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  • News: USCIS, DHS Final Rule on Expansion of Provisional Unlawful Presence Waivers of Inadmissibility

    [Federal Register Volume 81, Number 146 (Friday, July 29, 2016)]
    [Rules and Regulations]
    [Pages 50243-50277]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 2016-17934]
    
    
    
    [[Page 50243]]
    
    Vol. 81
    
    Friday,
    
    No. 146
    
    July 29, 2016
    
    Part V
    
    
    
    
    
    Department of Homeland Security
    
    
    
    
    
    -----------------------------------------------------------------------
    
    
    
    
    
    8 CFR Parts 103 and 212
    
    
    
    
    
    Expansion of Provisional Unlawful Presence Waivers of Inadmissibility; 
    Final Rule
    
    Federal Register / Vol. 81 , No. 146 / Friday, July 29, 2016 / Rules 
    and Regulations
    
    [[Page 50244]]
    
    
    -----------------------------------------------------------------------
    
    DEPARTMENT OF HOMELAND SECURITY
    
    8 CFR Parts 103 and 212
    
    [CIS No. 2557-2014; DHS Docket No. USCIS-2012-0003]
    RIN 1615-AC03
    
    
    Expansion of Provisional Unlawful Presence Waivers of 
    Inadmissibility
    
    AGENCY: U.S. Citizenship and Immigration Services, DHS.
    
    ACTION: Final rule.
    
    -----------------------------------------------------------------------
    
    SUMMARY: This final rule, consistent with the Immigration and 
    Nationality Act (INA), expands the class of individuals who may be 
    eligible for a provisional waiver of certain grounds of inadmissibility 
    based on the accrual of unlawful presence in the United States. The 
    provisional unlawful presence waiver (``provisional waiver'') process 
    allows certain individuals who are present in the United States to 
    request from U.S. Citizenship and Immigration Services (USCIS) a 
    provisional waiver of these grounds of inadmissibility before departing 
    the United States for consular processing of their immigrant visas--
    rather than applying for a waiver abroad after their immigrant visa 
    interviews using the Form I-601, Waiver of Grounds of Inadmissibility 
    (``Form I-601 waiver process''). The provisional waiver process is 
    designed to encourage unlawfully present individuals to leave the 
    United States, attend their immigrant visa interviews, and return to 
    the United States legally to reunite with their U.S. citizen or lawful 
    permanent resident (LPR) family members. Having an approved provisional 
    waiver helps facilitate immigrant visa issuance at DOS, streamlines 
    both the waiver and the immigrant visa processes, and reduces the time 
    that applicants are separated from their U.S. citizen or LPR family 
    members, thus promoting family unity. The rule is intended to encourage 
    eligible individuals to complete the immigrant visa process abroad, 
    promote family unity, and improve administrative efficiency.
    
    DATES: This final rule is effective August 29, 2016.
    
    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) 
    272-8377 (this is not a toll free number).
    
    SUPPLEMENTARY INFORMATION: This final rule adopts the proposed rule 
    that the Department of Homeland Security (DHS) published on July 22, 
    2015, with changes made in response to comments received. This final 
    rule provides that eligibility for the provisional waiver will no 
    longer be limited to the subset of statutorily qualified individuals 
    who seek to immigrate as immediate relatives of U.S. citizens \1\ and 
    who can show that denial of admission will result in extreme hardship 
    to a U.S. citizen spouse or parent. Rather, this final rule makes 
    eligibility for the provisional waiver available to all individuals who 
    are statutorily eligible for a waiver of the unlawful presence grounds 
    of inadmissibility. Under this final rule, such an individual must go 
    abroad to obtain an immigrant visa, establish that denial of admission 
    will result in extreme hardship to a U.S. citizen or LPR spouse or 
    parent, establish that his or her case warrants a favorable exercise of 
    discretion, and meet all other regulatory requirements. Eligibility for 
    the provisional waiver will also extend to the spouses and children who 
    accompany or follow to join principal immigrants. The rule is intended 
    to encourage eligible individuals to complete the immigrant visa 
    process abroad, promote family unity, and improve administrative 
    efficiency. DHS believes that this rule will reduce overall immigrant 
    visa processing times for eligible immigrant visa applicants; encourage 
    individuals who are unlawfully present in the United States to seek 
    lawful status after departing the country; save resources and time for 
    the Department of State (DOS), DHS, and the individual; and reduce the 
    hardship that U.S. citizen and LPR family members of individuals 
    seeking the provisional waiver may experience as a result of the 
    immigrant visa process.
    ---------------------------------------------------------------------------
    
        \1\ Immediate relatives of U.S. citizens are the spouses, 
    children and parents of U.S. citizens, provided that, in the case of 
    parents, the U.S. citizen son or daughter petitioner is over the age 
    of 21. In certain situations, the former spouse of a deceased U.S. 
    citizen is also considered an immediate relative.
    ---------------------------------------------------------------------------
    
    Table of Contents:
    
    I. Executive Summary
        A. Purpose of the Regulatory Action
        B. Costs and Benefits
    II. Background
        A. Legal Authority
        B. Proposed Rule
        C. Final Rule
    III. Public Comments on the Proposed Rule
        A. Summary of Public Comments
        B. Legal Authority
        C. Eligibility for the Provisional Waiver
        D. Adjudication
        E. Filing Requirements and Fees
        F. Comments on the Application for Provisional Unlawful Presence 
    Waiver, Form I-601A, and the Form Instructions
        G. Miscellaneous Comments
        H. Comments on the Executive Orders 12866/13563 Analysis
    IV. Regulatory Amendments
        A. Amending 8 CFR 212.7(e)(1) To Clarify Which Agency Has 
    Jurisdiction To Adjudicate Provisional Waivers
        B. Removing the Provisional Waiver Reason To Believe Standard as 
    a Basis for Ineligibility for Provisional Waivers
        C. Removing the DOS Visa Interview Scheduling Cut-Off Dates in 8 
    CFR 212.7(e)(4)(iv) and 212.7(e)(5)(ii)(G)
        D. Allowing Individuals With Final Orders of Removal, 
    Deportation, or Exclusion To Apply for Provisional Waivers
        E. Clarifying When an Individual Is Subject to Reinstatement and 
    Ineligible for Provisional Waivers
        F. Miscellaneous Technical Amendments
    V. Statutory and Regulatory Requirements
        A. Unfunded Mandates Reform Act of 1995
        B. Small Business Regulatory Enforcement Fairness Act of 1996
        C. Executive Orders 12866 (Regulatory Planning and Review) and 
    13563 (Improving Regulation and Regulatory Review)
        D. Executive Order 13132
        E. Executive Order 12988 Civil Justice Reform
        F. Paperwork Reduction Act
        G. Regulatory Flexibility Act
    
    I. Executive Summary
    
    A. Purpose of the Regulatory Action
    
        This final rule, consistent with the INA, expands the provisional 
    unlawful presence waiver process (hereinafter ``provisional waiver 
    process''), which specifies how an individual may be eligible to 
    receive a provisional waiver of his or her inadmissibility for accrual 
    of unlawful presence prior to departing the United States for 
    processing of an immigrant visa application at a U.S. embassy or 
    consulate abroad. See 8 CFR 212.7(e).
        Generally, individuals who are in the United States and seeking 
    lawful permanent resident (LPR) status must either obtain an immigrant 
    visa abroad through what is known as ``consular processing'' with the 
    Department of State (DOS) or apply to adjust their immigration status 
    to that of an LPR in the United States, if eligible. Individuals 
    present in the United States without having been inspected and admitted 
    or paroled are typically ineligible to adjust their status in the 
    United States. To obtain LPR status, such individuals must leave the 
    United States for immigrant visa processing at a U.S. Embassy or 
    consulate abroad. But because these individuals are present in the 
    United States without having been inspected and admitted or paroled, 
    their departures may trigger a ground of
    
    [[Page 50245]]
    
    inadmissibility based on the accrual of unlawful presence in the United 
    States under INA section 212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i).
        Under subclause (I) of this provision, an individual who has been 
    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, is inadmissible for 3 
    years from the date of departure. See INA section 212(a)(9)(B)(i)(I), 8 
    U.S.C. 1182(a)(9)(B)(i)(I). Under subclause (II), an individual who has 
    been unlawfully present in the United States for one year or more and 
    then departs the United States (before, during, or after removal 
    proceedings), is inadmissible for 10 years from the date of the 
    departure. See INA section 212(a)(9)(B)(i)(II), 8 U.S.C. 
    1182(a)(9)(B)(i)(II). These ``3- and 10-year unlawful presence bars'' 
    do not take effect unless and until the individual departs from the 
    United States. See, e.g., Matter of Rodarte-Roman, 23 I. & N. Dec. 905 
    (BIA 2006).
        The Secretary of Homeland Security (Secretary) may waive this 
    ground of inadmissibility for an individual who can demonstrate that 
    the refusal of his or her admission to the United States would result 
    in extreme hardship to his or her 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). Prior to 
    the creation of the provisional waiver process in 2013, any individual 
    who was seeking an immigrant visa and became inadmissible under the 3- 
    or 10-year unlawful presence bar upon departure from the United States, 
    could apply for a waiver of such inadmissibility from DHS by filing an 
    Application for Waiver of Grounds of Inadmissibility, Form I-601, with 
    USCIS, but only after having attended the consular immigrant visa 
    interview abroad. Those who applied for waivers under this ``Form I-601 
    waiver process'' \2\ were effectively required to remain abroad for at 
    least several months while USCIS adjudicated their waiver 
    applications.\3\
    ---------------------------------------------------------------------------
    
        \2\ The ``Form I-601 waiver process,'' for purposes of this 
    rule, refers to the process that an applicant uses when seeking an 
    immigrant visa at a U.S. Embassy or consulate abroad and applying 
    for a waiver of inadmissibility by filing an Application for Waiver 
    of Grounds of Inadmissibility, Form I-601.
        \3\ The average adjudication time of Form I-601 applications is 
    currently over five months. Source: U.S. Citizenship and Immigration 
    Services. USCIS Processing Time Information for the Nebraska Service 
    Center-Form I-601, available at https://egov.uscis.gov/cris/processTimesDisplayInit.do (last updated Feb. 11, 2016).
    ---------------------------------------------------------------------------
    
        For some individuals, the Form I-601 waiver process led to lengthy 
    separations of immigrant visa applicants from their family members, 
    causing some U.S. citizens and LPRs to experience the significant 
    emotional and financial hardships that Congress aimed to avoid when it 
    authorized the waiver. See INA section 212(a)(9)(B)(v), 8 U.S.C. 
    1182(a)(9)(B)(v) (providing for an inadmissibility waiver, ``if it is 
    established to the satisfaction of the Attorney General that the 
    refusal of admission to such immigrant alien would result in extreme 
    hardship to the citizen or lawfully resident spouse or parent of such 
    alien''). For this reason, many relatives of U.S. citizens and LPRs who 
    are eligible to obtain LPR status may be reluctant to travel abroad to 
    seek immigrant visas and obtain such status. The Form I-601 waiver 
    process also created processing inefficiencies for both USCIS and DOS 
    through repeated interagency communication and through multiple 
    consular appointments or interviews.
        On January 3, 2013, DHS promulgated a final rule, Provisional 
    Unlawful Presence Waivers of Inadmissibility for Certain Immediate 
    Relatives, in the Federal Register. See 78 FR 536 (Jan. 3, 2013) 
    (``2013 Rule''). To improve administrative efficiency and reduce the 
    amount of time that a U.S. citizen spouse or parent is separated from 
    his or her relative while the relative completes the immigrant visa 
    process, the 2013 Rule provided a process by which certain statutorily 
    eligible individuals--specifically, certain parents, spouses and 
    children of U.S. citizens--may apply for provisional waivers of the 3- 
    and 10-year unlawful presence bars (``provisional waivers'') before 
    leaving the United States for their immigrant visa interviews. The 
    final rule also limited eligibility for provisional waivers to those 
    immediate relatives of U.S. citizens who could show extreme hardship to 
    a U.S. citizen spouse or parent. One reason DHS limited eligibility for 
    the provisional waiver was to allow DHS and DOS time to assess the 
    effectiveness of the process and the operational impact it may have on 
    existing agency processes and resources. See 2013 Rule, 78 FR at 541.
        Administration of the provisional waiver process has shown that 
    granting a provisional waiver prior to the departure of an immediate 
    relative of a U.S. citizen can reduce the time that such family members 
    are separated. The grant of a provisional waiver also reduces hardships 
    to U.S. citizen families and lowers the processing costs for DHS and 
    DOS. In light of these benefits, and because other individuals are 
    statutorily eligible for waivers of the 3- and 10-year unlawful 
    presence bars, DHS decided to remove restrictions that prevented 
    certain individuals from seeking such waivers through the provisional 
    waiver process. On July 22, 2015, DHS proposed to expand the class of 
    individuals who may be eligible for provisional waivers beyond certain 
    immediate relatives of U.S. citizens to all statutorily eligible 
    individuals regardless of their immigrant visa classification. DHS also 
    proposed to expand the class of individuals who could obtain 
    provisional waivers, consistent with the statutory waiver authority, by 
    permitting consideration of extreme hardship not only to U.S. citizen 
    spouses or parents, but also to LPR spouses or parents.
        In this final rule, DHS adopts the changes discussed in the 
    proposed rule with several modifications in response to comments 
    submitted on the proposed rule. The new modifications include:
        (1) Clarifying that all individuals seeking provisional waivers, 
    including those in removal proceedings before the Executive Office for 
    Immigration Review (EOIR), must file applications for provisional 
    waivers with USCIS.
        (2) Allowing individuals to apply for provisional waivers even if 
    USCIS has a reason to believe that they may be subject to other grounds 
    of inadmissibility.
        (3) Eliminating the proposed temporal limitations that would have 
    restricted eligibility for provisional waivers based on DOS visa 
    interview scheduling.
        (4) Allowing individuals with final orders of removal, exclusion, 
    or deportation to be eligible for provisional waivers provided that 
    they have already applied for, and USCIS has approved, an Application 
    for Permission to Reapply for Admission into the United States After 
    Deportation or Removal, Form I-212.
        (5) Clarifying that DHS must have actually reinstated a removal, 
    deportation, or exclusion order in order for an individual who has 
    returned to the United States unlawfully after removal to be ineligible 
    for a provisional waiver on that basis.
        In addition, DHS made several technical and non-substantive 
    changes.
    
