Proposed Rule Change Will Unify Families Subject to 3 and 10 Year Bars: Provisional Waivers of Inadmissibility for Certain Immediate Relatives of U.S. Citizens

USCIS Federal Register Announcements

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[Federal Register Volume 77, Number 5 (Monday, January 9, 2012)]
[Proposed Rules]
[Pages 1040-1043]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-140]

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Proposed Rules
Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 77, No. 5 / Monday, January 9, 2012 /
Proposed Rules

[[Page 1040]]

DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 212

RIN 1615-ZB10

Provisional Waivers of Inadmissibility for Certain Immediate
Relatives of U.S. Citizens

AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security.

ACTION: Notice of intent.

———————————————————————–

SUMMARY: U.S. Citizenship and Immigration Services (USCIS) intends 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. Specifically, USCIS is
considering regulatory changes that will allow certain immediate
relatives of U.S. citizens to request provisional waivers under section
212(a)(9)(B)(v) of the Immigration and Nationality Act of 1952, as
amended (INA or Act), 8 U.S.C. 1182(a)(9)(B)(v), prior to departing the
United States for consular processing of their immigrant visa
applications. An alien would be able to obtain such a waiver only if a
Petition for Alien Relative, Form I-130, is filed by a U.S. citizen on
his or her behalf and that petition has been approved, thereby
classifying the alien as an “immediate relative” for purposes of the
immigration laws, and he or she demonstrates that the denial of the
waiver would result in extreme hardship to the alien’s U.S. citizen
spouse or parent “qualifying relative.” The qualifying relative for
purposes of the waiver is not necessarily the immediate relative who
filed the immigrant visa petition on the alien relative’s behalf.

FOR FURTHER INFORMATION CONTACT: Roselyn Brown-Frei, Office of Policy
and Strategy, 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).

SUPPLEMENTARY INFORMATION:

I. Background

A. Overview

The proposed process is intended to reduce the time that U.S.
citizens are separated from immediate relatives who are required to
remain outside the United States for immigrant visa application
processing and during the adjudication of waivers of inadmissibility.
Through this change, USCIS does not intend to modify the standard for
assessing eligibility for these waivers, including whether the denial
of the waiver would result in extreme hardship to a U.S. citizen spouse
or parent (“qualifying relative”). For purposes of the waiver under
section 212(a)(9)(B)(v) of the Act, a “qualifying relative” is a U.S.
citizen spouse or parent or a lawful permanent resident spouse or
parent who would suffer extreme hardship if their relative were not
allowed to immigrate. For purposes of this provisional waiver program,
DHS intends to limit who may participate in this program to immediate
relatives who can demonstrate extreme hardship to a U.S. citizen spouse
or parent. Even if they obtain a provisional waiver, eligible aliens
who are required to obtain a visa through consular processing would
still be required to depart from the United States to apply for an
immigrant visa. The purpose of the new process is to reduce the time
that U.S. families remain separated while their relative proceeds
through the immigrant visa process.

Certain grounds of inadmissibility can bar aliens from being
admitted to the United States or obtaining an immigrant visa,
preventing U.S. citizens from reuniting with their immediate relatives.
However, the Secretary of Homeland Security, through USCIS, may waive
some of those grounds. An alien who is subject to one or more grounds
of inadmissibility must obtain a waiver, if available, from USCIS
before he or she may be issued an immigrant visa by a Department of
State consular officer at a U.S. embassy or consulate overseas.

The bars to admission under section 212(a)(9)(B)(i)(I) and (II) of
the INA, 8 U.S.C. 1182(a)(9)(B)(i)(I) and (II), based on accrual of
unlawful presence in the United States, comprise one such ground.
Typically, under current processes, aliens who are immediate relatives
of U.S. citizens applying for immigrant visas at Department of State
consular posts must apply for waivers of unlawful presence while
outside the United States after a finding of inadmissibility is made by
a Department of State consular officer in conjunction with their
immigrant visa applications. As a result, U.S. citizen petitioners are
often separated for long periods of time from their immediate relatives
who are applying for immigrant visas and have accrued a certain period
of unlawful presence in the United States. This revised process, which
eliminates the time-consuming interchange between the Department of
State and USCIS, would significantly reduce the amount of time that
American families will be separated from their immediate relatives.
USCIS also believes that efficiencies can be gained through this
revised process for both the U.S. Government and most applicants.

