For those eligible, stateside waiver processing will allow family members of green card holders and citizens to have inadmissibility waivers processed from within the United States, rather than having to wait for a year in Juarez
DHS/USCIS RIN: 1615-AB99 Publication ID: 2012
Title: ●Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives
Abstract: On April 2, 2012, the Department of Homeland Security (DHS) published a proposed rule at 77 FR 19902 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 section 212(a)(9)(B)(v) of the Immigration and Nationality Act of 1952 (INA); 8 U.S.C. 1182(a)(9)(B)(v) in anticipation of immigrant visa processing abroad. The final rule implements the provisional unlawful presence waiver process, and finalizes clarifying amendments to other provisions in part 212 of title 8 of the Code of Federal Regulations. Based on the final rule, individuals who are immediate relatives of U.S. citizens who are physically present in the United States and are seeking immigrant visas through consular processing abroad will be able to apply for provisional unlawful presence waivers while in the United States. These changes will significantly reduce the length of time U.S. citizens are separated from their immediate relatives who are consular processing abroad and reduce the degree of interchange between DOS and USCIS, creating greater efficiencies for both the U.S. Government and most applicants.
Agency: Department of Homeland Security(DHS) Priority: Economically Significant
RIN Status: First time published in the Unified Agenda Agenda Stage of Rulemaking: Final Rule Stage
Major: Yes Unfunded Mandates: No
CFR Citation: 8 CFR 103; 8 CFR 212
Legal Authority: 5 USC 301; 5 USC 552; 5 USC 552a; 8 USC 1101; 8 USC 1103; 8 USC 1304; 8 USC 1182 and note; 8 USC 1184; 8 USC 1187; 8 USC 1223; 8 USC 1225; 8 USC 1226; 8 USC 1227; 8 USC 1255; 8 USC 1304; 8 USC 1356; 8 USC 1185 and note (section 7209 of Pub. L. 108-458); 31 USC 9701; PL 107-296, 116 Stat 2135 (6 USC 1 et seq); EO 12356, 47 FR 14874, 47 FR 15557; 3 CFR 1982 Comp p 166; 8 CFR 2; sec 212.1(q) also issued under sec 702, PL 110-229, 122 Stat 754, 854
Legal Deadline: None
Statement of Need: 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 (LPR) status while in the United States. 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 DHS a waiver of the inadmissibility as a result of their unlawful presence in the United States. These immediate relatives cannot apply for the waiver until after their immigrant visa interviews and must remain outside of the United States, separated from their U.S. citizen spouses, parents, or children while their waiver applications are adjudicated by USCIS. In some cases, waiver application processing can take well over 1 year, prolonging the separation of these immediate relatives from their U.S. citizen spouses, parents, and children. In addition, the action required for these immediate relatives to obtain LPR status in the United States–departure from the United States to apply for an immigrant visa at a DOS consulate abroad–is the very action that triggers the unlawful presence inadmissibility grounds under section 212(a)(9)(B)(i) of the INA; 8 U.S.C. 1182(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. In addition, the action required for these immediate relatives to obtain LPR status in the United States (i.e., departure from the United States to apply for an immigrant visa at a DOS consulate abroad) is the very action that triggers the unlawful presence inadmissibility grounds under section 212(a)(9)(B)(i) of the INA; 8 U.S.C. 1182(a)(9)(B)(i).
Summary of the Legal Basis: The Secretary of Homeland Security (Secretary)’s authority to promulgate this final rule is 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 INA, 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. The fee schedule for provisional unlawful presence waiver applications is found at 8 CFR 103.7(b)(1)(i)(AA).
Anticipated Costs and Benefits: This final 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 should achieve increased efficiencies in processing immigrant visas for individuals subject to the unlawful presence inadmissibility bars under section 212(a)(9)(B) of the INA; 8 U.S.C. 1182(a)(9)(B). Estimates of the preliminary costs of the rule were developed assuming that current demand is constrained because of concerns that families may endure lengthy separations under the current system. Due to uncertainties as to the degree of the current constraint of demand, DHS used a range of constraint levels with corresponding increases in demand to estimate the costs. In the proposed rule, 77 FR 19913, DHS estimated that 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 requires that provisional waiver applicants submit biometric information. Included in the total cost estimate is the cost of collecting biometrics, which we estimated in the proposed rule to range from approximately $28 million to approximately $42.5 million discounted at seven percent over ten years. In addition, as this rule significantly streamlines the current process, DHS expects that additional applicants will apply for the provisional waiver as compared to the current waiver process. To the extent that this rule induces new demand for immediate relative visas, additional immigration benefit forms, such as the Petition for Alien Relative, Form I-130, will be filed compared to the pre-rule baseline. These additional forms will involve fees being paid by applicants to the Federal Government for form processing and additional opportunity costs of time being incurred by applicants to provide the information required by the forms. The cost estimate in the proposed rule also includes the impact of this induced demand, which we estimate will range from approximately $72.6 million to approximately $261.3 million discounted at seven percent over ten years. DHS is currently drafting the final rule in response to comments, and preparing final cost estimates.