    B. Costs and Benefits
    
        This rule's expansion of the provisional waiver process will create 
    costs and benefits for newly eligible provisional waiver (Form I-601A) 
    applicants, their U.S. citizen or LPR family members, and the Federal 
    Government (namely, USCIS and DOS), as outlined in the Summary Table. 
    This rule will impose fee, time, and travel
    
    [[Page 50246]]
    
    costs on an estimated 100,000 newly eligible individuals who choose to 
    complete and submit provisional waiver applications and biometrics 
    (fingerprints, photograph, and signature) to USCIS for consideration 
    during the 10-year period of analysis (see Table 8). These costs will 
    equal an estimated $52.4 million at a 7 percent discount rate and $64.2 
    million at a 3 percent discount rate in present value across the period 
    of analysis. On an annualized basis, the costs will measure 
    approximately $7.5 million at both 7 percent and 3 percent discount 
    rates (see Summary Table).
        Newly eligible provisional waiver applicants and their U.S. citizen 
    or LPR family members will benefit from this rule. Those applying for 
    provisional waivers will receive advance notice of USCIS' decision to 
    provisionally waive their 3- or 10-year unlawful presence bar before 
    they leave the United States for their immigrant visa interview abroad. 
    This offers applicants and their family members the certainty of 
    knowing that the applicants have been provisionally approved for 
    waivers of the 3- and 10-year unlawful presence bars before departing 
    from the United States. Individuals with approved provisional waivers 
    may experience shortened periods of separation from their family 
    members living in the United States while they pursue issuance of 
    immigrant visas abroad, thus reducing any related financial and 
    emotional strains on the families. USCIS and DOS will continue to 
    benefit from the operational efficiencies gained from the provisional 
    waiver's role in streamlining immigrant visa application processing, 
    but on a larger scale.
        In the absence of this rule, DHS assumes that the majority of 
    individuals who are newly eligible for provisional waivers under this 
    rule will likely continue to pursue an immigrant visa through consular 
    processing abroad and apply for waivers of grounds of inadmissibility 
    resulting from the accrual of unlawful presence through the Form I-601 
    waiver process. Those who apply for unlawful presence waivers through 
    the Form I-601 waiver process will incur fee, time, and travel costs 
    similar to individuals applying for waivers through the provisional 
    waiver process. However, without this rule, individuals who must seek a 
    waiver of inadmissibility abroad through the Form I-601 waiver process 
    after the immigrant visa interview may face longer separation times 
    from their families in the United States and will experience less 
    certainty regarding the approval of a waiver of the 3- or 10-year 
    unlawful presence bar before departing from the United States. Absent a 
    waiver, individuals who are subject to these bars would be unable to 
    obtain LPR status for either 3 or 10 years.
    
                             Summary Table--Total Costs and Benefits of Rule, Year 1-Year 10
    ----------------------------------------------------------------------------------------------------------------
                                              10-Year present values                     Annualized values
                                     -------------------------------------------------------------------------------
                                       3% Discount rate    7% Discount rate    3% Discount rate    7% Discount rate
    ----------------------------------------------------------------------------------------------------------------
    Total Costs:
        Quantitative................  $64,168,205.......  $52,429,216.......  $7,522,471........  $7,464,741
    ----------------------------------------------------------------------------------------------------------------
    Total Benefits:
     
        Qualitative.................    Decreased amount of time that U.S.
                                        citizens or LPRs are separated from
                                         their family members with approved
                                          provisional waivers, leading to
                                          reduced financial and emotional
                                            hardship for these families.
                                        Decreased amount of time that U.S.
                                        citizens or LPRs are separated from
                                         their family members with approved
                                          provisional waivers, leading to
                                          reduced financial and emotional
                                            hardship for these families.
    ----------------------------------------------------------------------------------------------------------------
                                        Provisional waiver applicants will
                                          receive advance notice of USCIS'
                                       decision to provisionally waive their
                                        3- or 10-year unlawful presence bar
                                        before they leave the United States
                                         for their immigrant visa interview
                                         abroad. This offers applicants and
                                       their family members the certainty of
                                       knowing that the applicants have been
                                        provisionally approved for a waiver
                                          before departing from the United
                                                      States.
                                        Provisional waiver applicants will
                                          receive advance notice of USCIS'
                                       decision to provisionally waive their
                                        3- or 10-year unlawful presence bar
                                        before they leave the United States
                                         for their immigrant visa interview
                                         abroad. This offers applicants and
                                       their family members the certainty of
                                       knowing that the applicants have been
                                        provisionally approved for a waiver
                                          before departing from the United
                                                      States.
    ----------------------------------------------------------------------------------------------------------------
                                          Federal Government will achieve
                                             increased efficiencies by
                                            streamlining immigrant visa
                                         processing for applicants seeking
                                        inadmissibility waivers of unlawful
                                                     presence.
                                          Federal Government will achieve
                                             increased efficiencies by
                                            streamlining immigrant visa
                                         processing for applicants seeking
                                        inadmissibility waivers of unlawful
                                                     presence.
    ----------------------------------------------------------------------------------------------------------------
    Note: The cost estimates in this table are contingent upon Form I-601A filing projections as well as the
      discount rates applied for monetized values.
    
    II. Background
    
    A. Legal Authority
    
        Under section 212(a)(9)(B) of the INA, 8 U.S.C. 1182(a)(9)(B), an 
    individual who has accrued more than 180 days of unlawful presence in 
    the United States and then leaves the United States generally is 
    inadmissible for a specified period after the individual's departure. 
    The inadmissibility period lasts for 3 years if the individual accrued 
    more than 180 days but less than 1 year of unlawful presence, and for 
    10 years if the individual accrued 1 year or more of unlawful presence. 
    Under INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v), the 
    Secretary of Homeland Security (``Secretary'') has discretion to waive 
    this ground of inadmissibility if the Secretary finds that denying the 
    applicant's admission to the United States would result in extreme 
    hardship to the applicant's U.S. citizen or LPR spouse or parent. INA 
    section 103, 8 U.S.C. 1103, gives the Secretary the authority to 
    prescribe regulations for the administration and enforcement of the 
    immigration and naturalization laws of the United States.
    
    B. Proposed Rule
    
        On July 22, 2015, DHS published a notice of proposed rulemaking to 
    expand eligibility for provisional waivers of certain grounds of 
    inadmissibility based on the accrual of unlawful presence to all 
    individuals who are statutorily eligible for a waiver
    
    [[Page 50247]]
    
    of such grounds, are seeking a provisional waiver in connection with an 
    immigrant visa application, and meet other conditions. See proposed 
    rule, Expansion of Provisional Waivers of Inadmissibility, 80 FR 43338 
    (July 22, 2015) (2015 Proposed Rule).
        In response to the proposed rule, DHS received 606 public comments 
    from individuals, advocacy groups, attorneys, organizations, schools, 
    and local governments. Some of the comments were submitted through mass 
    mailing or email campaigns or petitions expressing support for or 
    opposition to the provisional waiver process in general. Opinions on 
    the proposed rule varied, but the majority of commenters (472) were 
    supportive of the proposed expansion. Many of these commenters made 
    additional suggestions to improve the provisional waiver process 
    overall. These suggestions are discussed below.
        DHS received 82 comments opposed to the proposed rule. In many of 
    these instances, these commenters argued that the Executive Branch 
    lacks the legal authority to implement the proposed changes. Commenters 
    indicated that expanding the program amounted to an abuse of authority. 
    One commenter asserted that the rule exceeded the Secretary's authority 
    under the INA and that provisionally approving a waiver before an 
    individual departs from the United States based on a family unity 
    rationale was arbitrary and capricious. Some commenters also believed 
    that the provisional waiver process would grant legal status to 
    individuals unlawfully present in the United States. Others asked that 
    USCIS prioritize the lawful immigrant community over those unlawfully 
    present in the United States.
        DHS received 52 comments that either did not clearly express an 
    opinion in support of or in opposition to the proposed rule or that did 
    not address any aspect of the proposed rule. For example, a few 
    commenters provided input on immigrants in general, immigration policy, 
    the Federal government, and other government programs that are not 
    within the scope of this rulemaking. Because these comments address 
    nothing in the proposed rule, DHS provides no specific response to 
    them.
        Unless mentioned in this supplementary information, commenters did 
    not make any specific suggestions for changes to the provisional waiver 
    process based on what DHS outlined in the proposed rule. In preparing 
    this final rule, DHS counted and considered each public comment and 
    other relevant materials that appear in the Federal Docket Management 
    System (FDMS). All comments received may be reviewed in FDMS at http://www.regulations.gov, under docket number USCIS-2012-0003.
    
    C. Final Rule
    
        This final rule adopts most of the regulatory amendments set forth 
    in the proposed rule except for a few provisions, as explained in this 
    preamble. The rationale for the proposed rule and the reasoning 
    provided in its preamble remain valid with respect to the regulatory 
    amendments adopted. Additionally, DHS has made several changes to the 
    regulatory provisions based on the comments received. This final rule 
    also adopts the technical regulatory amendments suggested in the 
    proposed rule without change. This final rule does not address comments 
    seeking changes in U.S. laws, regulations, or agency policies that are 
    unrelated to the provisional waiver process or the clarifying technical 
    amendments to 8 CFR 212.7. This final rule does not change the 
    procedures or policies of other DHS components or Federal agencies, or 
    resolve issues outside the scope of this rulemaking.
    