USCIS intends to limit consideration for the provisional waiver to
aliens who qualify for classification as immediate relatives of U.S.
citizens, who have a U.S. citizen spouse or parent who would suffer
extreme hardship if the waiver were denied, and for whom the sole basis
for inadmissibility is unlawful presence in the United States of more
than 180 days. USCIS would grant a provisional waiver if the alien
meets the eligibility requirements described in this Notice, including
demonstrating that the applicant’s qualifying U.S. citizen spouse or
parent would suffer extreme hardship and that the applicant warrants a
favorable exercise of discretion. The provisional waiver would be
granted before the alien leaves the United States to attend his or her
immigrant visa interview with a consular officer. The provisional
waiver, however, would not become effective unless and until the alien
departs from the United States. If the alien is otherwise eligible for
the immigrant visa, the consular officer may then approve the issuance
of the visa so that the alien may proceed to immigrate to the United
States for permanent residence.

This notice of intent generally describes the proposal that USCIS
is considering. USCIS will further develop, and ultimately finalize,
this proposal through the rulemaking process. This effort is consistent
with

[[Page 1041]]

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.” Do not send an application requesting a provisional waiver
under the procedures under consideration in this notice. Any
application requesting this new process will be rejected, and the
application package returned to the applicant, including any fees,
until a final rule is issued and the change becomes effective.

B. 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 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 under the Homeland Security Act of 2002, the immigration and
nationality laws, and other delegated authority.

C. Grounds of Inadmissibility

U.S. immigration laws provide mechanisms for U.S. citizens to
petition for certain family members for admission to the United States
for purposes of family reunification. 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, 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 of Homeland Security has the discretion to waive
certain inadmissibility grounds, upon the filing of a request by an
alien who meets the relevant statutory requirements. If the Secretary,
through USCIS, grants such a waiver, the waived ground will no longer
bar the alien’s admission, readmission, or immigrant visa eligibility
based on that specific ground of inadmissibility.

One of the inadmissibility grounds is described in section
212(a)(9)(B)(i) of the Act, 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 three years from the date
of departure. Under part (II) of the same provision, an alien who was
unlawfully present for one year or more and then departs before,
during, or after removal proceedings, will be inadmissible for ten
years from the date of the departure.

The three- and ten-year unlawful presence bars do not take effect
unless and until an alien departs from the United States. By statute,
aliens are not considered to be accruing unlawful presence for purposes
of 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)(i)(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)(i)(iii)(II). Battered
women and children and victims of a severe form of trafficking in
persons are not subject to the 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 212(a)(9)(B)(iii)(IV)-(V), 8 U.S.C. 1182(a)(9)(B)(i)(iii)(IV)-(V).
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.

The Secretary of Homeland Security has the discretion to waive the
three- and ten-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 qualifying relative. See INA section
212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v). The qualifying relative for
purposes of the waiver is not necessarily the relative who filed the
immigrant visa petition on the alien relative’s behalf. For example, an
alien applicant’s U.S. citizen spouse may have filed the immigrant visa
petition on the applicant’s behalf, but the applicant’s unlawful
presence waiver application may be based on extreme hardship to the
applicant’s U.S. citizen parent. Because the granting of a waiver is
discretionary, the alien also must establish that he or she merits a
favorable exercise of discretion.

D. Current Process and Problems

An alien who must apply for permanent residence through consular
immigrant visa processing outside the United States must appear for an
interview with a Department of State consular officer abroad.
Currently, if the consular officer determines that the alien is subject
to the three- or ten-year bar, the consular officer advises the alien
that he or she is eligible to apply for a section 212(a)(9)(B)(v)
waiver by filing a Form I-601, Application for Waiver of Grounds of
Inadmissibility, with USCIS. Under current rules, an individual is not
permitted to apply for the section 212(a)(9)(B)(v) waiver before the
consular officer has made the inadmissibility determination.

