become an LPR as reduced 

waiting times abroad would render it an 

efficient, more predictable process, 

rather than one with unpredictable and 

prolonged periods of separation. 

For USCIS and DOS, the proposed 

changes would minimize the case 

transfers that are currently part of the 

waiver process and save both agencies 

time and resources. If USCIS could 

process and adjudicate the provisional 

unlawful presence waivers 

domestically, USCIS could move a large 

part of its workload to USCIS Service 

Centers or field offices in the United 

States with resources that are less 

expensive than overseas staffing 

resources and that are available and 

flexible enough to accommodate filing 

surges. By adjudicating the provisional 

unlawful presence waiver applications 

domestically, USCIS also may be able to 

better standardize its waiver processing 

times for all requests for waivers of 

inadmissibility that are filed by 

applicants who process their immigrant 

visas at a U.S. Embassy or consulate. 

Most waivers of inadmissibility filed 

overseas are filed by aliens who are 

subject to the unlawful presence bars 

only. 

USCIS has identified immediate 

relatives of U.S. citizens to participate 

in this streamlined process, in part, 

because the focus on U.S. citizens and 

their immediate relatives is consistent 

with Congress’ prioritization in the 

immigration laws of family 

reunification.5 Congress did not set an 

annual limit on the number of 

immediate relatives who may be 

admitted to the United States each year; 

consequently, visas for these aliens can 

be processed without awaiting 

availability of an immigrant visa 

number. 

USCIS proposes to limit the 

provisional unlawful presence waiver 

process to aliens who would be subject 

only to the unlawful presence bars at 

the time of visa issuance because of the 

unique nature of INA section 

212(a)(9)(B), as described above, and 

because preliminary data collected from 

DHS systems shows that approximately 

80% of the waiver applications filed 

overseas are filed by aliens solely 

inadmissible under the unlawful 

presence bars. Accordingly, this 

proposed rule would likely affect a large 

number of U.S. citizens and their 

families who could be reunited more 

quickly with their immediate relatives. 

Finally, USCIS is further limiting 

eligibility for a provisional unlawful 

presence waiver only to immediate 

relatives of U.S. citizens who can 

establish that denial of the waiver 

would result in extreme hardship to 

their U.S. citizen spouse or parents, as 

provided in INA section 212(a)(9)(B)(v). 

DHS would not modify the extreme 

hardship standard. 

USCIS is not extending this 

provisional unlawful presence waiver 

process to preference aliens. Preference 

aliens do not qualify as immediate 

relatives of U.S. citizens; they include 

unmarried sons and daughters of U.S. 

citizens (21 years of age or older); 

spouses, children, unmarried sons and 

daughters of LPRs; married sons and 

daughters of U.S. citizens; and siblings 

of U.S. citizens. Unlike immediate 

relatives, the preference categories have 

annual numerical limitations set by 

statute. The processing of visas for these 

aliens depends on the availability of an 

immigrant visa number, while 

immediate relatives always have visa 

availability. 

Additionally, USCIS is not extending 

this provisional unlawful presence 

waiver process to immediate relatives 

who are basing their claim on extreme 

hardship to an LPR spouse or parent. 

For the provisional unlawful presence 

waiver, the qualifying relative must be 

a U.S. citizen. Preference aliens and 

immediate relatives whose qualifying 

relative for the extreme hardship claim 

is an LPR can still apply for a waiver 

under the current waiver process, after 

a consular interview abroad. 


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19908 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 

6The Department has not determined whether it 

might extend the availability of this procedure to 

other aliens. 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’’). 

This approach is consistent with the 

Secretary’s authority to determine how 

best to administer the immigration laws 

and is within USCIS’s discretion to 

determine the most efficient means for 

effectuating the waiver process. This 

new process is only a change in filing 

procedures (i.e., where an alien can seek 

a waiver of inadmissibility); it is not a 

substantive change in how USCIS 

determines extreme hardship. Limiting 

eligibility for this alternative waiver 

process to immediate relatives of U.S. 

citizens who can establish extreme 

hardship to a U.S. citizen spouse or 

parent is consistent with Congress’ 

policy choice of focusing on 

reunification of U.S. citizen families. 

Focusing on hardship to U.S. citizens in 

the development of this discretionary 

procedure also is consistent with 

permissible distinctions that may be 

drawn between U.S. citizens and aliens 

and between classes of aliens in 

immigration laws and policies, see, e.g., 

Fiallo v. Bell, 430 U.S. 787, 792 (1977); 

Mathews v. Diaz, 426 U.S. 67, 81 (1976), 

and with the governmental interest in 

encouraging naturalization, see, e.g., 

City of Chicago v. Shalala, 189 F.3d 598, 

608 (7th Cir. 1999), and cases cited 

therein.6

DHS recognizes that certain 

immediate relatives of U.S. citizens may 

not be eligible to avail themselves of 

this alternative waiver process. Aliens 

who need a waiver of inadmissibility for 

unlawful presence based on extreme 

hardship to an LPR spouse or parent can 

still apply for such waivers after their 

consular interviews abroad. 

C. Aliens Eligible To Seek a Provisional 

Unlawful Presence Waiver 

USCIS proposes to limit the 

provisional unlawful presence waiver to 

aliens who meet the following criteria: 

1. Alien Must Be the Beneficiary of an 

Approved Immediate Relative Petition 

USCIS proposes to limit this proposed 

provisional unlawful presence waiver 

process to aliens who are ‘‘immediate 

relatives’’ under INA section 

201(b)(2)(A)(i), 8 U.S.C. 1151(b)(2)(A)(i). 

See proposed 8 CFR 212.7(e)(2). 

Immediate relatives of U.S. citizens 

include spouses of U.S. citizens; 

unmarried children under the age of 21 

of U.S. citizens; and parents of U.S. 

citizens over age 21. Certain surviving 

spouses and children of deceased U.S. 

citizens, self-petitioners, and aliens who 

would become conditional permanent 

residents based on a marriage to a U.S. 

citizen for less than two years are also 

considered immediate relatives. Such 

aliens are included in the category of 

eligible individuals who could seek a 

provisional unlawful presence waiver. 

See INA section 201(b)(2)(A)(i), 8 U.S.C. 

1151(b)(2)(A)(i); INA section 204(l), 8 

U.S.C. 1154(l); and INA section 216, 8 

U.S.C. 1186. 

USCIS has considered the possibility 

that the proposed process may lead to 

an increase in fraudulent family-based 

immigrant visa petitions. USCIS is 

committed to preventing and detecting 

fraud in its immigration benefits 

programs and to implementing existing 

preventive measures provided in the 

immigration laws. 

Fraud detection and prevention are 

integral to USCIS’s mission and to its 

standard operating procedures 

governing adjudications. USCIS’s Fraud 

Detection and National Security 

division (FDNS) focuses entirely on 

fraud detection and national security. 

FDNS investigates fraud in the benefit 

process and makes appropriate referrals 

to U.S. Immigration and Customs 

Enforcement (ICE), the Department of 

Justice, or other law enforcement 

agencies when such fraud should be 

considered for criminal prosecution. 

USCIS also has established standard 

operating procedures in field offices for 

referrals to FDNS on potential fraud 

cases that may require additional 

review. For fraud prevention, FDNS 

conducts benefit fraud assessments to 

detect any patterns or increase in 

fraudulent practices in a particular 

application type or area of the United 

States. 

Congress also provided in the 

immigration laws several measures 

aimed at preventing marriage fraud, 

focusing especially on potential for 

fraud in marriages of less than two 

years’ duration. For instance, Congress 

mandated that aliens married less than 

two years 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 has been married to the U.S. 

citizen for less than two years before the 

date of admission, the alien is admitted 

conditionally for a two-year period and, 

during that period, is considered a 

conditional resident. 

As a general matter, the U.S. citizen 

petitioner and the conditional 

permanent resident must jointly seek to 

remove the condition within the 90-day 

period immediately preceding the 

second anniversary of the date the alien 

obtained conditional permanent 

residence status. See id. 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 is automatically void. See id.; 

see also 8 CFR 212.7 and 216.4(a)(6). 

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). 

The administrative process for 

removal of conditions and the USCIS 

assessment of whether the marriage was 

entered into to evade the immigration 

laws provide strong tools for combating 

potential fraud. USCIS, therefore, is not 

proposing to exclude from the 

provisional unlawful presence waiver 

process aliens who have been married 

less than two years and will be admitted 

as conditional residents. However, in 

the case of marriages that would be 

subject to the conditional LPR 

provisions of INA section 216, USCIS 

reserves the right, in the exercise of 

discretion, to interview the alien and 

the U.S. citizen spouse (as provided in 

proposed 8 CFR 212.7(e)(7) of this 

proposed rule) in connection with the 

provisional waiver application, when 

USCIS determines that the facts in a 

particular case warrant additional 

inquiry and review. 