    III. Public Comments on the Proposed Rule
    
    A. Summary of Public Comments
    
        The 60-day public comment period for the proposed rule ended on 
    September 21, 2015. The majority of comments came from supporters who 
    agreed that the proposed rule would promote family unity and reduce the 
    length of time family members would be separated. Many considered 
    family unity as one of the core principles of U.S. immigration law and 
    stated that this rulemaking benefitted the United States overall, not 
    just families. Several commenters made suggestions for simplifying the 
    provisional waiver process overall.
        Some commenters identified themselves as U.S. citizens or LPR 
    family members (including children) who were worried about their 
    relatives' immigration situations and about being separated from their 
    family members for prolonged time periods. Numerous commenters who 
    urged DHS to implement the proposed expansion shared personal stories 
    and described hardships they have experienced or may experience upon 
    being separated from family members. Many reasoned that keeping 
    families together assists the U.S. economy and otherwise strengthens 
    the country, because many individuals who are undocumented work hard, 
    pay taxes, and are concerned about the well-being of their children. 
    Many asserted that the 3- and 10-year unlawful presence bars and other 
    bars to admissibility are inhumane and cruel and that these laws need 
    to change. Backlogs in the immigration system, such as visa backlogs, 
    were raised generally by commenters as additional reasons for 
    supporting this rule. Some commenters also believed that expanding 
    eligibility for the provisional waiver process would streamline the 
    waiver adjudication process for applicants inadmissible based on the 
    accrual of unlawful presence in the United States, thereby making the 
    immigrant visa process faster and more predictable. Finally, a 
    commenter expressed the belief that expanding the process would reduce 
    burdens on DOS.
        Several commenters who disagreed with the proposed expansion argued 
    that the Executive Branch lacks the legal authority to implement the 
    proposed changes without congressional approval. Others stated that the 
    proposed expansion is the Administration's way of circumventing 
    existing laws, creating amnesty, and favoring those who are unlawfully 
    present over lawful immigrants. Some considered the measure to be 
    unconstitutional, arbitrary, and capricious. A number of commenters 
    asserted that the expansion would reward law breakers, further illegal 
    immigration, and lead to system abuse and fraud, as well as additional 
    social problems.
        For several commenters, unifying families was not an acceptable 
    justification for the proposed rule. Some asserted that it is not the 
    U.S. Government's place to accommodate people who are in the country 
    illegally. Those commenters expressed that family separation is a 
    natural consequence of an individual's choice to break the law. Others 
    asserted that expanding the process would undermine the Nation's 
    sovereignty, economy, security, and proper law enforcement efforts. 
    Overall, these commenters believed that the expansion would erode the 
    integrity of the immigration system.
        Many of the commenters identified themselves as lawful immigrants 
    or relatives of lawful immigrants. Some of these individuals voiced 
    disappointment over the proposed expansion and indicated that the 
    Federal Government's money and resources would be better invested in 
    assisting U.S. citizens and lawful immigrants. These commenters 
    emphasized that they have complied with the law, paid taxes, and worked 
    hard toward maintaining lawful status,
    
    [[Page 50248]]
    
    and they asked DHS to first assist individuals who are lawfully present 
    in the United States to obtain immigrant status by fixing the 
    backlogged immigration system before fixing processes that benefit 
    those who are unlawfully present in the United States.
        One commenter suggested that local governments, rather than the 
    Federal Government, should control the immigration process. This 
    commenter indicated that local governments are in a better position to 
    consider the costs of immigration measures to local communities. Other 
    commenters considered the rule unnecessary and current regulations 
    sufficient to address the immigrant community's needs. One commenter 
    asked that DHS restrict and not expand the provisional waiver process 
    in order to better control the U.S. border.
        DHS has reviewed all of the public comments received in response to 
    the proposed rule and addresses those comments focused on aspects in 
    this final rule. DHS's responses to these comments are grouped by 
    subject area, with a focus on the most common issues and suggestions 
    raised by the commenters. The response to each comment also explains 
    whether DHS made any changes to address the comment. DHS received no 
    comments on the following topics addressed in the proposed rule: 
    Inclusion of Diversity Visa selectees; inclusion of derivative spouses 
    and children; the rejection criteria; the validity of an approved 
    provisional waiver; and automatic revocation.
    
    B. Legal Authority
    
        A number of commenters questioned the Department's legal authority 
    to expand the provisional waiver process. Some commenters expressed the 
    view that the rule constituted an attempt to circumvent Congress, and 
    that it was as an effort in disregard of current immigration laws, 
    including case law. Some commenters also stated that the proposed rule 
    exceeded DHS authorities in implementing the Secretary's directive to 
    expand eligibility for provisional waivers. Others asserted that the 
    rule was arbitrary and capricious.
        DHS disagrees that this rule's expansion of the provisional waiver 
    process exceeds the Secretary's legal authority. As a preliminary 
    matter, the Federal Government has plenary authority over immigration 
    and naturalization, and Congress may enact legislation establishing 
    immigration law and policy. See, e.g., Arizona v. United States, 132 S. 
    Ct. 2492, 2498 (2012) (``The Government of the United States has broad, 
    undoubted power over the subject of immigration and the status of 
    aliens. This authority rests, in part, on the National Government's 
    constitutional power to `establish [a] uniform Rule of Naturalization,' 
    and its inherent power as sovereign to control and conduct relations 
    with foreign nations.'' (citations omitted)); see also Fiallo v. Bell, 
    430 U.S. 787, 792 (1977). The Executive Branch, which includes DHS, 
    implements the laws passed by Congress, and Congress has specifically 
    charged the Secretary with the administration and enforcement of the 
    immigration and naturalization laws. See 6 U.S.C. 112, 202(3)-(5); INA 
    section 103, 8 U.S.C. 1103(a). The Secretary is also authorized to 
    promulgate rules and ``perform such other acts as he deems necessary 
    for carrying out his authority.'' INA section 103(a)(3), 8 U.S.C. 
    1103(a)(3). The Secretary thus has broad discretion to determine the 
    most effective way to administer the immigration laws. See, e.g., Jean 
    v. Nelson, 727 F.2d 957, 965 (11th Cir. 1984) (``The principal 
    responsibility for immigration matters in the Executive branch resides 
    with the [Secretary], who is the beneficiary of broad grants of 
    discretion under the statute.''), aff'd, 472 U.S. 846 (1985); Narenji 
    v. Civiletti, 617 F.2d 745, 747 (D.C. Cir. 1979) (observing that the 
    INA ``need not specifically authorize each and every action taken by 
    the Attorney General [(now Secretary of Homeland Security)], so long as 
    his action is reasonably related to the duties imposed upon him'').
        More specifically, Congress provided for a waiver of the 3- and 10-
    year unlawful presence bars in INA section 212(a)(9)(B)(v), 8 U.S.C. 
    1182(a)(9)(B)(v), for individuals who can demonstrate extreme hardship 
    to certain qualifying relatives. That section does not restrict the 
    manner in which eligible individuals can seek such waivers. In 2013, 
    DHS created the provisional waiver process to allow certain immigrant 
    visa applicants who are immediate relatives of U.S. citizens to 
    provisionally apply for waivers before they leave the United States for 
    their consular interviews. The creation of this process was merely a 
    procedural change that addressed the manner in which eligible 
    individuals can apply for the statutorily provided waiver of 
    inadmissibility. See Provisional Unlawful Presence Waivers of 
    Inadmissibility for Certain Immediate Relatives, 78 FR 536, 541 (Jan. 
    3, 2013) (``2013 Rule''). This rule expands on that process by simply 
    expanding the pool of individuals eligible to apply for provisional 
    waivers to statutorily eligible individuals in all immigrant visa 
    classifications, subject to certain conditions. See new 8 CFR 212.7(e). 
    Like the 2013 Rule, this Final Rule, therefore, does not create new 
    waiver authority; it implements an existing authority conferred by 
    Congress.\4\
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        \4\ Neither conditioning a waiver on an individual's departure 
    from the United States nor allowing advance application for a waiver 
    is novel. For example, DHS regulations at 8 CFR 212.2(j) have long 
    allowed an individual who is subject to a removal order to seek 
    consent to reapply for admission under INA section 
    212(a)(9)(A)(iii), 8 U.S.C. 1182(a)(9)(A)(iii), while the individual 
    is in the United States and before the individual departs the United 
    States. A grant of consent to reapply for admission, like the 
    provisional waiver, is conditioned on the individual's eventual 
    departure from the United States. See 8 CFR 212.2(j). DHS and former 
    Immigration and Naturalization Service (INS) regulations have 
    permitted advance applications for consent to reapply for admission 
    under INA section 212(a)(9)(A)(iii), 8 U.S.C. 1182(a)(9)(A)(iii) 
    since at least 1969. See, e.g., 34 FR 9061 (1969); 36 FR 11635 
    (1971). The INS also permitted advance waiver applications under 
    former INA section 212(c), 8 U.S.C. 1182(c) (repealed 1996). See 8 
    CFR 212.3(b); 52 FR 11620 (1987).
    ---------------------------------------------------------------------------
    
        Finally, DHS disagrees with commenters who stated that the proposed 
    rule is arbitrary and capricious. The commenters appear to assert that 
    DHS exceeds its statutory authority by violating the substantive 
    requirements of the Administrative Procedure Act (APA). See 5 U.S.C. 
    706(2)(A). A rulemaking may be considered arbitrary and capricious 
    under the APA when an agency's action is unreasonable, unsound, or not 
    explained, or when it fails to demonstrate that the agency has 
    considered the circumstances surrounding its action. An agency must 
    examine the relevant data and articulate a satisfactory explanation for 
    its action, including a rational connection between the facts found and 
    the choice made. See Motor Vehicle Mfrs. ***'n of the United States, 
    Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43 (1983). DHS 
    has made clear throughout the proposed rule and this preamble all of 
    the factors that were considered in putting forth the proposal and has 
    articulated how the expansion of the provisional waiver process is tied 
    to the purposes of the immigration laws and efficient operation of the 
    immigration system. See generally 2015 Proposed Rule, 80 FR 43339. DHS 
    believes that the assertions of these commenters are unfounded.
    
    C. Eligibility for the Provisional Waiver
    
    1. Categories of Eligible Individuals
        Many commenters believed that expanding eligibility for the 
    provisional waiver as proposed to all statutorily
    
    [[Page 50249]]
    
    eligible individuals--including beneficiaries in family-sponsored and 
    employment-based preference categories, as well as Diversity Visa 
    selectees--would offer benefits to the U.S. Government and facilitate 
    legal immigration and family unity. These commenters indicated that the 
    expansion would reduce the fear of many immigrants, who otherwise may 
    worry that they would be unable to reunite with their families after 
    leaving the United States to have their immigrant visas processed 
    abroad.
        Accordingly, some commenters suggested that all individuals with 
    approved immigrant visa petitions should be able to participate in the 
    provisional waiver process, regardless of whether they are located 
    inside or outside the United States. Other commenters asked that USCIS 
    allow individuals with approved immigrant visa petitions to apply for 
    provisional waivers regardless of their priority dates, especially if 
    they had been present in the United States for many years.
        Many commenters asked that DHS allow the following categories of 
    individuals to apply for provisional waivers: (1) Married or unmarried 
    individuals over the age of 21 with U.S. citizen parents; (2) 
    individuals over the age of 21, whether single or married; (3) spouses 
    of U.S. citizens without a criminal record and with good standing in 
    their communities; (4) parents of U.S. citizens with approved 
    petitions; (5) sons-in-law and daughters-in-law; and 6) self-
    petitioning widows and widowers of U.S. citizens. Some commenters urged 
    DHS to prioritize relatives of U.S. citizens over relatives of LPRs. 
    Some commenters asked that DHS focus not only on families, but also on 
    sponsored employees, corporations, and self-sponsored business owners. 
    Others requested that DHS include the following categories of 
    individuals in the provisional waiver process: (1) Those with 
    nonimmigrant investor-type visas; (2) well-educated professionals; (3) 
    those with approved immigrant visa petitions but without any family in 
    the United States; (4) spouses of nonimmigrant visa holders who are 
    beneficiaries of approved employment-based immigrant visa petitions 
    (Forms I-140); and (5) those with pending immigrant visa petitions. 
    Many commenters requested that USCIS adjust an individual's status to 
    that of an LPR upon approval of the waiver; others mistakenly believed 
    that USCIS already does so.
        The Secretary is authorized to waive the 3- and 10-year unlawful 
    presence bars for individuals seeking admission to the United States as 
    immigrants if they can show that the refusal of admission would result 
    in extreme hardship to a qualifying U.S. citizen or LPR spouse or 
    parent, and provided that the applicant warrants a favorable exercise 
    of discretion. See INA section 212(a)(9)(B)(v), 8 U.S.C. 
    1182(a)(9)(B)(v). With this final rule, DHS is allowing all individuals 
    who are statutorily eligible for an immigrant visa and who meet the 
    legal requirements for a waiver under INA section 212(a)(9)(B)(v), 8 
    U.S.C. 1182(a)(9)(B)(v), to seek a provisional waiver in accordance 
    with new 8 CFR 212.7(e). Consistent with the current provisional waiver 
    process, provisional waivers are available only to those who are 
    present in the United States, who must apply for immigrant visas at 
    U.S. embassies or consulates abroad, and who at the time of the 
    immigrant visa interview may be inadmissible based on the accrual of 
    unlawful presence under INA section 212(a)(9)(B)(i), 8 U.S.C. 
    1182(a)(9)(B)(i).
        DHS can only expand the pool of individuals eligible for this 
    process to those who fall within one of the current statutory immigrant 
    visa classifications and who meet the requirements for the unlawful 
    presence waiver described in INA section 212(a)(9)(B)(v), 8 U.S.C. 
    1182(a)(9)(B)(v). DHS cannot expand eligibility to those who are not 
    statutorily eligible for such waivers under current law. Similarly, DHS 
    cannot change who is statutorily eligible to adjust status in the 
    United States. Intending immigrants who are present in the United 
    States but ineligible to adjust status must depart the United States 
    and obtain their immigrant visas through consular processing abroad; 
    approval of a provisional waiver does not change this requirement. See 
    INA sections 104, 202(a)(1)(B), 211, 221, 222 and 245; 8 U.S.C. 1104, 
    1152(a)(1)(B), 1181, 1201, 1202, and 1255. See generally 8 CFR part 
    245; 22 CFR part 42.
        As indicated above, many commenters asked that DHS expand the 
    provisional waiver process to include additional categories of 
    individuals, including sons or daughters who have approved immigrant 
    visa petitions and are over the age of 21 or married. To clarify, in 
    the proposed rule, DHS sought to include all beneficiaries of approved 
    immigrant visa petitions who are statutorily eligible for a waiver of 
    the 3- and 10-year unlawful presence bars, regardless of age, marital 
    status, or immigration status. Individuals with approved immigrant visa 
    petitions, including sons and daughters (married or unmarried) of U.S. 
    citizens, as well as those who have been selected to participate in the 
    Diversity Visa program, may participate in the provisional waiver 
    process provided they meet the requirements stated in 8 CFR 212.7(e). 
    Consistent with its statutory authority under INA section 
    212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v), DHS will no longer limit 
    the provisional waiver process to certain immediate relatives of U.S. 
    citizens.\5\
    ---------------------------------------------------------------------------
    