Once the Form I-601 is filed, in most cases, the file is
transferred from the Department of State to USCIS. USCIS adjudicates
that waiver request while the alien remains outside the United States
and awaits a decision. If USCIS approves the waiver, USCIS notifies the
Department of State, and the Department of State may then issue the
immigrant visa if the applicant is otherwise eligible. If the waiver is
denied, the alien may appeal the decision to the USCIS Administrative
Appeals Office and, if the denial is upheld, the alien must remain
outside the United States for three or ten years before being able to
reapply for an immigrant visa. However, a denial does not preclude the
alien from filing another Form I-601 in the future.

The three- and ten-year unlawful presence bars under section
212(a)(9)(B)(i)(I) and (II) of the Act do not apply unless and until
the applicant departs from the United States. At the same time, 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 lawful permanent residence while remaining in
the United States. Consequently, they must depart to regularize their
immigration status by applying for their immigrant visas at a U.S.
embassy or consulate abroad. The action required to regularize the
status of an alien, departure from the United States, therefore is the
very action that triggers the section 212(a)(9)(B)(i) inadmissibility
that bars that alien from obtaining the immigrant visa.

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II. Proposed Waiver Process

A. Proposed Process

The proposed change would create a more streamlined and efficient
process for waiver applicants whose sole inadmissibility ground is
unlawful presence, while simultaneously minimizing family separation.
If the waiver determination, with respect to unlawful presence, were
made in advance of the immigrant visa interview and the applicant
otherwise were eligible for the immigrant visa, the consular officer
could simply issue the immigrant visa at the time of the visa
interview. The new process thus will reduce the movement of the case
back and forth between the Department of State and USCIS, which
significantly prolongs the overall process and increases the time that
U.S. citizens are separated from their immediate family members.
Additionally, the new process would reduce U.S. Government costs
associated with the movement of cases, and provide a more efficient
visa process overall.

B. Affected Visa Categories

USCIS intends to limit this process change to aliens who are
immediate relatives of U.S. citizens, as defined in section
201(b)(2)(A)(i) of the Act, 8 U.S.C. 1151(b)(2)(A)(i), who must depart
from the United States to obtain immigrant visas, and whose U.S.
citizen spouse or parent would suffer extreme hardship if the applicant
were denied admission to the United States. The term “immediate
relative” means the spouse, parent or child (unmarried and under 21
years old) of a U.S. citizen, except that, in the case of a parent, the
U.S. citizen son or daughter petitioning for an immigrant visa must be
at least 21 years old. Certain self-petitioners (i.e., widows/widowers
of U.S. citizen and their minor unmarried children) may also be
considered immediate relatives. See INA 201(b)(2)(A)(i), 8 U.S.C.
1151(b)(2)(A)(i). Individuals applying for a waiver must also establish
that the grant of the provisional waiver is warranted as a matter of
discretion.
Because the focus on family unification of U.S. citizens and their
immediate relatives is consistent with Congress’ prioritization in the
immigration laws, USCIS has identified immediate relatives of U.S.
citizens as the class of aliens to consider for this procedural change.
In addition, Congress did not set an annual limitation for the number
of immediate relatives of U.S. citizens admitted to the United States.
Therefore, these relatives always have an immigrant visa immediately
available, and the visa thus can be processed immediately upon
approval.

C. Ground of Inadmissibility Considered for Provisional Waiver

USCIS intends to further limit this procedural change to waivers
filed by immediate relatives of U.S. citizens whose only ground of
inadmissibility is the three- or ten-year unlawful presence bar under
section 212(a)(9)(B)(i)(I) or (II) of the Act, 8 U.S.C.
1182(a)(9)(B)(i)(I) or (II). Aliens who require waivers for one or more
additional grounds of inadmissibility, such as fraud or willful
misrepresentation (section 212(i) waiver) or certain criminal offenses
(section 212(h) waiver), in conjunction with their immigrant visa
applications must continue to file a Form I-601 while outside of the
United States in accordance with the existing process.
To qualify for the provisional waiver process, an applicant must
establish not only that he or she is the immediate relative of a U.S.
citizen, but also that denial of the waiver would result in extreme
hardship to a qualifying relative. The qualifying relative must be a
U.S. citizen spouse or parent but does not need to be the U.S. citizen
petitioner. Only extreme hardship from the denial of a waiver to a
qualifying U.S. citizen relative makes an alien eligible for the
provisional waiver process; extreme hardship to the alien himself or
herself as a result of denial does not make the alien eligible. An
alien whose waiver application is based on extreme hardship to a lawful
permanent resident spouse or parent must continue to apply for the
waiver from outside the United States in accordance with existing
procedures. Eligible aliens, furthermore, must be the beneficiaries of
petitions classifying them as immediate relatives of U.S. citizens, and
thus have visas immediately available. Because the granting of a waiver
is discretionary, eligible aliens also must establish that they merit a
favorable exercise of discretion. The standard for assessing whether
denial of the waiver would result in extreme hardship to the U.S.
citizen spouse or parent of such aliens will remain unchanged.