2. Alien Must Be Present in the United 

States When Filing the Provisional 

Unlawful Presence Waiver Application 

and for the Biometrics Appointment 

USCIS proposes to limit the category 

of immediate relatives eligible for the 

provisional unlawful presence waiver to 

aliens who are present in the United 

States but who are required to depart to 

immigrate through the DOS consular 

process abroad. See proposed 8 CFR 

212.7(e)(2)(i). Eligible immediate 

relatives also must be present in the 

United States to provide biometrics at 

an USCIS Application Support Center 

(ASC). This new biometric requirement 

will help USCIS determine if the alien 

potentially is subject to other grounds of 

inadmissibility or does not merit a 

favorable exercise of discretion, and is 

consistent with the agency’s security 

and public safety priorities. Aliens who 

are outside the United States may not 

seek a provisional unlawful presence 


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Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 19909 

7 INA section 212(a)(9)(B)(v), 8 U.S.C. 

1182(a)(9)(B)(v), allows for consideration of extreme 

hardship to a U.S. citizen spouse or parent or to an 

LPR spouse or parent. As explained previously, 

USCIS is limiting eligibility for the provisional 

waiver to those who can show extreme hardship to 

a U.S. citizen spouse or parent. 

8See USCIS Memorandum, Approval of Petitions 

and Applications after the Death of the Qualifying 

Relative under New Section 204(l) of the 

Immigration and Nationality Act (Dec. 16, 2010), 

available at http://www.uscis.gov/USCIS/Laws/ 

Memoranda/2011/January/Death-of-QualifyingRelative.pdf; see also Matter of Cervantes-Gonzalez, 

22 I. & N. Dec. 560, 565 (BIA 1999), aff’d, 244 F.3d 

1001 (9th Cir. 2001). 

waiver but can proceed through the 

current waiver process. 

3. Alien Must Seek a Visa Based on the 

Approved Immediate Relative Petition 

USCIS proposes to require an alien 

seeking a provisional unlawful presence 

waiver to submit evidence 

demonstrating that he or she has 

initiated the immigrant visa process 

with the DOS NVC based upon the 

approved immediate relative petition, 

by submitting evidence that he or she 

has paid the immigrant visa processing 

fee required by DOS. Such evidence is 

required to ensure that the alien is 

pursuing consular processing, as the 

provisional unlawful presence waiver 

would be granted to facilitate the 

immigrant visa interview. The alien, 

however, is not eligible to apply under 

the proposed process if he or she has 

already been scheduled for an 

immigrant visa interview at a DOS 

Embassy or consulate abroad. See 

proposed 8 CFR 212.7(e)(2) and (3). 

USCIS analyzed whether cases already 

scheduled for visa interview should be 

included in the provisional unlawful 

presence waiver process. USCIS 

determined that resource constraints 

and timing issues warranted exclusion 

of these cases from participation. 

Therefore, any immigrant visa 

applicants who have already had their 

appointments scheduled, whether they 

actually appeared for the interview or 

not, should proceed with the immigrant 

visa process and not delay. 

4. Alien Must Be Inadmissible Based 

Solely on Unlawful Presence at the 

Time of the Immigrant Visa Interview 

With DOS 

USCIS proposes to further limit this 

provisional unlawful presence waiver 

process to immediate relatives whose 

only ground of inadmissibility is, or 

would be upon departure from the 

United States, the 3-year or 10-year 

unlawful presence bars under INA 

section 212(a)(9)(B)(i)(I) or (II), 8 U.S.C. 

1182(a)(9)(B)(i)(I) or (II) at the time of 

the consular interview. See proposed 

8 CFR 212.7(e)(2) and (e)(3)(i). USCIS 

proposes that if, when processing the 

provisional waiver application, USCIS 

has reason to believe that an alien may 

be inadmissible on a ground of 

inadmissibility other than unlawful 

presence under INA section 

212(a)(9)(B)(i) at the time of the visa 

interview with DOS, USCIS will deny 

the provisional unlawful presence 

waiver application. Such a denial of a 

provisional unlawful presence waiver 

request would not be appealable; 

however, it would not preclude the 

alien from filing a waiver application 

under the current waiver process 

following the consular interview. See 

proposed 8 CFR 212.2(e)(7) and (e)(10). 

Furthermore, USCIS’s determination 

that it does not have reason to believe 

that the individual may be inadmissible 

on grounds other than the 3-year or 10- 

year unlawful presence bar at the time 

of the immigrant visa interview does not 

preclude DOS from making its own 

admissibility determination and its own 

finding that the individual may be 

ineligible for the immigrant visa despite 

the approved provisional unlawful 

presence waiver. Jurisdiction for making 

final ineligibility findings in relation to 

the consular immigrant visa process lies 

with DOS, not with USCIS. Similarly, 

neither USCIS’s approval of the 

provisional unlawful presence waiver 

application nor DOS’s visa eligibility 

determination and subsequent 

immigrant visa issuance guarantees that 

an alien will be admitted to the United 

States by U.S. Customs and Border 

Protection (CBP) if CBP determines that 

the individual is inadmissible on 

grounds other than those that were 

validly waived. See INA sections 204(e), 

221(h); 8 U.S.C. 1154(e), 1201(h). 

5. Alien Must Meet the Requirements 

for the Unlawful Presence Waiver 

An alien must meet all statutory 

requirements for the unlawful presence 

waiver, as outlined in INA section 

212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v), 

including the limitation that the alien 

must show extreme hardship to a U.S. 

citizen spouse or parent.7 The alien also 

must establish that he or she warrants 

a favorable exercise of discretion. 

Under current policy, USCIS 

considers the death of a U.S. citizen 

petitioner to be the functional 

equivalent of extreme hardship for 

purposes of a waiver sought by an 

applicant who is a surviving immediate 

relative of a deceased U.S. citizen and 

who meets the requirements of INA 

section 204(l), 8 U.S.C. 1154(l), if the 

extreme hardship being claimed by the 

surviving beneficiary would have been 

on account of extreme hardship to the 

U.S. citizen petitioner if he or she had 

survived. Note, however, that the 

finding of extreme hardship merely 

permits, and never compels, a favorable 

exercise of discretion.8

Any alien who can only qualify for a 

waiver based on extreme hardship to an 

LPR spouse or parent can still apply for 

a waiver under the existing process after 

an immigrant visa interview at a U.S. 

Embassy or consulate abroad. 

6. Alien Must Be Age 17 or Older at the 

Time of Filing a Provisional Unlawful 

Presence Waiver 

USCIS proposes to accept provisional 

unlawful presence waiver applications 

for immediate relatives 17 years of age 

and older but reject applications filed by 

those under the age of 17. Unlawful 

presence does not begin to accrue until 

an alien who is unlawfully present in 

the United States reaches the age of 18. 

Accepting waiver applications from an 

alien who is 17 years of age or older 

would prevent an alien’s prolonged 

separation from his or her U.S. citizen 

relative in the event that the alien’s 

immigrant visa interview is scheduled 

after his or her 18th birthday. 

D. Aliens Ineligible for a Provisional 

Unlawful Presence Waiver 

Under the proposed rule, immediate 

relatives of U.S. citizens would not be 

eligible for a provisional unlawful 

presence waiver under proposed 8 CFR 

212.7(e) if: 

i. They are outside the United States; 

ii. They are not the beneficiaries of 

either an approved Petition for Alien 

Relative, Form I–130, classifying them 

as an immediate relative, or an 

approved Petition for Amerasian, 

Widow(er), and Special Immigrant, 

Form I–360, classifying them as an 

immediate relative; 

iii. They are not actively pursuing 

consular processing of an immigrant 

visa based on the approved immediate 

relative petition and have not paid the 

immigrant visa processing fee to DOS; 

iv. They have been scheduled for an 

immigrant visa interview at the time 

they submit an application for a 

provisional unlawful presence waiver; 

v. They fail to comply with the 

biometric capture requirements; 

vi. They are under the age of 17 years 

when the provisional unlawful presence 

waiver application is filed; 

vii. They are in removal proceedings 

that have not been terminated or 

dismissed; 

viii. They have not had the charging 

document (Notice to Appear) to initiate 

removal proceedings cancelled; 

ix. They are in removal proceedings 

that have been administratively closed 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS5
19910 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 

9The INA provides for the collection of fees 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 applicants. INA 

section 286(m), 8 U.S.C. 1356(m). The INA provides 

that the fees may recover administrative costs as 

well. For further information about USCIS fees, see 

U.S. Citizenship and Immigration Services Fee 

Schedule, 75 FR 58962 (Sept. 24, 2010) and 75 FR 

33445 (June 11, 2010). 

but not subsequently reopened for the 

issuance of a final voluntary departure 

order; 

x. They are subject to a final order of 

removal issued under section 235, 238 

or 240 of the Act or any other provision 

of law (including an in absentia removal 

order under section 240(b)(5) of the 

Act); 

xi. They have a pending application 

with USCIS for lawful permanent 

resident status in the United States; 

xii. USCIS has reason to believe that 

the alien may be subject to other 

grounds of inadmissibility at the time of 

immigrant visa interview with DOS; 

xiii. They have not established to 

USCIS’s satisfaction that denial of the 

waiver would result in extreme 

hardship to the alien’s U.S. citizen 

spouse or parent or that a favorable 

exercise of discretion is merited; or 

xiv. The alien has previously filed a 

provisional unlawful presence waiver 

application. 