        \5\ Additionally, as explained throughout this preamble, DHS is 
    changing other eligibility and ineligibility criteria in response to 
    comments received.
    ---------------------------------------------------------------------------
    
    2. Backlogged Immigrant Visa Categories and Eligibility for Interim 
    Benefits
        A large number of commenters suggested that individuals with 
    approved family-sponsored and employment-based immigrant visa petitions 
    should be permitted to obtain provisional waivers if immigrant visas 
    are unavailable to them as a result of visa backlogs.\6\ Many 
    commenters expressed frustration with the current legal immigration 
    system and lengthy wait times for visas, which separate families and 
    hinder the professional development of many individuals and their 
    family members. Some commenters said it was unfair that DHS and USCIS 
    seek to implement rules that assist persons who came to the United 
    States unlawfully. These commenters indicated that those who came 
    legally to the United States but who cannot obtain immigrant status as 
    a result of visa backlogs should also receive assistance. These 
    commenters opined that those who immigrate lawfully, such as 
    employment-based immigrants, bring economic advantages to the United 
    States.
    ---------------------------------------------------------------------------
    
        \6\ In particular, some commenters requested that DHS include 
    married and unmarried sons and daughters of U.S. citizens for whom 
    an immigrant visa is unavailable due to immigrant visa backlogs.
    ---------------------------------------------------------------------------
    
        A few commenters suggested that individuals with or without 
    approved provisional waivers should be given interim benefits while 
    awaiting visa availability. For example, one commenter requested that 
    USCIS grant deferred action and work authorization to undocumented 
    individuals who are U.S.-educated professionals in nursing, medical, or 
    engineering fields, are the beneficiaries of family-sponsored 
    petitions, and have displayed good conduct. Another commenter requested 
    that an individual with an approved provisional waiver be issued a 
    temporary Social Security number and renewable work authorization for a 
    minimum of 3 years. A commenter asked USCIS to provide work 
    authorization and advance parole documents to enable travel outside of,
    
    [[Page 50250]]
    
    and facilitate return to, the United States to lawfully present 
    individuals affected by visa backlogs if they otherwise complied with 
    the immigration laws. Another commenter believed that USCIS should 
    grant parole in place to an individual with an approved immigrant visa 
    petition and provisional waiver, if the petitioner's or beneficiary's 
    disability makes travel abroad hazardous due to a condition covered by 
    the Americans with Disabilities Act (ADA).\7\ After receiving parole in 
    place, the commenter reasoned, the beneficiary could adjust his or her 
    status in the United States and would not have to risk the petitioner's 
    or the beneficiary's life by traveling. Finally, many commenters 
    expressed the desire that individuals be able to adjust status in the 
    United States if they have an approved petition or provisional waiver.
    ---------------------------------------------------------------------------
    
        \7\ See Americans with Disabilities Act of 1990 (Pub. L. 101-
    336), as amended.
    ---------------------------------------------------------------------------
    
        DHS acknowledges the concerns many intending immigrants face due to 
    backlogs in available immigrant visa numbers. As noted, DHS is 
    broadening the availability of the provisional waiver process to 
    include all statutorily eligible individuals--including all 
    beneficiaries of family-sponsored and employment-based immigrant visa 
    petitions, as well as Diversity Visa selectees--who have a qualifying 
    relative under the statute for purposes of the extreme hardship 
    determination. Beneficiaries in family-sponsored and employment-based 
    preference categories, as well as Diversity Visa immigrants, are 
    subject to annual numerical limits that have been set by Congress. See 
    INA sections 201, 202 and 203; 8 U.S.C. 1151, 1152 and 1153. Neither 
    DOS nor DHS can change the number of visas that Congress allocates for 
    particular immigrant visa categories, nor can they alter the statutory 
    requirements for adjustment of status in the United States. Addressing 
    those recommendations would require legislative changes.
        DHS does not consider it appropriate to make an application for a 
    provisional waiver, or the approval of such an application, a basis for 
    granting interim benefits, including an advance parole document or 
    employment authorization. In particular, because an approved immigrant 
    visa petition and a waiver of inadmissibility do not independently 
    confer any immigration status or otherwise afford lawful presence in 
    the United States, neither may typically serve as the basis for interim 
    benefits. Furthermore, issuance of interim benefits to individuals who 
    are granted provisional waivers may encourage them to postpone their 
    timely departures from the United States to pursue their immigrant visa 
    applications. The purpose of the provisional waiver process is not to 
    prolong an applicant's unlawful presence in the United States. Rather, 
    the purpose is to facilitate the applicant's departure to attend an 
    immigrant visa interview abroad so that they may complete their 
    application process for an immigrant visa. Moreover, providing an 
    advance parole document is unnecessary because the premise of the 
    provisional waiver process is that the applicant, if eligible, will 
    depart the United States and return with an immigrant visa.
        The provisional waiver process is designed to encourage unlawfully 
    present individuals to leave the United States, attend their immigrant 
    visa interviews, and return to the United States legally to reunite 
    with their U.S. citizen or LPR family members. Having an approved 
    provisional waiver helps facilitate immigrant visa issuance at DOS, 
    streamlines both the waiver and the immigrant visa processes, and 
    reduces the time that applicants are separated from their U.S. citizen 
    or LPR family members, thus promoting family unity.
    3. Individuals Outside the United States
        A few commenters asked DHS to extend eligibility for provisional 
    waivers to individuals outside the United States. Commenters argued 
    that such individuals should be eligible for provisional waivers 
    because they are often relatives of U.S. citizens with approved 
    immigrant visa petitions and have immigrant visa applications pending 
    with DOS. These commenters also suggested that those who need waivers 
    of the 3- and 10-year unlawful presence bars but are now outside the 
    United States should not be disadvantaged by their decision to 
    ultimately comply with the immigration laws by departing the United 
    States. The commenters believed that DHS should apply the same rules 
    and processes to all visa applicants.
        DHS understands the difficulties that U.S. citizens and LPRs face 
    when their family members are outside the United States and are 
    attempting to navigate the immigrant visa process. DHS notes, however, 
    that individuals who are outside the United States and are eligible for 
    waivers of the 3- and 10-year unlawful presence bars may apply for such 
    waivers through the preexisting Form I-601 waiver process. Considering 
    the existence of the Form I-601 waiver process, DHS continues to 
    believe that expanding the provisional waiver process to those 
    individuals abroad would duplicate steps already incorporated in the 
    DOS immigrant visa process and would not be an efficient use of agency 
    resources. DHS thus will not adopt the suggestion.\8\
    ---------------------------------------------------------------------------
    
        \8\ For additional discussion relating to this suggestion, 
    please refer to the 2013 Rule, 78 FR at 543.
    ---------------------------------------------------------------------------
    
        However, to alleviate some of the delays in waiver processing for 
    those filing from abroad, USCIS has implemented the centralization of 
    Form I-601 application filings, which no longer requires that 
    applicants schedule ``waiver filing'' appointments with a U.S. embassy 
    or consulate. Instead, Form I-601 applicants now file the waiver 
    application directly with USCIS at a centralized location in the United 
    States, thereby significantly reducing the time they are required to be 
    outside the United States. By centralizing the processing of these 
    waiver applications at locations in the United States, USCIS is able to 
    better ensure that applications are processed in the most efficient 
    manner possible.
    4. Extreme Hardship
        Several commenters requested that USCIS clarify the term ``extreme 
    hardship'' in guidance or regulations. Others suggested that the 
    proposed rule was legally flawed because DHS had not promulgated the 
    requirements for establishing extreme hardship. Commenters requested 
    that DHS clearly define the term and apply it fairly, including by 
    considering the financial, emotional, and other harmful effects that 
    result from separating families. Commenters believed that clarifying 
    the term would lead to greater consistency in adjudication. One 
    commenter asked that extreme hardship examples be included in guidance 
    and in the provisional waiver application form.
        Many commenters also requested that USCIS ease the extreme hardship 
    standard and its documentary requirements, including, for example, by 
    presuming extreme hardship in certain cases involving vulnerable 
    families. Commenters often referenced the interim rule at 8 CFR 
    240.64(d) \9\ as a precedent that DHS could consider for purposes of 
    adopting one or more presumptions of extreme hardship. Commenters also 
    urged USCIS to extend the special accommodation for beneficiaries of 
    immigrant visa petitions described in INA section 204(l), 8 U.S.C. 
    1154(l), to self-petitioning widows and widowers of U.S. citizens when 
    such
    
    [[Page 50251]]
    
    citizens died before filing immigrant visa petitions on behalf of their 
    spouses. INA section 204(l), 8 U.S.C. 1154(l), allows for immigrant 
    visa petitions and related applications to be approved or reinstated 
    for certain beneficiaries despite the death of the petitioner or 
    principal beneficiary. Under the special accommodation, the death of 
    the petitioner or principal beneficiary is treated as the ``functional 
    equivalent'' of a finding of extreme hardship in cases where he or she 
    could have served as a ``qualifying relative'' for purposes of waiving 
    the 3- and 10-year unlawful presence bars.\10\
    ---------------------------------------------------------------------------
    
        \9\ This regulation was promulgated under section 203 of the 
    Nicaraguan Adjustment and Central American Relief Act (NACARA), 
    Public Law 105-100 (Nov. 19, 1997).
        \10\ See USCIS AFM Chapter 10.21(c)(5), https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/Chapter10-21.html. This guidance 
    does not refer to the accommodation as a ``presumption,'' even 
    though it has similar effect to a presumption. As with any finding 
    of extreme hardship, the accommodation permits, but does not 
    require, approval of the waiver, which remains a matter of USCIS 
    discretion.
    ---------------------------------------------------------------------------
    
        Other commenters believed that if an applicant demonstrates some or 
    all of the factors listed in the Secretary's November 20, 2014 
    memorandum directing expansion of the provisional waiver program \11\--
    such as those relating to the age of the affected U.S. citizen or LPR 
    spouse or parent, length of U.S. residence, and family ties in the 
    United States--USCIS should apply a rebuttable presumption and find 
    that the applicant has established extreme hardship. Having a 
    presumption, some believed, would ease the burden of proof for many 
    families. Some commenters also indicated that it was often very 
    difficult for families to produce documentation to demonstrate extreme 
    hardship, which the commenters viewed as an unnecessary barrier.
    ---------------------------------------------------------------------------
    
        \11\ See Memorandum from Jeh Charles Johnson, Secretary of 
    Homeland Security to L[eacute]on Rodr[iacute]guez, Director, USCIS, 
    Expansion of the Provisional Waiver Program (Nov. 20, 2014), 
    available at https://www.dhs.gov/sites/default/files/publications/14_1120_memo_i601a_waiver.pdf.
    ---------------------------------------------------------------------------
    
        A considerable number of commenters suggested alternative standards 
    of extreme hardship or asked that DHS include additional individuals as 
    qualifying relatives for purposes of the extreme hardship 
    determination. For example, commenters believed that USCIS should find 
    extreme hardship if: (1) The applicant has a U.S. citizen spouse or 
    parent; (2) a family is separated, or a child is separated from his or 
    her parents; (3) family members lose their jobs because they have to 
    travel to other countries; (4) the applicant's child would experience 
    extreme hardship; (5) the applicant's sibling would experience extreme 
    hardship; (6) the applicant would trigger the 3- or 10-year unlawful 
    presence bar when departing the United States; (7) the applicant has 
    waited for a prolonged period for an immigrant visa to become 
    available; (8) the applicant is the beneficiary of an employment-based 
    immigrant visa petition (because beneficiaries of such petitions may 
    not have U.S. citizen or LPR qualifying relatives); \12\ or (9) the 
    applicant has family in the United States but not a qualifying 
    relative. Many commenters also requested that DHS give consideration to 
    extreme hardship that would be suffered by U.S. citizen or LPR sons and 
    daughters who are over the age of 21 or who are married.\13\ One 
    commenter requested that special consideration be given to those in 
    ``special situation[s]'' with respect to extreme hardship 
    determinations, even if they do not have qualifying relatives. That 
    commenter appeared to suggest that USCIS should create two 
    classifications for assessing waiver eligibility, one for individuals 
    with LPR family members and one for individuals without LPR family 
    members. A few commenters asked DHS to eliminate the extreme hardship 
    standard altogether. Many such commenters felt that taxpaying citizens 
    who are ``good people'' should be able to keep their families together 
    and that it is unfair to separate families simply because certain 
    individuals cannot establish extreme hardship.
    ---------------------------------------------------------------------------
    