D. Adjudication and Decisions

After filing the Form I-601 with USCIS, DHS envisions that an alien
seeking a provisional waiver would be required to undergo biometrics
collection. USCIS would deny the application for a provisional waiver
if other possible grounds of inadmissibility are found or arise during
adjudication.

If the application is approved, USCIS would notify the Department
of State and the alien of the provisional approval. In all instances, a
Department of State consular officer would make the formal
inadmissibility finding during or following the immigrant visa
interview abroad, and if no other grounds of inadmissibility arise, the
provisional waiver under section 212(a)(9)(B)(v) of the Act granted by
USCIS would facilitate immigrant visa issuance. If, however, the
consular officer finds during adjudication of the immigrant visa
application that the individual is subject to another ground of
inadmissibility that can be waived, the alien would need to file
another waiver application with USCIS.

This process would not alter the requirement that an alien depart
from the United States to apply for an immigrant visa. An alien who
receives a provisional waiver under section 212(a)(9)(B)(v) of the Act
for the three- or ten-year bar under section 212(a)(9)(B)(i)(I) or (II)
of the Act would not gain the benefit of such waiver unless he or she
departs from the United States. The departure from the United States
would have to take place to activate the provisional waiver under
section 212(a)(9)(B)(v) of the Act.

E. Excluded Visa Categories

Aliens who would not be eligible for this provisional waiver
adjudication process and aliens who are denied provisional approval of
their waiver requests would continue to follow current agency processes
for filing and adjudication of waiver requests. Aliens who fall under
any other family- or employment-based or other visa category or whose
section 212(a)(9)(B)(v) waiver eligibility would be based on extreme
hardship to a lawful permanent resident alien relative would not be
considered for provisional waivers. Aliens who are subject to other
grounds of inadmissibility or removal also would not be considered for
provisional waivers. Further, aliens with waiver applications under
section 212(a)(9)(B)(v) of the Act currently pending in either
administrative or judicial proceedings would not qualify for this new
process.

III. Conclusion

This document outlines the key elements of USCIS’s proposed change
to its current process for filing and adjudication of waivers of
inadmissibility for unlawful presence for immediate relative of U.S.
citizens. The focus on family unification of U.S. citizens and their
immediate relatives is consistent with Congress’s prioritization

[[Page 1043]]

in the immigration laws; the new process will reduce the movement of
the case back and forth between the Department of State and USCIS,
which significantly prolongs the overall process and increases the time
that U.S. citizens are separated from their immediate family members.
The proposed change would affect only when and where certain aliens can
apply for waivers of the unlawful presence grounds of inadmissibility;
it would not change the extreme hardship standard for evaluating
eligibility for the waiver nor would it change whether aliens subject
to these grounds of inadmissibility must depart the U.S. to apply for
their immigrant visas. USCIS plans to effectuate this proposal through
the regulatory process. USCIS will issue a proposed rulemaking that
will explain the proposal in further detail and that will invite
comment from all interested parties. Note: Do not send an application
requesting a provisional waiver under the procedures under
consideration in this notice. Any application requesting this new
process will be rejected and the application package returned to the
applicant, including any fees, until a final rule is issued and the
change becomes effective.

Janet Napolitano,
Secretary of Homeland Security.
[FR Doc. 2012-140 Filed 1-6-12; 8:45 am]
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