While individuals with cases pending 

with the NVC who have paid the 

immigrant visa processing fee to DOS 

and not yet been scheduled for a 

consular visa interview would be 

eligible to apply for the provisional 

unlawful presence waiver, applicants 

who have had their immigrant visa 

interviews scheduled will not be 

allowed to participate in the provisional 

waiver process. The inclusion of these 

cases was analyzed but resource 

constraints and the close coordination 

with DOS on the timeframes for 

interview scheduling once the 

provisional waiver application has been 

filed, led to the decision to exclude the 

cases from participation. NVC and 

USCIS intend that both document 

collection for the immigrant visa 

interview and waiver adjudication 

should occur as parallel processes that 

will conclude at the same time, thus 

allowing NVC to schedule the 

immigrant visa interview and transfer 

the case to post with no additional 

delay. Therefore, any immigrant visa 

applicant who has already had his or 

her appointment scheduled, whether 

they actually appeared for the interview 

or not, should proceed with the 

immigrant visa process and not delay. 

DHS is considering development of a 

process to permit filing of provisional 

unlawful presence waiver applications 

by certain individuals who: (a) Are in 

removal proceedings but have had such 

proceedings administratively closed and 

were subsequently granted voluntary 

departure, (b) were in removal 

proceedings that have been terminated 

or dismissed or (c) have had the 

charging document (Notice To Appear) 

to initiate removal proceedings 

cancelled. 

Aliens who cannot participate in the 

proposed provisional unlawful presence 

waiver process may still pursue a 

waiver through the current waiver 

process. 

E. Filing, Adjudication, and Decisions 

1. Filing the Provisional Unlawful 

Presence Waiver Application 

DHS proposes to require an alien 

seeking a provisional unlawful presence 

waiver to file an application on the form 

designated by USCIS, with the fees 

prescribed in proposed 8 CFR 

103.7(b)(1) and (b)(1)(i)(C), and in 

accordance with the form instructions. 

See proposed 8 CFR 212.7(a)(1) and 

(e)(4). For this new process, USCIS has 

created and proposes to use a new 

Application for Provisional Unlawful 

Presence Waiver, Form I–601A. The 

filing fee for the Form I–601A will be 

the same as Form I–601, which is 

currently $585, since the adjudication 

time required for both forms is the 

same.9 See proposed 8 CFR 

103.7(b)(1)(i)(AA). USCIS will not 

accept fee waiver requests for the Form 

I–601A. The biometrics fee is currently 

$85 and also cannot be waived. See 

proposed 8 CFR 103.7(b)(1)(i)(C) and 8 

CFR 103.17. The new Form I–601A will 

minimize the potential for confusion 

between the provisional waiver process 

and the current Form I–601 waiver 

process. 

Additionally, applicants for a 

provisional unlawful presence waiver 

would be required to undergo 

biometrics collection to ensure the 

integrity of the process and assist USCIS 

in determining if the applicants have 

other potential grounds of 

inadmissibility. See proposed 8 CFR 

212.7(e)(5). DHS would deny the 

provisional unlawful presence waiver 

application based on abandonment of 

the application if the applicant fails to 

provide biometrics or fails to appear at 

the biometrics appointment. See 

proposed 8 CFR 103.2(b)(13) and 

proposed 8 CFR 212.7(e)(5). 

2. Adjudication of the Provisional 

Unlawful Presence Waiver Application 

Once a provisional unlawful presence 

waiver application is properly filed, 

USCIS would adjudicate the provisional 

unlawful presence waiver. The alien 

still would have the burden to establish 

that he or she is eligible for the waiver 

and meets the requirements outlined in 

INA section 212(a)(9)(B)(v), with the 

additional limitation that the alien must 

establish extreme hardship only to his 

or her U.S. citizen spouse or parent. See 

proposed 8 CFR 212.7(e)(2) and 8 CFR 

212.7(e)(7). The alien also would have 

to demonstrate that he or she warrants 

a favorable exercise of the Secretary’s 

discretion. See INA section 

212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v); 

proposed 8 CFR 212.7(e)(6). If the alien 

meets all eligibility requirements, and a 

favorable exercise of discretion is 

warranted, USCIS would approve the 

provisional unlawful presence waiver. 

See 8 CFR 212.7(e)(2). 

3. Requests for Evidence 

DHS proposes to issue RFEs in 

accordance with USCIS regulations at 

8 CFR 103.2 and applicable USCIS 

policy. USCIS will not issue Notices of 

Intent to Deny (NOIDs) to provisional 

unlawful presence waiver applicants. 

DHS proposes to limit RFEs solely to the 

issues of whether the alien has 

established extreme hardship and/or 

merits a favorable exercise of discretion. 

USCIS is committed to issuing RFEs to 

address applications it receives that are 

missing critical information needed to 

demonstrate extreme hardship. USCIS 

also has determined that issuing NOIDS 

could significantly interfere with the 

operational agreements between USCIS 

and DOS and could substantially delay 

immigrant visa processing. If an alien 

fails to respond to an RFE within the 

stated time frame, USCIS may deny the 

provisional unlawful presence waiver 

application as abandoned. See 8 CFR 

103.2(b)(13)(i). 

4. Denials 

USCIS would deny a provisional 

unlawful presence waiver application 

without issuing an RFE when the alien 

fails to meet any of the specified 

eligibility criteria described in proposed 

8 CFR 212.7(e). An alien whose 

provisional unlawful presence waiver 

application is denied may seek a waiver 

after the DOS consular officer has made 

an admissibility determination at the 

immigrant visa interview at a U.S. 

Embassy or consulate abroad. See 

proposed 8 CFR 212.7(e)(10). An alien 

may not seek multiple provisional 

unlawful presence waivers. See 

proposed 8 CFR 212.7(e)(3). 


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10 INA section 203(g) provides in relevant part: 

‘‘The Secretary of State shall terminate the 

registration of any alien who fails to apply for an 

immigrant visa within one year following 

notification to the alien of the availability of such 

visa, but the Secretary shall reinstate the 

registration of any such alien who establishes 

within 2 years following the date of notification of 

the availability of such visa that such failure to 

apply was due to circumstances beyond the alien’s 

control.’’ See also 22 CFR 42.83 (implementing INA 

section 203(g)). 

5. Rejections of Provisional Unlawful 

Presence Waiver Applications 

USCIS also proposes to codify the 

criteria for when an application will be 

rejected and fees returned to the 

applicant. The goal is to reduce the 

likelihood than an alien will 

erroneously file a waiver application 

and further delay his or her immigrant 

visa processing. USCIS would reject a 

request for a provisional unlawful 

presence waiver if the alien: 

A. Fails to pay the required fees for 

the waiver application or biometrics 

collection or pay the correct fee; 

B. Fails to sign the 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 years. 

E. Does not include evidence of an 

approved petition that classifies the 

alien as an immediate relative of a U.S. 

citizen; 

F. Does not include a copy of the 

immigrant visa fee receipt evidencing 

that the alien has paid the immigrant 

visa processing fee to DOS; 

G. Has indicated on the provisional 

unlawful presence waiver application 

that a visa interview has been scheduled 

with DOS; or 

H. Has not indicated on the 

provisional unlawful presence waiver 

application that the qualifying relative 

is a U.S. citizen spouse or parent. 

See proposed 8 CFR 212.7(e)(4)(ii). An 

alien whose application was rejected is 

not prohibited from filing a new 

provisional unlawful presence waiver 

application according to the procedures 

outlined in proposed 8 CFR 212.7(e). 

6. Withdrawal of the Request for a 

Provisional Unlawful Presence Waiver 

An alien may withdraw a provisional 

unlawful presence waiver application at 

any time prior to a final decision. 

Subsequent to the withdrawal, the case 

will be closed, and the alien and his or 

her representative (if applicable) will be 

notified. DOS/NVC also will be notified 

of the action. See proposed 8 CFR 

212.7(e)(8) and (9). An alien who 

withdraws an application for a 

provisional unlawful presence waiver 

will not be permitted to later file a new 

application, and the filing fees will not 

be refunded. 

F. Motions To Reopen or Reconsider or 

Appeals of Denied Provisional Unlawful 

Presence Waiver Applications 

Aliens seeking a provisional unlawful 

presence waiver would not be able to 

file a motion to reopen or motion to 

reconsider or to appeal a denial of a 

request for a provisional waiver. See 

proposed 8 CFR 212.7(e)(10). Rather, 

such aliens could apply for a waiver 

through the current consular immigrant 

visa process. See id. 

USCIS proposes to retain its authority 

and discretion to reopen or reconsider a 

decision on its own motion. See 

proposed 8 CFR 212.7(a)(4)(v) and 8 

CFR 212.7(e)(12). For the provisional 

unlawful presence waiver process, 

USCIS may reopen the decision and 

deny or approve the provisional 

unlawful presence waiver at any time if 

USCIS finds that the decision was 

issued in error or approval is no longer 

warranted. USCIS would follow the 

requirements of 8 CFR 103.5(a)(5) before 

reopening a case and denying a waiver 

application. A USCIS decision to deny 

a provisional unlawful presence waiver 

is not subject to administrative appeal. 

USCIS’s decision is discretionary and is 

not a final agency action subject to 

judicial review, since USCIS’s decision 

is without prejudice to the alien’s ability 

to seek a waiver from USCIS through the 

consular immigrant visa process. See 

proposed 8 CFR 212.7(a)(3) and (e)(8) 

and (e)(10). 