        \12\ Some commenters asked USCIS to accept a showing of extreme 
    hardship to an employer, but such consideration is not authorized by 
    the statutory waiver authority at INA section 212(a)(9)(B)(v), 8 
    U.S.C. 1182(a)(9)(B)(v).
        \13\ In many instances, it was unclear whether commenters were 
    requesting additional eligibility criteria for provisional waivers 
    in general, or whether they were requesting that DHS consider 
    additional classes of individuals to be qualifying relatives for 
    purposes of the extreme hardship determination.
    ---------------------------------------------------------------------------
    
        One commenter suggested that USCIS should contact experts and 
    declarants claiming personal knowledge of a qualifying relative's 
    hardship claim by mail in order to verify that such claims are 
    legitimate. This commenter also suggested that DHS should only consider 
    hardship flowing from a qualifying relative's decision to remain in the 
    United States and not the hardship such a relative may confront if he 
    or she chooses to depart with the inadmissible applicant. That 
    commenter viewed as ``hypothetical'' the hardship that may result if 
    the qualifying relative chooses to depart, but as ``verifi[able]'' the 
    hardship resulting from the choice of a qualifying relative to stay 
    behind in the United States. According to the commenter, considering 
    hypothetical hardship in another country is unnecessary and too 
    difficult to document.
        Other commenters proposed that DHS provide in its regulations a 
    list of consequences or other factors typically associated with removal 
    that adjudicators would consider when making extreme hardship 
    recommendations. These commenters suggested that such a list of factors 
    be drawn from historical data and precedent decisions. The commenters 
    further suggested that such a list would be analogous to what is 
    provided in the regulation for NACARA \14\ applicants at 8 CFR 
    1240.58(b). The commenters considered such an approach invaluable to 
    achieving consistent adjudication of all waiver applications under the 
    INA, not just provisional waiver applications. The commenters also 
    believed that such an approach would reduce the incentive for 
    individuals to make conclusory and unsupported allegations when 
    applying for provisional waivers. According to these commenters, the 
    lack of such a regulation was a ``capricious political benefit'' to 
    those unlawfully present in the United States.
    ---------------------------------------------------------------------------
    
        \14\ See note 8, supra.
    ---------------------------------------------------------------------------
    
        Finally, another commenter requested that USCIS establish specific 
    questions related to hardship so that USCIS officers can quickly 
    determine whether a threshold level of extreme hardship has been 
    demonstrated.\15\ As an alternative to an extreme hardship showing, 
    another commenter suggested that USCIS permit applicants to explain why 
    they violated U.S. immigration laws. Another commenter indicated that 
    it was important to train officers in this area.
    ---------------------------------------------------------------------------
    
        \15\ The commenter cited the Application for Suspension of 
    Deportation or Special Rule Cancellation of Removal, Form I-881, 
    which contains a list of questions relating to factors considered 
    when evaluating extreme hardship as drawn from the NACARA special 
    rule regulations at 8 CFR 1240.58(b).
    ---------------------------------------------------------------------------
    
        DHS cannot adopt suggestions to revise the statutory requirements 
    for waivers of the unlawful presence grounds of inadmissibility under 
    INA section 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B). The authorizing 
    statute requires the applicant to show extreme hardship to a U.S. 
    citizen or LPR spouse or parent, and DHS does not have the authority to 
    change the statutory requirement. DHS also cannot approve a provisional 
    waiver application if the applicant has not demonstrated extreme 
    hardship to a qualifying relative as required by the INA.
        DHS also declines in this rulemaking to define extreme hardship for 
    purposes of the provisional waiver (or more generally), or to create a 
    rebuttable
    
    [[Page 50252]]
    
    presumption related to such determinations. The INA does not define 
    extreme hardship. The Board of Immigration Appeals (BIA) has stated 
    that extreme hardship is not a definable term of fixed and inflexible 
    meaning, and that establishing extreme hardship is dependent upon the 
    facts and circumstances of each case.\16\ See Matter of Cervantes-
    Gonzalez, 22 I&N Dec. 560, 565 (BIA 1999) (describing factors to be 
    considered in extreme hardship analysis), aff'd, Cervantes-Gonzales v. 
    INS, 244 F.3d 1001 (9th Cir. 2001). Accordingly, DHS will continue to 
    make extreme hardship determinations for purposes of provisional 
    waivers on a case-by-case basis, consistent with agency guidance. On 
    October 7, 2015, USCIS posted proposed guidance on extreme hardship 
    determinations for public comment on its Web site at www.uscis.gov.\17\ 
    USCIS also continually trains its officers on all aspects of the 
    provisional waiver adjudication, including the extreme hardship 
    determination.
    ---------------------------------------------------------------------------
    
        \16\ The BIA and immigration judges, both under the jurisdiction 
    of the Department of Justice, Executive Office for Immigration 
    Review (EOIR), also make extreme hardship determinations for 
    purposes of adjudicating applications for extreme hardship waivers 
    under INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v), and 
    for other immigration benefits and relief from exclusion, 
    deportation, or removal.
        \17\ The proposed guidance on extreme hardship determinations 
    can be viewed at https://www.uscis.gov/sites/default/files/USCIS/Outreach/Policy%20Review/DRAFT_Extreme_Hardship_Policy_Manual_Guidance_for_public_comment.pdf.
    
    ---------------------------------------------------------------------------
    
        Finally, DHS cannot extend the special accommodation for 
    beneficiaries of immigrant visa petitions described in INA section 
    204(l), 8 U.S.C. 1154(l), to self-petitioning widows and widowers of 
    U.S. citizens when such citizens died prior to filing immigrant visa 
    petitions on behalf of their spouses. Under this section, USCIS may 
    approve, or reinstate the approval of, an immigrant visa petition 
    despite the death of the petitioner or principal beneficiary, if at 
    least one beneficiary was residing in the United States when the 
    relative died and continues to reside in the United States. If USCIS 
    approves or reinstates the approval of the immigrant visa petition, 
    USCIS also has discretion to act favorably on ``any related 
    applications.'' INA section 204(l), 8 U.S.C. 1154(l). When Congress 
    enacted INA section 204(l), 8 U.S.C. 1154(l), USCIS interpreted ``any 
    related applications'' to include waiver applications that a 
    beneficiary would have been able to file had the qualifying relative 
    not died. But that section applies, by its express terms, only to an 
    individual who ``immediately prior to the death of his or her 
    qualifying relative was . . . the beneficiary of a pending or approved 
    petition.'' If the deceased qualifying relative had not filed an 
    immigrant visa petition at the time of death, there is no ``pending or 
    approved'' petition to which INA section 204(l), 8 U.S.C. 1154(l), can 
    apply. Nor can there be said to be any ``related applications.''
    5. Applicants With Other Grounds of Inadmissibility
        A large number of commenters supporting this rule stated that U.S. 
    immigration laws are overly harsh, and that these laws harm families of 
    U.S. citizens and LPRs. In general, many commenters asked DHS to waive 
    certain grounds of inadmissibility for which the INA does not currently 
    provide relief for immigrants.\18\ Other commenters asked DHS to 
    consider expanding the provisional waiver process to cover additional 
    grounds of inadmissibility for which waivers are statutorily available. 
    These commenters specifically referenced the waiver for fraud and 
    willful misrepresentation under INA section 212(i), 8 U.S.C. 1182(i), 
    or alien smuggling under INA section 212(d)(11), 8 U.S.C. 1182(d)(11). 
    Some commenters recommended that when an applicant is granted a 
    provisional waiver based on a finding of extreme hardship, the 
    Department should conclude that the applicant has established extreme 
    hardship for other types of waiver applications that apply the same 
    standard. One commenter suggested that the standard for the waiver to 
    overcome inadmissibility for alien smuggling is lower than the extreme 
    hardship standard \19\ and that USCIS should thus consider the lower 
    standard as encompassed by the extreme hardship standard. The commenter 
    thus believed that the waiver to overcome the alien smuggling 
    inadmissibility ground could easily be incorporated into the 
    provisional waiver process. Overall, commenters suggested that DHS 
    allow individuals to apply for all available waivers of inadmissibility 
    through the provisional waiver process, which the commenters believed 
    would further streamline the waiver and immigrant visa processes.\20\
    ---------------------------------------------------------------------------
    
        \18\ For example, some commenters asked for a waiver for falsely 
    claiming U.S. citizenship under INA section 212(a)(6)(C)(ii), 8 
    U.S.C. 1182(a)(6)(C)(ii). Another commenter asked that all parents 
    who illegally reentered after having been previously deported should 
    be pardoned, because, according to the commenter, most parents enter 
    to reunite with their children and family. Many commenters felt that 
    children are being punished for the actions of their parents. Other 
    commenters asked that the inadmissibility ground under INA section 
    212(a)(9)(C), 8 U.S.C. 1182(a)(9)(C), be changed and the penalty 
    reduced to a lesser inadmissibility period for which a waiver is 
    available. All of these requests are outside of the scope of this 
    rulemaking, which solely concerns the provisional waiver of the 
    grounds of inadmissibility described in INA section 212(a)(9)(B)(i), 
    8 U.S.C. 1182(a)(9)(B)(i), as authorized by INA section 
    212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v).
        \19\ DHS may waive the ground of inadmissibility described in 
    INA section 212(a)(6)(E)(i), 8 U.S.C. 1182(a)(6)(E)(i), for 
    humanitarian purposes, to assure family unity, or when it is 
    otherwise in the public interest, provided the individual meets all 
    other requirements. See INA section 212(d)(11), 8 U.S.C. 
    1182(d)(11).
        \20\ Of the commenters who asked DHS to expand the provisional 
    waiver process to include waivers of other grounds of 
    inadmissibility, many requested that DHS specifically include the 
    Application for Permission to Reapply for Admission into the United 
    States After Deportation or Removal, Form I-212.
    ---------------------------------------------------------------------------
    
        Several commenters requested that the provisional waiver process be 
    available to individuals who are barred for unlawful reentry after 
    previous immigration violations under INA section 212(a)(9)(C), 8 
    U.S.C. 1182(a)(9)(C). Others suggested making the process available to 
    individuals who are inadmissible under that section if they are spouses 
    of U.S. citizens or LPRs. A few commenters asked that certain 
    categories of individuals receive special treatment.\21\ For example, a 
    commenter requested that DHS create a special waiver for Deferred 
    Action for Childhood Arrivals (DACA) recipients. Others asked that DHS 
    add special provisions to benefit the relatives of active members or 
    veterans of the U.S. Armed Forces.
    ---------------------------------------------------------------------------
    
        \21\ It was often unclear if the commenters sought 
    implementation of new waivers or an expansion of the provisional 
    waiver to include these grounds of inadmissibility.
    ---------------------------------------------------------------------------
    
        DHS considered these comments but did not adopt the suggested 
    changes. DHS cannot waive grounds of inadmissibility for those who are 
    not authorized to receive waivers under the immigration laws. 
    Implementation of these suggestions thus would have exceeded DHS's 
    statutory authority. Other suggestions did not support a principal goal 
    of the provisional waiver process, which is to streamline immigrant 
    visa issuance for individuals who are eligible for an immigrant visa 
    and otherwise admissible to the United States \22\ but whose family 
    members would experience extreme hardship due to application of certain 
    unlawful presence grounds of inadmissibility. As explained in the 2013 
    Rule, DOS consular officers are charged with
    
    [[Page 50253]]
    
    determining whether individuals are eligible for issuance of immigrant 
    visas, including whether they are affected by one or more grounds of 
    inadmissibility. Expanding the provisional waiver process to other 
    grounds of inadmissibility would introduce additional complexity and 
    inefficiencies into the immigrant visa process, create potential 
    backlogs, and likely delay and adversely affect the processing of 
    immigrant visas by DOS. Furthermore, USCIS generally assesses waiver 
    applications for inadmissibility due to fraud, misrepresentation, or 
    criminal history through an in-person interview at a USCIS field 
    office. Because DOS already conducts a thorough in-person interview as 
    part of the immigrant visa process, DHS believes that this type of 
    review would be unnecessarily duplicative of DOS's efforts.
    ---------------------------------------------------------------------------
    
        \22\ Upon departure from the United States to attend a consular 
    interview, an individual no longer would be inadmissible as a result 
    of being present in the United States without admission or parole 
    under INA section 212(a)(6)(A)(i), 8 U.S.C. 1182(a)(6)(A)(i), or for 
    lacking proper immigrant entry documents under INA section 
    212(a)(7)(A), 8 U.S.C. 1182(a)(7)(A).
    ---------------------------------------------------------------------------
    