G. Terms and Conditions of the 

Provisional Unlawful Presence Waiver 

DHS proposes that a provisional 

unlawful presence waiver will not 

become a final waiver unless and until 

the alien departs from the United States, 

he or she presents himself or herself for 

the immigrant visa interview at a U.S. 

Embassy or consulate abroad, and the 

DOS consular officer determines that, in 

light of the approval of the provisional 

waiver and other evidence of record, the 

alien is otherwise admissible to the 

United States and eligible for an 

immigrant visa. See proposed 8 CFR 

212.7(e)(11). Once DOS determines that 

the alien is eligible for an immigrant 

visa, the provisional unlawful presence 

waiver will become final and fully 

effective, subject to 8 CFR 212.7(a)(4). 

See proposed 8 CFR 212.7(a)(4) and 8 

CFR 212.7(e)(11) and (e)(12). 

A provisional unlawful presence 

waiver would only be effective for 

immigrant visa issuance based on the 

approved immediate relative petition. If 

the consular officer determines that the 

alien is inadmissible on other grounds, 

the provisional unlawful presence 

waiver is automatically revoked and the 

alien would be required to file a new 

waiver application that covers all 

applicable grounds of inadmissibility, 

including the 3-year or 10-year unlawful 

presence bar. See proposed 8 CFR 

212.7(e)(13). 

DHS also proposes to limit the grant 

of a provisional unlawful presence 

waiver to the time period of the 

immigrant visa registration of an alien 

in accordance with INA section 203(g), 

8 U.S.C. 1153(g).10 DOS may terminate 

an alien’s immigrant visa registration if 

the alien fails to apply for an immigrant 

visa within one year following 

notification to the alien of the 

availability of such visa. DOS, however, 

may reinstate the alien’s immigrant visa 

registration if the alien establishes that 

within two years following the date of 

notification of the availability of such 

visa that such failure to apply was due 

to circumstances beyond his or her 

control. See INA section 203(g), 8 U.S.C. 

1153(g); 22 CFR 42.83. Thus, the grant 

of the provisional unlawful presence 

waiver is valid as long as the alien’s 

immigrant visa registration has not been 

terminated by DOS pursuant to INA 

203(g) and the underlying immigrant 

visa petition has not been revoked, 

withdrawn, or otherwise terminated. 

Furthermore, the validity of the 

provisional unlawful presence waiver 

also is dependent on the continued 

validity of the approved immediate 

relative petition. See proposed 8 CFR 

212.7(a)(4), (e)(11), (e)(12) and (e)(13). If 

the approval of the visa petition or selfpetition is revoked for any reason, the 

provisional waiver would be 

automatically revoked, unless it is 

otherwise reinstated for humanitarian 

reasons or converted to a widow/ 

widower petition. Under proposed 8 

CFR 212.7(a)(4) and 8 CFR (e)(13), the 

provisional unlawful presence waiver 

also would be revoked automatically 

when: An immigrant visa ineligibility 

cannot be overcome; the approved 

immigrant visa application is 

withdrawn, or otherwise rendered 

invalid at any time; or when DOS 

terminates the registration of the 

immigrant visa application pursuant to 

INA section 203(g), 8 U.S.C. 1153(g), 

and DOS has not reinstated the 

registration in accordance with section 

203(g), 8 U.S.C. 1153(g). Termination of 

registration under INA section 203(g), 8 

U.S.C. 1153(g), also automatically 

revokes the approval of the underlying 

immediate relative petition under 8 CFR 

205.1(a)(1). 

Finally, a provisional unlawful 

presence waiver grant is revoked 

automatically if the alien, at any time, 


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reenters or attempts to reenter the 

United States without admission or 

parole. See proposed 8 CFR 212.7(e)(13). 

H. Validity of the Provisional Unlawful 

Presence Waiver 

Once the provisional waiver takes full 

effect in accordance with this rule, the 

alien would no longer be inadmissible 

to the United States under INA section 

212(a)(9)(B) based on previouslyaccrued unlawful presence. The alien’s 

period of unlawful presence in the 

United States upon which the waiver is 

based would be permanently waived, 

other than for conditional permanent 

residents whose status is terminated and 

certain K nonimmigrants, as described 

below. See proposed 8 CFR 212.7(a)(4) 

and (e)(12). The consular officer could 

issue the immigrant visa since the alien 

is no longer inadmissible. 

I. Limitations of a Provisional Unlawful 

Presence Waiver 

The application for, or grant of, a 

provisional unlawful presence waiver 

under this proposed rule does not create 

a lawful immigration status or extend 

any authorized period of stay to the 

alien while the provisional waiver 

application is pending review with 

USCIS or while the alien is waiting for 

his or her immigrant visa interview. If 

an alien is present in the United States 

without lawful immigration status, he or 

she remains subject to removal, as 

provided by law. See INA section 240, 

8 U.S.C. 1229a. A pending or approved 

application for a provisional unlawful 

presence waiver also will not toll the 

accrual of unlawful presence, but a 

grant of the provisional unlawful 

presence waiver will cover 

inadmissibility under both the 3-year 

and the 10-year bars under INA section 

212(a)(9)(B)(i). A pending or approved 

application for a provisional unlawful 

presence waiver will not protect the 

alien from any other grounds of 

inadmissibility that he or she may be 

subject to in the future, such as the bar 

for unlawful reentry after previous 

immigration violation in the United 

States, under INA section 212(a)(9)(C), 8 

U.S.C. 1182(a)(9)(C). A pending or 

approved provisional unlawful presence 

waiver does not provide an individual 

with the right to obtain advance parole, 

the right to enter the United States, or 

the right to obtain and be granted any 

other immigration benefit. Finally, a 

pending or approved provisional 

unlawful presence waiver does not 

guarantee issuance of an immigrant visa 

or admission to the United States based 

upon the immigrant visa. 

J. Clarification of 8 CFR 212.7(a)(1) and 

(a)(4) 

DHS also proposes two clarifying 

amendments to 8 CFR 212.7(a)(1) and 

(a)(4). See proposed 8 CFR 212.7(a)(1) 

and (a)(4). The first clarifying 

amendment is necessary because of an 

amendment to 8 CFR 212.7(a)(1) that 

DHS included as part of the final rule 

published in the Federal Register on 

August 29, 2011, at 76 FR 53764 

(August 29, 2011 final rule). The August 

29, 2011 final rule provides the 

regulatory framework that will enable 

USCIS to migrate from a paper filebased, nonintegrated systems 

environment to an electronic customerfocused, centralized case management 

environment for benefits processing. 

Before the August 29, 2011 final rule 

entered into effect on November 28, 

2011, 8 CFR 212.7(a)(1) read: 

Form I–601 must be filed in accordance 

with the instructions on the form. When filed 

at a consular office, Form I–601 shall be 

forwarded to USCIS for a decision upon 

conclusion that the alien is admissible but for 

the grounds for which a waiver is sought. 

The August 29, 2011 final rule revised 

the provision, effective November 28, 

2011, so that it now reads: 

Any alien who is inadmissible under sections 

212(g), (h), or (i) of the Act who is eligible 

for a waiver of such inadmissibility may file 

on the form designated by USCIS, with the 

fee prescribed in 8 CFR 103.7(b)(1) and in 

accordance with the form instructions. When 

filed at the consular section of an embassy or 

consulate, the Department of State will 

forward the application to USCIS for a 

decision after the consular official concludes 

that the alien is otherwise admissible. 

8 CFR 212.7(a)(1), as amended at 76 FR 

53787 (emphasis added). Deletion of the 

specific reference to the Form I–601 is 

consistent with the purpose of the 

August 29, 2011 final rule by facilitating 

the move to electronic filing and case 

management. The reference to aliens 

‘‘inadmissible under sections 212(g), (h), 

or (i) of the Act,’’ however, is an error. 

The cited provisions are not grounds of 

inadmissibility but are the statutory 

bases for some of the waivers of 

inadmissibility that an alien may seek 

under 8 CFR 212.7. For example, an 

alien who is inadmissible based on the 

3-year and 10-year unlawful presence 

bar under INA section 212(a)(9)(B)(i), 

8 U.S.C. 1182(a)(9)(B)(i), uses the same 

application process to seek a waiver of 

inadmissibility for unlawful presence 

under INA section 212(a)(9)(B)(v), 8 

U.S.C. 1182(a)(9)(B)(v). Therefore, the 

reference to INA section 212(g), (h) and 

(i) is removed and replaced with the 

more general reference ‘‘who is 

inadmissible under any provision of 

section 212(a) of the Act.’’ In addition, 

the second sentence in 8 CFR 212.7 

about ‘‘forwarding’’ of an application 

from DOS to USCIS is not necessary. 

The second sentence is an internal case 

management provision that does not 

directly affect how an applicant seeks 

the benefit. 

For these reasons, DHS proposes to 

revise 8 CFR 212.7(a)(1) so that its text 

more fully aligns with the purpose of 

the August 29, 2011 final rule. Rather 

than referring only to three types of 

waivers that an alien may seek, the 

amended provision would apply to any 

waiver of inadmissibility that an alien 

currently seeks by filing the Form I–601 

or any future form that may be 

designated by USCIS for waivers of 

grounds of inadmissibility under these 

provisions. The proposed amendment 

would remove what is now the second 

sentence in current 8 CFR 212.7(a)(1). 

Finally, the proposed amendments 

would clarify who can apply for the 

waivers covered under 8 CFR 

212.7(a)(1). 

DHS also proposes to amend 8 CFR 

212.7(a)(4), concerning the validity of a 

waiver of inadmissibility. Two general 

principles are that a waiver of 

inadmissibility applies only to the 

specific grounds for which a waiver is 

sought, and that, except as described in 

this rule with respect to provisional 

unlawful presence waivers, the waiver, 

once granted, is valid indefinitely. DHS 

does not intend to alter these principles, 

and the proposed amendment includes 

them. 

One exception to these general 

principles relates to aliens who obtain a 

waiver of inadmissibility in conjunction 

with an application for lawful 

permanent resident status and who are 

admitted as LPRs on a conditional basis 

under section 216 or 216A of the Act, 

8 U.S.C. 1186 or 1186A. For any such 

aliens, termination of conditional LPR 

status would also terminate the validity 

of the waiver. The waiver would be 

restored if the alien challenges the 

termination in removal proceedings and 

the removal proceedings result in the 

restoration of the alien’s status as an 

LPR. See current 8 CFR 212.7(a)(4) and 

proposed 8 CFR 212.7(a)(4). 

Another exception is necessarily 

inferred from the statute. Sections 

101(a)(15)(K)(i) and 214(d) of the Act, 8 

U.S.C. 1101(a)(15)(K)(i) and 1184(d), 

permit the nonimmigrant admission of 

the alien fiance ́(e) of a citizen of the 

United States. Although technically 

issued nonimmigrant visas and 

admitted as nonimmigrants, the 

fiance ́(e), and any accompanying or 

following-to-join children, are treated 

like immigrants who are immediate 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS5
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relatives. See Matter of Le, 25 I&N Dec. 

541 (BIA 2011), and Matter of Sesay, 

25 I&N Dec. 431 (BIA 2011). DOS 

regulations require such aliens to 

qualify for immigrant visas. 22 CFR 

41.81(d). Since the publication of a final 

rule on August 10, 1988, DHS has 

allowed nonimmigrant fiance ́(e)s and 

their children to seek inadmissibility 

waivers as immigrants. See Marriage 

Fraud Amendments Regulations, 53 FR 

30011 (Aug. 10, 1988). This practice is 

consistent with the principle, 

recognized in Matter of Le and Matter of 

Sesay, that the fiance ́(e) and 

accompanying children are similar in 

important respects to immigrants who 

are immediate relatives. The statutory 

provisions, including INA sections 

212(a)(9)(B)(v), (g), (h) and (i), 8 U.S.C. 

1182(a)(9)(B)(v), (g), (h), and (i), 

however, generally make the waivers 

available only to ‘‘spouses’’ of citizens 

and LPRs. The fiance ́(e) is not yet a 

spouse. For this reason, a waiver 

granted to a fiance ́(e), and any 

accompanying or following-to-join 

children, can only be fully effective 

once the intended marriage takes place. 

DHS proposes to amend 8 CFR 

212.7(a)(4) to make this necessary 

corollary explicit. 

V. Public Input 

DHS invites comments from all 

interested parties, including advocacy 

groups, nongovernmental organizations, 

community-based organizations, and 

legal representatives who specialize in 

immigration law on any and all aspects 

of this proposed rule. DHS is 

specifically seeking comments on: 

A. The proposed waiver process; 

B. Proposed filing procedures; and 

C. Any alternatives to the proposed waiver 

process that may be more effective than the 

current USCIS overseas waiver process. 

VI. Statutory and Regulatory 

Requirements 

A. Unfunded Mandates Reform Act of 

1995 

This proposed rule will not result in 

the expenditure by State, local and 

tribal governments, in the aggregate, or 

by the private sector, of $100 million or 

more in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. 

B. Small Business Regulatory 

Enforcement Fairness Act of 1996 

This proposed rule is not a major rule 

as defined by section 804 of the Small 

Business Regulatory Enforcement Act of 

1996. This rule will not result in an 

annual effect on the economy of $100 

million or more; a major increase in 

costs or prices; or significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

on the ability of United States-based 

companies to compete with foreignbased companies in domestic and 

export markets. 

C. Executive Orders 12866 (Regulatory 

Planning and Review) and 13563 

(Improving Regulation and Regulatory 

Review) 

1. Executive Orders 12866 and 13563 

direct agencies to assess the costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. This rule is 

a ‘‘significant regulatory action,’’ 

although not an economically 

significant regulatory action, under 

section 3(f) of Executive Order 12866. 

Accordingly, the Office of Management 

and Budget has reviewed this 

regulation. This effort is consistent with 

Executive Order 13563’s call for 

agencies to ‘‘consider how best to 

promote retrospective analysis of rules 

that may be outmoded, ineffective, 

insufficient, or excessively burdensome, 

and to modify, streamline, expand, or 

repeal them in accordance with what 

has been learned.’’ 

Summary 

The proposed rule would allow 

certain immediate relatives of U.S. 

citizens who are physically present in 

the United States to apply for a 

provisional 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 would be available to 

aliens whose only ground of 

inadmissibility is, or would be, the 

3-year or 10-year unlawful presence bar. 

This proposed rule is expected to 

result in a reduction in the time that 

U.S. citizens are separated from their 

alien immediate relatives, thus reducing 

the financial and emotional hardship for 

these families. In addition, the Federal 

Government would achieve increased 

efficiencies in processing immediate 

relative visas for individuals subject to 

the inadmissibility bar. 

DHS estimates the discounted total 

ten-year cost of this rule would range 

from approximately $100.6 million to 

approximately $303.8 million at a seven 

percent discount rate. Compared with 

the current waiver process, this rule 

proposes that the provisional waiver 

applicants submit biometric 

information. Included in this cost 

estimate is the cost of collecting 

biometrics, which we estimate will 

range from approximately $28 million to 

approximately $42.5 million at seven 

percent over ten years. In addition, as 

this rule significantly streamlines the 

current process, DHS expects that 

additional applicants will apply for the 

provisional waiver compared to the 

current waiver process. To the extent 

that this rule induces new demand for 

immediate relative visas, additional 

forms such as the 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 $72.6 million to 

approximately $261.3 million 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 to 

this streamlined provisional waiver 

process. USCIS is not aware of any data 

that will allow us to estimate with 

precision the increase in demand due to 

this rule. 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. 

2. Problems Addressed by the Proposed 

Changes 

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 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS5
19914 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 

11 Department of Homeland Security, Office of 

Immigration Statistics, Estimates of the 

Unauthorized Immigrant Population Residing in the 

United States: January 2010. Available at: http://

www.dhs.gov/xlibrary/assets/statistics/

publications/ois_ill_pe_2010.pdf. 

12Pew Hispanic Trust, Unauthorized Immigrants: 

Length of Residency, Patterns of Parenthood, 

December 2011, pg. 6. Available at http://www.

pewhispanic.org/files/2011/12/UnauthorizedCharacteristics.pdf. 

13The proposed rule applies only to alien 

immediate relatives of U.S. citizens, not to alien 

relatives of lawful permanent residents. 

14 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. 

15Fees quoted are as of December 2011. 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=b1ae408b1c4b3210VgnVCM100000b92c

a60aRCRD&vgnextchannel=b1ae408b1c4b3210Vgn

VCM100000b92ca60aRCRD. 

may be separated from their immediate 

relative family members for prolonged 

periods resulting in financial, 

emotional, and humanitarian hardships. 

Family unification is a foundational 

principle of immigration law. 

The proposed rule would permit 

certain immediate relatives to apply for 

a provisional unlawful presence waiver 

prior to departing the United States. 

USCIS would adjudicate the provisional 

unlawful presence waiver and, if 

approved, would provide notification to 

DOS. Thus, the provisionally approved 

waiver would be 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. This 

proposed process change would 

significantly reduce the amount of time 

U.S. citizens are separated from their 

immediate alien relatives. In addition, 

the proposed changes would streamline 

the immigrant visa waiver process, 

thereby increasing efficiencies. 

3. The Population Affected by the 

Proposed 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 

would be eligible to apply under the 

proposed waiver process. Immediate 

relatives of U.S. citizens who are able to 

adjust 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 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 to immigrate to the 

United States. Since 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. 

DHS does not maintain data on the 

number of immediate relatives present 

in the United States who would qualify 

under the proposed 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 10.8 

million as of January 2010.11 While all 

persons affected by the proposed rule 

are within the estimated population of 

10.8 million, it is estimated that only a 

portion are immediate relatives of U.S. 

citizens who meet the criteria required 

for the new process. 

Other estimates are equally 

inconclusive of 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 12 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 

immediate relatives of LPRs rather than 

U.S. citizens.13 Nor do these data 

indicate how many persons within these 

families are under the age of 18 14 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 proposed rule. 

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 proposed rule. 