        Because the text of the statute forecloses the issue, DHS also 
    rejects the suggestion to expand the provisional waiver process to 
    include individuals who are inadmissible based on a return (or 
    attempted return) without admission after previous immigration 
    violations under INA section 212(a)(9)(C)(i), 8 U.S.C. 
    1182(a)(9)(C)(i). The relevant forms of relief for individuals who are 
    inadmissible under that section are found at INA section 
    212(a)(9)(C)(ii) and (iii), 8 U.S.C. 1182(a)(9)(C)(ii) and (iii). See 
    Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006). Under the statute, 
    waivers under INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v), 
    cannot be used to relieve an applicant from inadmissibility under INA 
    section 212(a)(9)(C)(i), 8 U.S.C. 1182(a)(9)(C)(i).
    6. Reason-to-Believe Standard
        Under current regulations, USCIS must deny a provisional waiver 
    application if USCIS has ``reason to believe'' that the applicant may 
    be subject to a ground of inadmissibility other than unlawful presence 
    at the time of the immigrant visa interview abroad (``reason-to-believe 
    standard''). 8 CFR 212.7(e)(4)(i).\23\ Commenters asked DHS to clarify 
    the reason-to-believe standard and to train officers \24\ so that they 
    properly apply the standard. Many argued that USCIS often applies the 
    standard too rigidly by denying applications on mere suspicion, rather 
    than actually adjudicating the relevant inadmissibility concerns 
    consistent with applicable law relating to these grounds.
    ---------------------------------------------------------------------------
    
        \23\ That regulation reads: ``Ineligible aliens. Notwithstanding 
    paragraph (e)(3) of this section, an alien is ineligible for a 
    provisional unlawful presence waiver under paragraph (e) of this 
    section if: (i) USCIS has reason to believe that the alien may be 
    subject to grounds of inadmissibility other than unlawful presence 
    under section 212(a)(9)(B)(i)(I) or (II) of the Act at the time of 
    the immigrant visa interview with the Department of State.'' 8 CFR 
    212.7(e)(4)(i).
        \24\ USCIS has continually trained its officers on all aspects 
    of the provisional waiver adjudication, including how to determine 
    whether individuals may be subject to additional inadmissibility 
    grounds at the time of the immigrant visa interview. However, since 
    USCIS is removing the reason-to-believe standard as a basis for 
    eligibility, we will no longer be training officers on application 
    of this specific standard.
    ---------------------------------------------------------------------------
    
        Commenters also urged DHS to expand the scope of the January 24, 
    2014 field guidance memorandum on the reason-to-believe standard.\25\ 
    Commenters specifically asked DHS to direct USCIS officers to consider 
    the totality of the evidence when assessing whether other grounds of 
    inadmissibility apply to an applicant, and to issue Requests for 
    Evidence (RFEs) related to such grounds prior to denying a provisional 
    waiver application for mere suspicion that such grounds apply. 
    Commenters criticized the lack of issuance of RFEs or Notices of Intent 
    to Deny (NOIDs), as well as USCIS' use of standard denial template 
    language when denying a provisional waiver application under the 
    reason-to-believe standard. Commenters stated that the use of these 
    denial templates implies that USCIS does not consider the evidence that 
    applicants submit to show that they are in fact not inadmissible on 
    other grounds. In addition, the commenters stated that the templates 
    did not provide sufficient information to indicate why USCIS determined 
    it had reason to believe that the applicant would be inadmissible at 
    the time of the immigrant visa interview, thus preventing applicants 
    from addressing the agency's concerns upon reapplication. Commenters 
    requested that USCIS instruct its officers to clearly articulate the 
    fact specific circumstances that led them to deny an application for 
    ``reason to believe'' that the applicant is inadmissible on other 
    grounds.\26\ A couple of commenters suggested that DHS make exceptions 
    to the reason-to-believe standard for certain circumstances or classes 
    of individuals.
    ---------------------------------------------------------------------------
    
        \25\ See USCIS Memorandum, Guidance Pertaining to Applicants for 
    Provisional Unlawful Presence Waivers (Jan. 24, 2014), available at 
    http://www.uscis.gov/sites/default/files/files/nativedocuments/2014-0124_Reason_To_Believe_Field_Guidance_Pertaining_to_Applicants_for_Provisional_Unlawful_Presence_Waivers-final.pdf.
        \26\ These commenters suggested adding specific regulatory text 
    in 8 CFR 212.7(e)(4) and 8 CFR 212.7(e)(9) that would require 
    officers to consider the totality of the circumstances and to 
    recount particular facts of the case when denying waiver 
    applications under the reason-to-believe standard.
    ---------------------------------------------------------------------------
    
        Considering the confusion that has resulted from application of the 
    reason-to-believe standard, DHS is eliminating the standard from the 
    provisional waiver process in this final rule. Under the 2013 Rule, an 
    approved provisional waiver would take effect if DOS subsequently 
    determined that the applicant was ineligible for an immigrant visa only 
    on account of the 3- or 10-year unlawful presence bar under INA section 
    212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i). Accordingly, DHS had 
    originally incorporated the reason-to-believe standard in the 2013 Rule 
    to preclude individuals from obtaining provisional waivers if they may 
    have triggered other grounds of inadmissibility. DHS reasoned, in part, 
    that because the goal of the provisional waiver process was to 
    streamline immigrant visa processing, it would be of little benefit to 
    applicants or to DHS to grant provisional waivers to applicants who 
    would eventually be denied immigrant visas based on other grounds of 
    inadmissibility.
        Since the implementation of the provisional waiver program, 
    however, stakeholders have raised concerns over the application of the 
    reason-to-believe standard. Among other things, DHS understands that 
    the standard causes confusion for applicants, as evidenced by the 
    comments submitted to this rule. Despite the Department's repeated 
    attempts to explain the reason-to-believe standard, for example, 
    commenters continue to erroneously believe that when USCIS denies a 
    provisional waiver application under the reason-to-believe standard, 
    the agency has actually made an inadmissibility determination with 
    respect to the relevant other ground(s) of inadmissibility.
        Alternatively, as explained in the 2013 Rule, it would be 
    counterproductive for USCIS to make other inadmissibility 
    determinations during the adjudication of provisional waiver 
    applications, given DOS's role in the immigrant visa process. It is 
    DOS, and not USCIS, that generally determines admissibility under INA 
    section 212(a), 8 U.S.C. 1182(a), as part of the immigrant visa 
    process, which includes an in-depth, in-person interview conducted by 
    DOS consular officers. Moreover, it is U.S. Customs and Border 
    Protection (CBP) that ultimately determines admissibility at the time 
    that individuals seek admission at a port of entry. See INA sections 
    204(e), 221(h); 8 U.S.C. 1154(e), 1201(h). It is thus generally not 
    USCIS's role to determine whether an individual applying for an 
    immigrant visa, or for admission as an immigrant at a U.S. port of 
    entry, is admissible to the United States. Any assessment by USCIS with 
    respect to other grounds of inadmissibility would be, at best,
    
    [[Page 50254]]
    
    advisory in nature and would likely cause even greater confusion for 
    applicants.
        These considerations have prompted DHS to revisit the current 
    approach. In this final rule, DHS has decided to eliminate the reason-
    to-believe standard as a basis for denying provisional waiver 
    applications. Accordingly, when adjudicating such applications, USCIS 
    will only consider whether extreme hardship has been established and 
    whether the applicant warrants a favorable exercise of discretion. 
    However, although this final rule eliminates the reason-to-believe 
    standard, the final rule retains the provision that provides for the 
    automatic revocation of an approved provisional waiver application if 
    the DOS consular officer ultimately determines that the applicant is 
    ineligible for the immigrant visa based on other grounds of 
    inadmissibility. See 8 CFR 212.7(e)(14)(i). DHS thus cautions and 
    reminds individuals that even if USCIS approves a provisional waiver 
    application, DOS may still find the applicant inadmissible on other 
    grounds at the time of the immigrant visa interview. If DOS finds the 
    applicant ineligible for the immigrant visa or inadmissible on grounds 
    other than unlawful presence, the approval of the provisional waiver 
    application is automatically revoked. In such cases, the individual may 
    again apply for a waiver of the unlawful presence ground of 
    inadmissibility, in combination with any other waivable grounds of 
    inadmissibility, by using the Form I-601 waiver process. As in all 
    discretionary matters, DHS also has the authority to deny provisional 
    waiver applications as a matter of discretion even if the applicant 
    satisfies the eligibility criteria. See 8 CFR 212.7(e)(2)(i). 
    Additionally, USCIS may reopen and reconsider its decision to approve 
    or deny a provisional waiver before or after the waiver becomes 
    effective if it is determined that the decision was made in error. See 
    8 CFR 212.7(e)(13) and 8 CFR 212.7(a)(4)(v).
        As has always been the case, DHS will continue to uphold the 
    integrity and security of the provisional waiver process by conducting 
    full background and security checks to assess whether an individual may 
    be a threat to national security or public safety. If the background 
    check or the individual's immigration file reveals derogatory 
    information, including a criminal record, USCIS will analyze the 
    significance of the information and may deny the provisional waiver 
    application as a matter of discretion.\27\
    ---------------------------------------------------------------------------
    
        \27\ Under current USCIS policy, officers adjudicating 
    provisional waiver applications may issue a Request for Evidence 
    (RFE) to address deficiencies in the extreme hardship showing or to 
    resolve issues that may impact their exercise of discretion. USCIS 
    will retain this practice. To maintain the streamlined nature of the 
    program, USCIS retains the 30-day response time to any RFE issued in 
    connection with provisional waiver applications. See USCIS 
    Memorandum, Standard Timeframe for Applicants to Respond to Requests 
    for Evidence Issued in Relation to a Request for a Provisional 
    Unlawful Presence Waiver, Form I-601A (Mar. 1, 2013), available at 
    http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2013/I-601A_30-Day_RFE_PM.pdf.
    ---------------------------------------------------------------------------
    
        Finally, the extreme hardship and discretionary eligibility 
    assessments made during a provisional waiver adjudication could be 
    impacted by additional grounds of inadmissibility and other information 
    that was not known and therefore not considered during the 
    adjudication. Accordingly, USCIS is not bound by these determinations 
    when adjudicating subsequent applications filed by the same applicant, 
    such as an application filed to waive grounds of inadmissibility, 
    including a waiver of the unlawful presence grounds of inadmissibility. 
    In other words, because separate inadmissibility grounds and material 
    information not before USCIS at the time of adjudication may alter the 
    totality of the circumstances present in an individual's case, a prior 
    determination that an applicant's U.S. citizen or LPR spouse would 
    suffer extreme hardship if the applicant were refused admission (and 
    that the applicant merits a provisional waiver as a matter of 
    discretion) does not dictate that USCIS must make the same 
    determination in the future, although the factors and circumstances 
    underlying the prior decision may be taken into account when reviewing 
    the cases under the totality of the circumstances.
    7. Individuals With Scheduled Immigrant Visa Interviews
        The proposed rule would have made certain immediate relatives of 
    U.S. citizens ineligible for provisional waivers if DOS had initially 
    acted before January 3, 2013 to schedule their immigrant visa 
    interviews. DHS had also proposed to make other applicants ineligible 
    if DOS initially acted before the effective date of this final rule to 
    schedule their immigrant visa interviews. See 80 FR 43338, 43343 (July 
    22, 2015). These date restrictions were intended to make the 
    provisional waiver process more operationally manageable and to avoid 
    processing delays in the immigrant visa process. Commenters suggested 
    that DHS either eliminate these restrictions or apply the January 3, 
    2013 restriction to all potential applicants.\28\ Some commenters 
    argued that DHS should eliminate these restrictions altogether for 
    humanitarian reasons. Other commenters pointed out that the cutoff 
    dates will cause preference-based immigrants difficulties with their 
    priority dates.
    ---------------------------------------------------------------------------
    
        \28\ One commenter also asked that DHS allow individuals to 
    reopen their ``visa cases'' and to file applications for provisional 
    waivers. The commenter explained that many individuals let their DOS 
    National Visa Center (NVC) cases lapse because they cannot leave to 
    seek their visas and because ameliorative immigration legislation 
    had failed to pass. The commenter asked that the DOS NVC reopen 
    cases for those who have approved petitions so that they may apply 
    for provisional waivers. DHS will not adopt this suggestion. DOS--
    and not DHS--will continue to determine whether to reopen immigrant 
    visa application cases. Any visa applicant seeking to reopen such a 
    case should consult with DOS. An individual may file a provisional 
    waiver if he or she meets the provisional waiver requirements, as 
    outlined in 8 CFR 212.7(e).
    ---------------------------------------------------------------------------
    
        In response to comments, and after consulting with DOS, DHS is 
    eliminating the restrictions based on the date that DOS acted to 
    schedule the immigrant visa interview. USCIS will adjust its processing 
    of petitions and applications so that neither DOS nor USCIS will be 
    adversely affected by the elimination of this restriction. Please note, 
    however, that elimination of these date restrictions does not alter 
    other laws and regulations relating to the availability of immigrant 
    visas. Applicants will still be unable to obtain immigrant visas until 
    an immigrant visa number is available based on the applicant's priority 
    date. Applicants will need to act promptly, once DOS notifies them that 
    they can file their immigrant visa application. If applicants do not 
    apply within one year of this notice, DOS has authority to terminate 
    their registration for an immigrant visa. See INA section 203(g), 8 
    U.S.C. 1153(g); see also 22 CFR 42.8(a). That action will also result 
    in automatic revocation of the approval of the related immigrant visa 
    petition. 8 CFR 205.1(a)(1).
        In such a situation, applicants will have two options for 
    continuing to pursue a provisional waiver. One option is for an 
    applicant to ask DOS to reinstate the registration pursuant to 22 CFR 
    42.83(d). If DOS reinstates the registration, approval of the immigrant 
    visa petition is also reinstated. Once such an applicant has paid the 
    immigrant visa processing fee for the related immigrant visa 
    application, the applicant can apply for a provisional waiver. A second 
    option is for the
    
    [[Page 50255]]
    
    relevant immigrant visa petitioner to file a new immigrant visa 
    petition with USCIS. If USCIS approves the new immigrant visa petition, 
    the beneficiary could then apply for the provisional waiver after 
    paying the immigrant visa processing fee based on the new petition if 
    otherwise eligible.
    8. Individuals in Removal Proceedings
        Commenters requested that DHS eliminate restrictions that prevent 
    individuals in removal proceedings from seeking provisional waivers. 
    Under the current regulations, those in removal proceedings may apply 
    for and be granted provisional waivers only if their removal 
    proceedings have been and remain administratively closed. See 8 CFR 
    212.7(e)(4)(v). Rather than excluding individuals whose removal 
    proceedings are not administratively closed from obtaining provisional 
    waivers, commenters asserted that DHS should find a way to allow them 
    to apply for such waivers. Commenters suggested that once an individual 
    in removal proceedings has a provisional waiver, he or she should be 
    able to move to either dismiss or terminate proceedings or seek 
    cancellation of the Notice to Appear (NTA) \29\ so that he or she may 
    depart to seek consular processing of an immigrant visa application. 
    According to commenters, such a process would also ensure that an 
    individual who is issued an NTA while his or her provisional waiver 
    application is pending does not automatically become ineligible for the 
    waiver.
    ---------------------------------------------------------------------------
    
        \29\ Notices to Appear (NTAs) are the charging documents that 
    DHS issues to individuals to initiate removal proceedings.
    ---------------------------------------------------------------------------
    
        Another commenter noted that immigration courts are severely 
    backlogged and that individuals in removal proceedings often have to 
    wait months or years before their cases can be scheduled or heard. This 
    commenter asserted that requiring the case to be administratively 
    closed before an individual may apply for the provisional waiver places 
    an undue burden on the courts and also creates significant delays. 
    Commenters generally believed that it would be more efficient if 
    individuals were able to pursue provisional waivers and request 
    termination or dismissal of proceedings upon approval of the waivers. 
    They requested that the regulations and the provisional waiver 
    application (Form I-601A) clarify that removal proceedings may be 
    resolved by termination, dismissal, or a grant of voluntary departure 
    if the provisional waiver is approved. Commenters believed that such a 
    solution would simplify the provisional waiver process, improve 
    efficiency in the immigration court system, and further the spirit of 
    expanding the process to all individuals who are statutorily eligible 
    for waivers of the unlawful presence ground of inadmissibility at INA 
    section 212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i).
        Due to agency efficiency and resource concerns, DHS declines to 
    adopt the above recommendations. On November 20, 2014, the Secretary 
    directed the Department's immigration components--USCIS, ICE, and CBP--
    to exercise prosecutorial discretion, when appropriate, as early as 
    possible in proceedings to ensure that DHS's limited resources are 
    devoted to the greatest degree possible to the pursuit of enforcement 
    priorities.\30\ Prosecutorial discretion applies not only to the 
    decision to issue, serve, file, or cancel an NTA, but also to other 
    broad ranges of discretionary measures.\31\ To promote docket 
    efficiency and to ensure that finite enforcement resources are used 
    effectively, ICE carefully reviews cases pending before the Department 
    of Justice's Executive Office for Immigration Review (EOIR) to ensure 
    that all cases align with the agency's enforcement and removal 
    policies. As such, once an NTA is issued, ICE attorneys are directed to 
    review the case, at the earliest opportunity, for the potential 
    exercise of prosecutorial discretion.\32\ The Department of Justice 
    (DOJ) likewise instructs its immigration judges to use available 
    docketing tools to ensure fair and timely resolution of cases, and to 
    ask ICE attorneys at master calendar hearings whether ICE is seeking 
    dismissal or administrative closure of a case.\33\ In general, those 
    who are low priorities for removal and are otherwise eligible for LPR 
    status may be able to apply for provisional waivers. Among other 
    things, ICE may agree to administratively close immigration proceedings 
    for individuals who are eligible to pursue a provisional waiver and are 
    not currently considered a DHS enforcement priority. ICE also works to 
    facilitate, as appropriate, the timely termination or dismissal of 
    administratively closed removal proceedings once USCIS approves a 
    provisional waiver.
    ---------------------------------------------------------------------------
    
        \30\ See Memorandum from Secretary Jeh Charles Johnson, DHS, 
    Policies for Apprehension, Detention, and Removal of Undocumented 
    Immigrants (Nov. 20, 2014), available at https://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf.
        \31\ See id.
        \32\ See Memorandum from Riah Ramlogan, Acting Principal Legal 
    Advisor, U.S. Immigration and Customs Enforcement (ICE), Guidance 
    Regarding Cases Pending Before EOIR Impacted by Secretary Johnson's 
    Memorandum Entitled Policies for the Apprehension, Detention and 
    Removal Of Undocumented Immigrants (Apr. 6, 2015), available at 
    https://www.ice.gov/sites/default/files/documents/FOIA/2015/guidance_eoir_johnson_memo.pdf.
        \33\ See Memorandum from Brian M O'Leary, Chief Immigration 
    Judge, EOIR, Operating Policies and Procedures Memorandum 15-01: 
    Hearing Procedures for Cases Covered by New DHS Priorities and 
    Initiatives (Apr. 6, 2015), available at https://www.justice.gov/eoir/pages/attachments/2015/04/07/15-01.pdf.
    ---------------------------------------------------------------------------
    
        DHS believes the aforementioned steps being undertaken by ICE and 
    EOIR to determine whether cases should be administratively closed 
    effectively balances the commenters' provisional waiver eligibility 
    concerns and agency resources in considering the exercise of 
    prosecutorial discretion. Consequently, this rule has not changed the 
    provisional waiver process and will not permit individuals in active 
    removal proceedings to apply for or receive provisional waivers, unless 
    their cases are administratively closed. The Department believes that 
    current processes provide ample opportunity for eligible applicants to 
    seek a provisional waiver, while improving the allocation of government 
    resources and ensuring national security, public safety, and border 
    security.
    9. Individuals Subject to Final Orders of Removal, Deportation, or 
    Exclusion
        Commenters asked DHS to provide eligibility for provisional waivers 
    to individuals who are subject to final orders of removal, deportation, 
    or exclusion. Commenters asserted that many of these individuals may 
    already request consent to reapply for admission, under 8 CFR 212.2(j), 
    by filing an Application for Permission to Reapply for Admission into 
    the United States After Deportation or Removal, Form I-212, before 
    departing the United States for immigrant visa processing. Upon 
    receiving such consent, the individual's order of removal, deportation, 
    or exclusion would no longer bar him or her from obtaining an immigrant 
    visa abroad. One commenter reasoned that providing eligibility to 
    spouses and children with removal orders would permit more families to 
    stay together.
        Many commenters suggested that USCIS allow individuals to file 
    provisional waiver applications ``concurrently'' \34\ with Form I-212 
    applications for consent to reapply for admission. These commenters 
    believed that requiring separate or consecutive processing of the two 
    applications when a domestic process already exists for
    
    [[Page 50256]]
    
    both is unnecessary, inefficient, and a waste of USCIS' resources. In 
    support of their argument, commenters also referenced 2009 USCIS 
    procedures for the adjudication of Form I-601 applications for 
    adjudication officers stationed abroad. Under these procedures, an 
    individual whose Form I-601 application is granted would also normally 
    obtain approval of a Form I-212 application, as both forms require that 
    the applicant show that he or she warrants a favorable exercise of 
    discretion.
    ---------------------------------------------------------------------------
    
        \34\ Filing two or more immigration benefit requests together is 
    often referred to as ``concurrent'' filing.
    ---------------------------------------------------------------------------
    
        As a preliminary matter, DHS notes that requiring the filing of 
    separate Forms I-601A and I-212 simply reflects the fact that they are 
    intended to address two separate grounds of inadmissibility, each with 
    different waiver eligibility requirements. In response to the comments, 
    however, DHS has amended the rule to allow individuals with final 
    orders of removal, deportation, or exclusion to apply for provisional 
    waivers if they have filed a Form I-212 application seeking consent to 
    reapply for admission and such an application has been conditionally 
    approved.
        Anyone who departs the United States while a final order is 
    outstanding is considered to have executed that order. See INA section 
    101(g), 8 U.S.C. 1101(g); 8 CFR 241.7. The execution of such an order 
    renders the individual inadmissible to the United States for a period 
    of 5-20 years under INA section 212(a)(9)(A), 8 U.S.C. 1182(a)(9)(A). 
    Certain individuals, however, may seek consent to reapply for admission 
    to the United States before the period of inadmissibility has expired. 
    See INA section 212(a)(9)(A)(iii), 8 U.S.C. 1182(a)(9)(A)(iii). DHS 
    regulations provide a process for those in the United States to apply 
    for such consent by filing a Form I-212 application before departing 
    the United States. See 8 CFR 212.2(j). As with the provisional waiver 
    process, the pre-departure approval of a Form I-212 application is 
    conditioned on the applicant subsequently departing the United States. 
    Thus, if an individual who is inadmissible under INA section 
    212(a)(9)(A), 8 U.S.C. 1182(a)(9)(A), obtains a conditional approval of 
    his or her Form I-212 application while in the United States and 
    thereafter departs to attend the immigrant visa interview abroad, he or 
    she generally is no longer inadmissible under that section at the time 
    of the immigrant visa interview and can be issued an immigrant visa.
        Given that an applicant still has to demonstrate visa eligibility, 
    including admissibility, at the time of the immigrant visa interview 
    and that DHS has decided to eliminate the reason-to-believe standard, 
    the Department believes the goals of the provisional waiver process are 
    supported by making it available to those with final orders only if 
    they already have conditionally approved a Form I-212 application. The 
    final rule thus extends eligibility for provisional waivers to such 
    individuals. See 8 CFR 212.7(e)(4)(iv). Such an individual, however, 
    must have the conditionally approved Form I-212 application at the time 
    of filing the provisional waiver application. See 8 CFR 
    212.7(e)(4)(iv). USCIS will deny a provisional waiver application if 
    the applicant's Form I-212 application has not yet been conditionally 
    approved at the time the individual files his or her provisional waiver 
    application. Additionally, if during the immigrant visa interview the 
    consular officer finds that the applicant is inadmissible on other 
    grounds that have not been waived, the approved provisional waiver will 
    be automatically revoked.\35\ See 8 CFR 212.7(e)(14)(i).
    ---------------------------------------------------------------------------
    
        \35\ In such cases, however, the approved Form I-212 application 
    will generally remain valid and the individual may apply for any 
    available waivers, including waiver of the 3- and 10-year bars, by 
    filing a Form I-601 application after the immigrant visa interview.
    ---------------------------------------------------------------------------
    
        Finally, DHS notes that approval of Forms I-601A and I-212 does not 
    waive inadmissibility under INA section 212(a)(9)(C), 8 U.S.C 
    1182(a)(9)(C), for having returned to the United States without 
    inspection and admission or parole after a prior removal or prior 
    unlawful presence. See INA section 212(a)(9)(C)(ii), 8 U.S.C 
    1182(a)(9)(C)(ii); Matter of Briones, 24 I&N Dec. 355 (BIA 2007); 
    Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006).\36\
    ---------------------------------------------------------------------------
    