4. Demand 

DHS expects that the proposed rule, 

once finalized and effective, 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 proposed process would allow an 

immediate relative who meets the 

eligibility criteria of this proposed rule 

to apply for a provisional unlawful 

presence waiver and receive a decision 

on that application before departing the 

United States for a consular interview. 

The streamlined procedure of this 

proposed rule 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: 15

1. Petition for Alien Relative, Form I–130, 

to establish a qualifying relationship to a U.S. 

citizen; fee cost = $420.00. 

2. Application for Waiver of Grounds of 

Inadmissibility, Form I–601, to obtain a 

waiver of inadmissibility for unlawful 

presence; fee cost = $585.00. 


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16 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 and 

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). 

17 Id. Ineligibility Findings/Ineligibility Overcome 

includes immediate relatives who are not affected 

by the proposed 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. 

18The 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. 

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 such 

other documentation; cost = variable. 

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 = variable. 

5. Immigrant visa processing fees paid to: 

(a) The Department of State ($330), processed 

on the basis of a USCIS-approved I–130 

petition; and (b) USCIS ($165). Total fee cost 

= $495.00. 

6. An Affidavit of Support Under Section 

213A of the Act, Form I–864; fee cost = 

$88.00. 

7. Immigrant visa background and security 

check surcharge per person applying for any 

immigrant visa category; fee cost = $74.00. 

8. Other forms, affidavits, etc. as required 

for individual applications; cost = variable. 

The costs listed above are not new to 

this proposed rule; they are required 

under the current process. 

Under the proposed process, aliens 

would be required to submit biometrics 

after filing the provisional unlawful 

presence waiver application, along with 

the corresponding fee (currently 

$85.00). This biometric fee would be in 

addition to the visa security fee required 

by DOS for the immigrant visa 

application. The proposed requirement 

to submit biometrics, with the 

associated fee and travel costs, would be 

a small portion of the total costs of the 

visa application process. 

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 

a preliminary 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 below may 

understate what would actually occur if 

this rule becomes effective. 

The current level of demand, shown 

in Table 1, 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 1—HISTORICAL IMMIGRATION DATA—FISCAL YEARS 2001 THROUGH 2010 

Fiscal year 

Petitions for 

alien relative, 

Form I–130 

Immediate relative visas 

issued 

Ineligibility 

finding 16

Ineligibility 

overcome 17

2001 ................................................................................................................. 18 903,348 172,087 5,384 6,157 

2002 ................................................................................................................. 392,655 178,142 2,555 3,534 

2003 ................................................................................................................. 362,756 154,760 3,301 1,764 

2004 ................................................................................................................. 367,436 151,724 4,836 2,031 

2005 ................................................................................................................. 370,427 180,432 7,140 2,148 

2006 ................................................................................................................. 437,744 224,187 13,710 3,264 

2007 ................................................................................................................. 546,833 219,323 15,312 7,091 

2008 ................................................................................................................. 172,000 238,848 31,069 16,922 

2009 ................................................................................................................. 188,749 227,517 24,886 12,584 

2010 ................................................................................................................. 217,238 215,947 22,093 18,826 

10 year average ............................................................................................... 395,919 196,297 13,029 7,432 

Ineligibility Findings overcome (10 year average) ........................................... n/a n/a n/a 57.0% 

Note: Sums may not total due to rounding. 

Sources: Petitions for Alien Relative, Form I–130, from USCIS. 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. 

As is evident, each of the data sets in 

Table 1 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 1 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 immediate 

relatives of LPRs who are not affected by 

this rule. DHS has provided the data in 

Table 1 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 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS5
19916 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 

19The 80 percent estimate was calculated by 

USCIS based on data from all I–601s completed by 

overseas offices from August 2010 to October 28, 

2011 and comparing those that listed only unlawful 

presence as an inadmissibility ground. 

20The first year estimate is the 10 year average 

of 395,919 multiplied by the 2.4 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 2010, pg. 1. Subsequent 

years are increased at the same 2.4 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. 

21 Ineligibility Findings are calculated at the 

USCIS estimate of .04849 per 100,000 petitions for 

an alien relative. 

22 DHS Office of Immigration Statistics, Estimates 

of the Unauthorized Immigrant Population Residing 

in the United States: January 2010, pg. 1. The 2.4 

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 (10.8 million). 

23 Id. 

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.19 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 1, 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. 

DHS anticipates that the changes 

proposed would 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, demand 

would be expected to trend upward. 

The DHS preliminary estimates were 

formulated based on general 

assumptions of the level of constraints 

on demand removed by the proposed 

rule. DHS does not know of any 

available data that would enable a 

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 2 indicates the estimate of 

demand under the current process. This 

is the baseline demand expected in the 

absence of the proposed rule. 

TABLE 2—BASELINE ESTIMATES OF GROWTH IN PETITIONS FOR ALIEN RELATIVES AND INELIGIBILITY FINDINGS BASED ON

UNLAWFUL PRESENCE UNDER THE CURRENT PROCESS

Fiscal year 

Petitions for 

alien relative, 

Form I–130 20

Ineligibility 

finding 21

Year 1 .......................................................................................................................................................... 405,510 19,665 

Year 2 .......................................................................................................................................................... 415,340 20,142 

Year 3 .......................................................................................................................................................... 425,410 20,630 

Year 4 .......................................................................................................................................................... 435,720 21,130 

Year 5 .......................................................................................................................................................... 446,280 21,642 

Year 6 .......................................................................................................................................................... 457,100 22,167 

Year 7 .......................................................................................................................................................... 468,180 22,704 

Year 8 .......................................................................................................................................................... 479,530 23,255 

Year 9 .......................................................................................................................................................... 491,150 23,818 

Year 10 ........................................................................................................................................................ 503,050 24,395 

10 Year Totals ...................................................................................................................................... 4,527,570 219,549 

Note: Sums may not total due to rounding. 

Based on the data available on 

requests for waivers under the current 

process, Table 2 forecasts the number of 

findings of inadmissibility due to 

accrual of unlawful presence. The 

results presented in Table 2 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 2 

represents the baseline totals we would 

expect in the absence of the proposed 

waiver process. 

In these calculations, the petitions for 

an alien relative made by U.S. citizens 

are expected to increase annually by the 

2.4 percent compound annual growth 

rate for the undocumented population 

for the previous 10 years based on 

reports by the DHS OIS.22 This is an 

imperfect calculation, as the 

undocumented population has declined 

since its peak in 2007,23 but because of 

the data association problems noted 

previously, DHS used the 10-year (long 

term) compound average growth rate. 

The ineligibility findings in Table 2 

are calculated using the estimate of 

19,200 average annual waivers filed on 

the basis of unlawful presence, which 

equates to 0.04849 ineligibility findings 

for every alien relative petition based on 

the 10-year average. Again, these 

calculations are imperfect since they 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 

3 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 I–601A applications for each 

year under the proposed rule. The 

findings of this range analysis are 

presented in Table 3. 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS5
Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 19917 

24The increased ineligibility findings in Table 4 

are the difference in ineligibility findings from the 

different assumptions of the level of constrained 

demand in Table 3 and the baseline ineligibility 

findings shown in Table 2. 

25U.S. Dep’t of Labor, Wage and Hour Division. 

The minimum wage is as of July 24, 2009. Bureau 

of Labor Statistics, Occupational Employment and 

Wages—May 2010 National Occupational 

Employment and Wage Estimates (May 17, 2011), 

available at: http://www.dol.gov/whd/ 

minimumwage.htm.http://www.bls.gov/ 

news.release/pdf/ocwage.pdf. 

TABLE 3—PRELIMINARY ESTIMATES OF INADMISSIBILITY FINDINGS REQUIRING AN UNLAWFUL PRESENCE WAIVER, FORM I– 

601A ASSOCIATED WITH THE INCREASED DEMAND OF THE PROPOSED RULE

Year 

Expected demand for Form I–601A with current constrained demand of 

25 Percent 50 Percent 75 Percent 90 Percent 

Year 1 ...................................................................................... 24,581 29,498 34,414 37,364 

Year 2 ...................................................................................... 25,177 30,213 35,248 38,269 

Year 3 ...................................................................................... 25,788 30,945 36,103 39,197 

Year 4 ...................................................................................... 26,413 31,695 36,978 40,147 

Year 5 ...................................................................................... 27,053 32,463 37,873 41,120 

Year 6 ...................................................................................... 27,709 33,250 38,792 42,117 

Year 7 ...................................................................................... 28,380 34,056 39,733 43,138 

Year 8 ...................................................................................... 29,068 34,882 40,696 44,184 

Year 9 ...................................................................................... 29,773 35,727 41,682 45,255 

Year 10 .................................................................................... 30,494 36,593 42,692 46,351 

10 Year Totals .................................................................. 274,436 329,324 384,211 417,143 

Note: Numbers may not total due to rounding. 

Table 4 is the expected increase in 

inadmissibility waiver applications due 

to the proposed rule. These estimates 

are obtained by subtracting the baseline 

estimates in Table 2 (without the 

proposed rule) from the preliminary 

estimates under the proposed rule in 

Table 3. 

TABLE 4—PRELIMINARY ESTIMATES OF THE ADDITIONAL INELIGIBILITY FINDINGS REQUIRING AN INADMISSIBILITY WAIVER

UNDER THE PROPOSED RULE

[Induced demand] 24

Year 

Additional ineligibility findings requiring an inadmissibility waiver 

with current constrained demand of 

25 Percent 50 Percent 75 Percent 90 Percent 

Year 1 ...................................................................................... 4,916 9,833 14,749 17,699 

Year 2 ...................................................................................... 5,035 10,071 15,106 18,128 

Year 3 ...................................................................................... 5,158 10,315 15,473 18,567 

Year 4 ...................................................................................... 5,283 10,565 15,848 19,017 

Year 5 ...................................................................................... 5,411 10,821 16,232 19,478 

Year 6 ...................................................................................... 5,542 11,083 16,625 19,950 

Year 7 ...................................................................................... 5,676 11,352 17,028 20,434 

Year 8 ...................................................................................... 5,814 11,627 17,441 20,929 

Year 9 ...................................................................................... 5,955 11,909 17,864 21,436 

Year 10 .................................................................................... 6,099 12,198 18,296 21,956 

10 Year Totals .................................................................. 54,887 109,775 164,662 197,594 

Note: Numbers may not total due to rounding. 

5. Costs 

The proposed rule would require 

provisional waiver applicants to submit 

biometrics to USCIS. This is the only 

new cost applicants would incur under 

the proposed provisional unlawful 

presence waiver process in comparison 

to the current waiver process. The other 

costs of the proposed rule emanate from 

the increase in the demand created by 

the proposed rule. These other costs 

include the fees and preparation costs 

for forms prepared by individuals who 

would not file under the current rule. 

For the biometric collection, the alien 

immediate relative would incur the 

following costs associated with 

submitting biometrics with an 

application for the provisional unlawful 

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 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 proposed 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.25 In order to 

anticipate the full opportunity cost of 

providing biometrics, DHS multiplied 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS5
19918 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 

26U.S. Department of Labor, Bureau of Labor 

Statistics, Economic News Release, Table 1. 

Employer costs per hour worked for employee 

compensation and costs as a percent of total 

compensation: Civilian workers, by major 

occupational and industry group, March 2011, 

viewed online at http://www.bls.gov/news.release/ 

ecec.t01.htm. 27 ($10.44 per hour × 3.5 hours) + ($0.51 per mile 

× 50 miles) = $62.04. 

28The proposed Application for a Provisional 

Waiver of Inadmissibility, Form I–601A, would 

carry the same USCIS fee as Form I–601. 

29The 30.74 rate is calculated by multiplying the 

$21.35 average hourly wage for all occupations May 

2010 (available at http://www.bls.gov/oes/current/ 

oes_nat.htm#00-0000) by the 1.44 fully loaded 

multiplier. 

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.26 In addition, the cost of travel 

includes a mileage charge based on the 

estimated 50 mile round trip at the GSA 

rate of $0.51 per mile, which equals 

$25.50 for each applicant. 

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 $25.50, DHS 

estimates that the cost per provisional 

waiver applicant to be $62.04 for travel 

to and service at the ASC.27 When the 

$85.00 biometric fee is added, the total 

estimated additional cost per 

provisional unlawful presence waiver 

over the current waiver process is 

$147.04. All other fees charged by 

USCIS and DOS to apply for immediate 

relative visas remain the same under the 

current and proposed processes.28

The incremental costs of the biometric 

requirement of the rule are computed as 

the $147.04 cost per provisional 

unlawful presence waiver multiplied by 

the total number of applicants for 

provisional waivers applying after the 

proposed rule is finalized. This 

population is represented in Table 3. 

The incremental costs of the additional 

biometric fee are shown in Table 5. 

TABLE 5—COSTS OF PROPOSED BIOMETRIC REQUIREMENT TO IMMEDIATE RELATIVES FILING A PROVISIONAL WAIVER

APPLICATION

[Table 3 multiplied by $147.04] 

Year 

Additional inadmissibility waiver application fees with current constrained 

demand of 

25 Percent 50 Percent 75 Percent 90 Percent 

Year 1 ...................................................................................... $3,614,451 $4,337,342 $5,060,232 $5,493,966 

Year 2 ...................................................................................... 3,702,070 4,442,484 5,182,898 5,627,146 

Year 3 ...................................................................................... 3,791,827 4,550,193 5,308,558 5,763,577 

Year 4 ...................................................................................... 3,883,724 4,660,468 5,437,213 5,903,260 

Year 5 ...................................................................................... 3,977,849 4,773,418 5,568,988 6,046,330 

Year 6 ...................................................................................... 4,074,291 4,889,149 5,704,007 6,192,922 

Year 7 ...................................................................................... 4,173,051 5,007,661 5,842,271 6,343,037 

Year 8 ...................................................................................... 4,274,217 5,129,061 5,983,904 6,496,811 

Year 9 ...................................................................................... 4,377,791 5,253,349 6,128,907 6,654,242 

Year 10 .................................................................................... 4,483,859 5,380,631 6,277,403 6,815,466 

10 Year Totals Undiscounted ........................................... 40,353,130 48,423,756 56,494,382 61,336,758 

10 Year Totals Discounted at 7.0 percent ....................... 27,967,676 33,561,211 39,154,746 42,510,867 

10 Year Totals Discounted at 3.0 percent ....................... 34,221,714 41,066,057 47,910,400 52,017,006 

Note: Numbers may not total due to rounding. 

In addition to the costs of the 

biometric requirement, DHS expects 

that the proposed 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 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 fees are those 

generated by the additional demand 

shown in Table 4 and are transfers made 

by applicants to USCIS and DOS to 

cover the cost of processing the forms. 

In addition to the fees, there are 

nominal 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. The additional fees and 

preparation costs are shown in Table 6. 

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. 

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 $30.74.29 The times 

to complete the forms are based on the 

USCIS form instructions for the 

individual forms. 

These costs are calculated by the 

formula: 

1. Cost of Form I–130: Preparation cost = 

($30.74 × 1.5 hours) = $46.12; USCIS fee to 

cover processing costs = $420.00. Total 

cost = $466.12. 

2. Cost of Form I–601A: Preparation cost = 

($10.44 × 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 = 

($30.74 × 6.0 hours) = $184.46; DOS fee to 

cover processing costs = $88.00. Total 

cost = $272.46. 

4. Cost of Immigrant Visa Processing Fees: 

DOS fee to cover processing costs = $330; 

USCIS fee to cover processing costs = $165. 

Total cost = $495.00. 

5. Cost of Visa Security fee: Preparation 

cost = DOS fee to cover processing 

costs = $74.00. 

Based on the above, the total costs per 

application: ($466.12 + 600.66 + 272.46 

+ 495.00 + 74.00) = $1,908.24. 


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TABLE 6—COSTS FOR PREPARING AND FILING USCIS AND DOS FORMS

[Table 3 multiplied by $1,908.24] 

Year 

Additional preparation costs and filing fees with current constrained demand of 

25 Percent 50 Percent 75 Percent 90 Percent 

Year 1 ...................................................................................... $9,381,448 $18,762,897 $28,144,345 $33,773,214 

Year 2 ...................................................................................... 9,608,865 19,217,730 28,826,595 34,591,914 

Year 3 ...................................................................................... 9,841,834 19,683,667 29,525,501 35,430,601 

Year 4 ...................................................................................... 10,080,355 20,160,710 30,241,065 36,289,278 

Year 5 ...................................................................................... 10,324,660 20,649,320 30,973,979 37,168,775 

Year 6 ...................................................................................... 10,574,980 21,149,960 31,724,940 38,069,927 

Year 7 ...................................................................................... 10,831,315 21,662,630 32,493,945 38,992,734 

Year 8 ...................................................................................... 11,093,896 22,187,793 33,281,689 39,938,027 

Year 9 ...................................................................................... 11,362,724 22,725,449 34,088,173 40,905,808 

Year 10 .................................................................................... 11,638,030 23,276,060 34,914,091 41,896,909 

10 Year Totals Undiscounted ........................................... 104,738,108 209,476,215 314,214,323 377,057,188 

10 Year Totals Discounted at 7.0 percent ....................... 72,591,182 145,182,365 217,773,547 261,328,257 

10 Year Totals Discounted at 3.0 percent ....................... 88,823,781 177,647,563 266,471,344 319,765,613 

Note:Sums may not total due to rounding. 

The totals in Table 6 are calculated by 

multiplying the induced demand shown 

in Table 4 by the $1,908.24 shown 

above. We acknowledge 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, this rule would allow for such 

existing costs to be reduced and these 

savings represent a benefit of this rule. 

The total cost to applicants is shown 

in Table 7 as the sum of Table 5 and 

Table 6. 

TABLE 7—TOTAL COSTS TO APPLICANTS OF THE PROPOSED RULE

[Table 5 plus Table 6] 

Year 

Estimated total cost current constrained demand of 

25 Percent 50 Percent 75 Percent 90 Percent 

Year 1 ...................................................................................... $12,995,900 $23,100,239 $33,204,577 $39,267,181 

Year 2 ...................................................................................... 13,310,935 23,660,213 34,009,492 40,219,059 

Year 3 ...................................................................................... 13,633,661 24,233,860 34,834,059 41,194,178 

Year 4 ...................................................................................... 13,964,079 24,821,178 35,678,278 42,192,538 

Year 5 ...................................................................................... 14,302,508 25,422,738 36,542,968 43,215,105 

Year 6 ...................................................................................... 14,649,271 26,039,109 37,428,947 44,262,850 

Year 7 ...................................................................................... 15,004,366 26,670,291 38,336,216 45,335,771 

Year 8 ...................................................................................... 15,368,114 27,316,854 39,265,594 46,434,838 

Year 9 ...................................................................................... 15,740,515 27,978,798 40,217,080 47,560,050 

Year 10 .................................................................................... 16,121,890 28,656,692 41,191,494 48,712,375 

10 Year Totals Undiscounted ........................................... 145,091,238 257,899,971 370,708,705 438,393,945 

10 Year Totals Discounted at 7.0 percent ....................... 100,558,858 178,743,575 256,928,293 303,839,123 

10 Year Totals Discounted at 3.0 percent ....................... 123,045,496 218,713,620 314,381,745 371,782,619 

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. 

Consequently, this rule does not impose 

additional costs on the Federal 

Government. 

6. Benefits 

The benefits of the proposed rule are 

the result of streamlining the immigrant 

visa waiver process. The primary 

benefits of the proposed changes are 

qualitative and result from reduced 

separation time for U.S. citizens and 

their alien relatives. In addition to the 

obvious humanitarian and emotional 

benefits derived from family 

reunification, there also would be 

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 proposed 

provisional waiver process. 

As a result of streamlining the 

unlawful presence waiver process, there 

also would be efficiencies realized by 

both USCIS and DOS. The proposed 

process would enable USCIS to process 

and adjudicate the provisional unlawful 

presence waivers domestically. As a 

result, USCIS could 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 


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accommodate filing surges. In addition, 

the proposed process would 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. 

DHS encourages public comment on 

the benefits, both quantitative and 

qualitative, of this proposed rule. 

D. Executive Order 13132 

This proposed rule will not have 

substantial direct effects on the States, 

on the relationship between the 

National Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section 6 of 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 proposed 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 an 

information collection and is covered 

under the PRA. DHS will be submitting 

an information collection request to 

OMB for review and approval under the 

PRA. 

Accordingly, DHS is requesting 

comments on this information 

collection for 60 days until June 1, 2012. 

Comments on this information 

collection should address one or more 

of the following four points: 

(1) Evaluate whether the collection of 

information is necessary for the proper 

performance of the functions of the agency, 

including whether the information will have 

practical utility; 

(2) Evaluate the accuracy of the agency’s 

estimate of the burden of the collection of 

information, including the validity of the 

methodology and assumptions used; 

(3) Enhance the quality, utility, and clarity 

of the information to be collected; and 

(4) Minimize the burden of the collection 

of information on those who are to respond, 

including through the use of appropriate 

automated, electronic, mechanical, or other 

technological collection techniques or other 

forms of information technology, e.g., 

permitting electronic submission of 

responses. 

Overview of information collection: 

a. Type of information collection: 

Revised information collection. 

b. Abstract: This collection will be 

used by individuals who file a request 

for a provisional unlawful presence 

waiver of the inadmissibility grounds 

under INA section 212(a)(9)(B)(v), 8 

U.S.C. 1182(a)(9)(B)(v). Such 

individuals are subject to biometric 

collection in connection with the filing 

of the waiver. 

c. Title of Form/Collection: 

Application for Provisional Unlawful 

Presence Waiver. 

d. Agency form number, if any, and 

the applicable component of the 

Department of Homeland Security 

sponsoring the collection: Form I–601A, 

U.S. Citizenship and Immigration 

Services. 

e. Affected public who will be asked 

or required to respond: Individuals or 

Households: Individuals who are 

immediate relatives of U.S. citizens and 

who are applying from within the 

United States for a waiver of 

inadmissibility under INA section 

212(a)(9)(B)(v) prior to obtaining an 

immigrant visa abroad. 

f. An estimate of the total numbers of 

respondents: 38,277. 

g. Hours per response: 1.5 hours per 

response. 

h. Total Annual Reporting Burden: 

57,416. 

Comments concerning this form can 

be submitted to Sunday Aigbe, Chief, 

Regulatory Products Division, Office of 

the Executive Secretariat, U.S. 

Citizenship and Immigration Services, 

Department of Homeland Security, 20 

Massachusetts Avenue NW., 

Washington, DC 20529–2020. 

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). 

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, DHS proposes to amend 

chapter I of title 8 of the Code of Federal 

Regulations as follows. 

PART 103—POWERS AND DUTIES; 

AVAILABILITY OF RECORDS 

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. 

2. Section 103.7 is amended by 

revising paragraph (b)(1)(i)(AA) to read 

as follows: 

§ 103.7 Fees. 

* * * * * 

(b) * * * 

(1) * * * 

(i) * * * 


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(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. 

* * * * * 

PART 212—DOCUMENTARY 

REQUIREMENTS; NONIMMIGRANTS; 

WAIVERS; ADMISSION OF CERTAIN 

INADMISSIBLE ALIENS; PAROLE 

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. 

4. Section 212.7 is amended by: 

a. Revising paragraphs (a)(1), (a)(3), 

and (a)(4); and 

b. Adding paragraph (e). 

The revisions and addition read as 

follows: 

§ 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). 

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 

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 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 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 

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) In general. 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)(2) 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. 

(2) Eligible aliens. Except as provided 

in paragraph (e)(3) of this section, an 

alien may be eligible to apply for and 

receive a provisional unlawful presence 

waiver for the grounds of 

inadmissibility under section 

212(a)(9)(B)(i)(I) or (II) of the Act if he 

or she: 

(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 

Application Support Center; 

(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 that 

the alien must show extreme hardship 

to his or her U.S. citizen spouse or 

parent. 

(3) Ineligible Aliens. Notwithstanding 

paragraph (e)(2) of this section, an alien 

is ineligible to apply for or receive 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 alien has been scheduled for 

an immigrant visa interview at a U.S. 

Embassy or Consulate abroad at the time 

the application is received by USCIS; 


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(v) The alien is in removal 

proceedings that have not been 

terminated or dismissed; 

(vi) The alien has not had the 

charging document (Notice to Appear) 

to initiate removal proceedings 

cancelled; 

(vii) The alien is in removal 

proceedings that have been 

administratively closed but not 

subsequently reopened for the issuance 

of a final voluntary departure order; 

(viii) The alien is subject to a final 

order of removal issued under section 

235, 238, or 240 of the Act or any other 

provision of law (including an in 

absentia removal order under section 

240(b)(5) of the Act); 

(ix) The alien is subject to 

reinstatement of a prior removal order 

under section 241(a)(5) of the Act; 

(x) The alien has a pending 

application with USCIS for lawful 

permanent resident status; or 

(xi) The alien has previously filed a 

provisional unlawful presence waiver 

application; 

(4) Filing. (i) An application for a 

provisional waiver of the grounds of 

inadmissibility for the unlawful 

presence bars under section 

212(a)(9)(B)(i)(I) or (II) of the Act 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 application 

will be rejected and the fee and package 

returned to the alien if the alien: 

(A) Fails to pay the required fees for 

the waiver application or to pay the 

correct fee; 

(B) Fails to sign the 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 years; 

(E) Does not include evidence of an 

approved petition that classifies the 

alien as an immediate relative of a U.S. 

citizen; 

(F) Does not include a copy of the fee 

receipt evidencing that the alien has 

paid the immigrant visa processing fee 

to DOS; 

(G) Has indicated on the provisional 

unlawful presence waiver application 

that an immigrant visa interview has 

been scheduled with DOS; or 

(H) Has not indicated on the 

provisional unlawful presence waiver 

application that the qualifying relative 

is a U.S. citizen spouse or parent. 

(5) 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. 

(6) 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. 

(7) 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. 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 this paragraph (e), 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. 

(8) Notice of Decision. USCIS will 

notify the alien or 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 a waiver application 

under paragraph (a)(1) of this section 

after the immigrant visa interview 

overseas. 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. 

(9) Withdrawal of waiver requests. An 

alien may withdraw his or her request 

for a provisional unlawful presence 

waiver at any time before the final 

decision, but the alien will not be 

permitted to later file a new provisional 

unlawful presence waiver. Once the 

case is withdrawn, USCIS will close the 

case and notify the alien and his or her 

attorney or accredited representative. 

(10) 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. 

(11) 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 admissible and 

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. 

(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. 

(12) Validity. Until the provisional 

unlawful presence waiver takes full 

effect as provided in paragraph (e)(11) 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)(11), the period of 

unlawful presence for which the 

provisional unlawful presence waiver is 

granted is waived permanently and, in 

accordance with and subject to 

paragraph (a)(4) of this section, the 

waiver is valid indefinitely. 

(13) 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 inadmissible on 

grounds other than 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 


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Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 19923 

reinstated in accordance with section 

203(g) of the Act; or 

(iv) The alien, at any time, reenters or 

attempts to reenter the United States 

without being inspected and admitted 

or paroled. 

* * * * * 

Janet Napolitano, 

Secretary. 

[FR Doc. 2012–7698 Filed 3–30–12; 8:45 am] 

BILLING CODE 9111–97–P 


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