        \36\ Although DHS received no comments on the issue, DHS has 
    also amended the regulatory text to provide additional clarity with 
    respect to provisional waiver eligibility for certain individuals 
    who have previously been removed. Prior to the changes made by this 
    rule, 8 CFR 212.7(e)(4)(vii) provided that an alien who is ``subject 
    to reinstatement of a prior removal order under section 241(a)(5) of 
    the Act'' is not eligible for a provisional waiver. DHS recognizes 
    that this regulatory text was unclear with respect to whether it 
    applies to (1) an individual who is a ``candidate'' for 
    reinstatement of removal or (2) an individual whose prior removal 
    order has already been reinstated. To avoid confusion, DHS has 
    amended the regulatory text in 8 CFR 212.7(e)(4)(v) to clarify that 
    the prior removal order must actually be reinstated for an 
    individual to be ineligible to apply for a provisional waiver under 
    this provision. DHS notes, however, that USCIS is likely to deny as 
    a matter of discretion a provisional waiver application when records 
    indicate that the applicant is inadmissible under INA 212(a)(9)(C), 
    8 U.S.C 1182(a)(9)(C), for having unlawfully returned to the United 
    States after a prior removal or prior unlawful presence. Moreover, 
    even if such an individual obtains approval for a provisional 
    waiver, such approval will be automatically revoked if he or she is 
    ultimately determined to be inadmissible under that section.
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    10. Individuals Granted Voluntary Departure
        Commenters requested that DHS address how voluntary departure under 
    INA section 240B, 8 U.S.C. 1229c, affects provisional waiver 
    eligibility. One commenter asked that USCIS provide eligibility for 
    provisional waivers to individuals who have been granted voluntary 
    departure but who failed to depart as required. Another commenter 
    requested that regulations and instructions should clarify that an 
    individual in compliance with an order of voluntary departure is 
    considered by USCIS: (a) Not to be currently in removal proceedings; 
    and (b) not subject to a final order of removal.
        DHS has determined that individuals granted voluntary departure 
    will not be eligible for provisional waivers. First, if an individual 
    obtains voluntary departure while in removal proceedings, the 
    immigration judge is required by law to enter an alternate order of 
    removal. See 8 CFR 1240.26(d). DHS cannot execute the alternate order 
    of removal during the voluntary departure period because such an order 
    is not yet in effect. But if the individual does not depart as required 
    under the order of voluntary departure, the alternate order of removal 
    automatically becomes fully effective without any additional 
    proceeding. See 8 CFR 1240.26(d). Thus, an individual who fails to 
    leave as required under a grant of voluntary departure will have an 
    administratively final order of removal, and will thus be ineligible 
    for a provisional waiver. See INA section 240B(d)(1), 8 U.S.C. 
    1229c(d)(1); 8 CFR 212.7(e)(4)(iv). Under current law, removal 
    proceedings for such individuals are considered to have ended when the 
    grant of voluntary departure, with an alternate removal order, becomes 
    administratively final. See INA sections 101(a)(47), 240(c)(1)(A), 8 
    U.S.C. 1101(a)(47), 1229(a)(c)(1)(A); 8 CFR 241.1, 1003.39, 1241.1; 
    Matter of Shih, 20 I&N Dec. 697 (BIA 1993).
        Second, a fundamental premise for a grant of voluntary departure is 
    that the individual who is granted voluntary departure intends to leave 
    the United States as required. See INA section 240B(b)(1)(D), 8 U.S.C. 
    1229c(b)(1)(D); Dada v. Mukasey, 554 U.S. 1, 18 (2008). Allowing an 
    individual whose voluntary departure period has not expired to apply 
    for a provisional waiver would suggest that the individual is excused 
    from complying with the order of voluntary departure. This result would 
    contradict the purpose of voluntary departure--allowing the subject to 
    leave promptly
    
    [[Page 50257]]
    
    without incurring the future inadmissibility that results from removal. 
    For these reasons, DHS did not modify the rule to allow those with 
    grants of voluntary departure to apply for provisional waivers.
    11. Applications for Lawful Permanent Resident (LPR) Status
        Under current regulations, an individual is ineligible for a 
    provisional waiver if he or she has an Application to Register 
    Permanent Residence or Adjust Status, Form I-485 (``application for 
    adjustment of status''), pending with USCIS, regardless of whether the 
    individual is in removal proceedings. See 8 CFR 212.7(e)(4)(viii). One 
    commenter suggested that USCIS should allow those seeking LPR status to 
    file applications for adjustment of status concurrently with 
    provisional waiver applications, and that USCIS should hold such 
    applications for adjustment of status in abeyance until final 
    resolution of the provisional waiver applications. According to the 
    commenter, this would provide applicants present in the United States 
    the opportunity to obtain work authorization and to appeal any denial 
    of their provisional waiver applications. The commenter suggested that 
    upon approval of a provisional waiver application, USCIS should route 
    the application for adjustment of status to DOS for consular processing 
    of the applicant's immigrant visa abroad.
        DHS declines to adopt this suggestion. DHS believes that the 
    commenter misunderstands the purpose of filing applications for 
    adjustment of status. Those applications may be filed only by 
    individuals who are in the United States and meet the statutory 
    requirements for adjustment of status. If the applicant is eligible for 
    adjustment of status, approval of the application adjusts one's status 
    to that of an LPR in the United States, thus making it unnecessary to 
    go abroad and obtain an immigrant visa. For those who are in the United 
    States but are not eligible for adjustment of status, filing an 
    application for adjustment of status serves no legitimate purpose. 
    These individuals may not adjust status in the United States and must 
    instead depart the United States and seek an immigrant visa at a U.S. 
    consulate through consular processing. As these individuals are not 
    eligible for adjustment of status, DHS believes it is inappropriate to 
    invite them to submit applications seeking adjustment of status. 
    Moreover, DOS has its own application process for immigrant visas. 
    Thus, even if USCIS were to forward a denied application for adjustment 
    of status to DOS, that application would have no role in the 
    individual's application process with DOS. The individual would still 
    be required to submit the proper DOS immigrant visa application to seek 
    his or her immigrant visa.
    12. Additional Eligibility Criteria
        A few commenters suggested that DHS consider imposing restrictions 
    in the provisional waiver process, including by adding eligibility 
    criteria for provisional waivers, to better prioritize the classes of 
    individuals eligible to seek such waivers.\37\ Two commenters suggested 
    that the provisional waiver process should prioritize family members of 
    U.S. citizens over those of LPRs. One commenter suggested using level 
    of education as a factor for prioritizing applicants. This commenter 
    implied that applicants should be prioritized if they have advanced 
    degrees in science, technology, engineering, or mathematics fields. 
    Additional suggestions included: (1) Making provisional waivers easier 
    to obtain for couples who have children or have been married more than 
    two years; (2) limiting the number or percentage of waivers that are 
    made available to particular demographic groups within the United 
    States; (3) combining eligibility for provisional waivers with ``cross-
    chargeability'' rules in the INA; \38\ (4) prioritizing waivers for 
    those with high school degrees or who paid their taxes; (5) making 
    waivers available only to those who submit three letters of 
    recommendation from community members; and (6) making waivers available 
    only to those who can demonstrate proficiency with the English language 
    or who enroll in English language classes.
    ---------------------------------------------------------------------------
    
        \37\ Many of the commenters who suggested additional eligibility 
    criteria also believed that approved waivers should entitle 
    individuals to adjust to LPR status in the United States. Others 
    suggested that provisional waiver applicants should pay fines, and 
    some of these commenters believed that paying fines should allow 
    individuals to apply for adjustment of status as an alternative to 
    consular processing. Many of these commenters believed that such 
    changes would create efficiencies for both the applicant and the 
    government. As explained throughout this rule, DHS cannot change the 
    statutory requirements for adjustment of status in the United 
    States. Similarly, USCIS cannot impose fines as part of its filing 
    fees.
        \38\ Cross-chargeability is a concept employed by the INA in the 
    context of applying the INA's numerical limits on immigrant visas, 
    particularly the ``per country'' limitations that restrict the 
    percentage of such visa numbers that may go to nationals of any one 
    country. See generally INA sections 201, 202, and 203; 8 U.S.C. 
    1151, 1152, and 1153. Generally, an immigrant visa number that is 
    allotted to an individual is ``charged'' to the country of his or 
    her nationality. However, when application of the ``per country'' 
    limits may lead to family separation, the immigrant visa number 
    allotted to an individual may instead be charged to the country of 
    nationality of that individual's spouse, parent, or child. See INA 
    sections 202(b), 8 U.S.C. 1152(b); see also 22 CFR 42.12; Department 
    of State, 9 Foreign Affairs Manual (FAM) ch. 503.2-4A, available at 
    https://fam.state.gov/FAM/09FAM/09FAM050302.html (last visited Apr. 
    26, 2016).
    ---------------------------------------------------------------------------
    
        DHS declines to impose limitations or eligibility requirements for 
    obtaining provisional waivers beyond those currently provided by 
    regulation or statute. See INA section 212(a)(9)(B)(v), 8 U.S.C 
    1182(a)(9)(B)(v); 8 CFR 212.7. In the 2013 Rule, DHS originally limited 
    eligibility to seek such waivers through the provisional waiver process 
    to ensure operational feasibility and reduce the risk of creating 
    processing delays with respect to other petitions or applications filed 
    with USCIS or DOS. Considering the agency's capacity and the 
    efficiencies gained through the provisional waiver process, DHS now 
    believes that the provisional waiver process should be made available 
    to all statutorily eligible individuals. DHS is confident that the 
    expansion will reduce family separation and benefit the U.S. Government 
    as a whole, and that all agencies involved possess the operational 
    capacity to handle the additional casework.
    13. Bars for Certain Inadmissible Individuals
        Two commenters suggested that those who have committed crimes 
    should be precluded from participating in the provisional waiver 
    process, and another commenter cautioned DHS against adopting a 
    standard that would allow provisional waiver eligibility to the ``wrong 
    people,'' in the commenter's view, such as those who hate American 
    values and principles.\39\
    ---------------------------------------------------------------------------
    
        \39\ One of these commenters believed that, although accrual of 
    unlawful presence is not desirable, serious criminality and evidence 
    of violent behavior should be the deciding factors when determining 
    whether to separate families. Absent these factors, the commenter 
    reasoned, immediate family members of U.S. citizens and LPRs should 
    be allowed to remain with their loved ones in the United States 
    before consular processing.
    ---------------------------------------------------------------------------
    
        As indicated above, DHS continues to uphold the integrity and 
    security of the provisional waiver process by conducting full 
    background and security checks to assess whether an applicant may be a 
    threat to national security or public safety. If the background check 
    or the applicant's immigration file reveals derogatory information, 
    including a criminal record, USCIS analyzes the significance of the 
    information and may deny the provisional waiver application as a matter 
    of discretion.
    
    [[Page 50258]]
    
    D. Adjudication
    
    1. Requests for Evidence (RFEs) and Notices of Intent To Deny (NOIDs)
        Several commenters criticized USCIS' practice with respect to 
    issuing Requests for Evidence (RFEs) or Notices of Intent to Deny 
    (NOIDs) in cases where the agency ultimately denies provisional waiver 
    applications. Commenters criticized USCIS for both (1) issuing denials 
    without first submitting RFEs that provide applicants the opportunity 
    to correct deficiencies, and (2) issuing RFEs that failed to clearly 
    articulate the deficiencies in submitted applications. With respect to 
    the latter, commenters indicated that RFEs tend to use boilerplate 
    language that makes it impossible for applicants to respond 
    effectively, especially with respect to assessments of extreme hardship 
    or application of the reason-to-believe standard. Noting that terms 
    such as ``reason to believe'' and ``extreme hardship'' are vague, 
    commenters requested that USCIS issue detailed and case-specific RFEs 
    or NOIDs (rather than templates) when the agency intends to deny 
    applications, thereby giving applicants an opportunity to cure any 
    deficiencies before such denials are issued.\40\ Commenters also raised 
    concerns with the number of days that USCIS provides applicants to 
    respond to often lengthy RFEs, noting that, in most instances, USCIS 
    provides only 30 days for such responses.
    ---------------------------------------------------------------------------
    
        \40\ One commenter requested that USCIS ensure transparent 
    processing of applications. USCIS is committed to providing 
    processing information on its adjudication processes by including 
    information on the form and its instructions. USCIS also intends to 
    include a section in the USCIS Policy Manual on provisional waivers.
    ---------------------------------------------------------------------------
    
        As provided in 8 CFR 212.7(e)(8), and notwithstanding 8 CFR 
    103.2(b)(16), USCIS may deny a provisional waiver without issuing an 
    RFE or NOID. USCIS, however, is committed to issuing RFEs to address 
    missing and critical information that relates to extreme hardship or 
    that may affect how USCIS exercises its discretion. USCIS officers also 
    have the discretion to issue RFEs whenever the officer believes that 
    additional evidence would aid in the adjudication of an application. 
    Due to the streamlined nature of the program, USCIS currently provides 
    applicants only 30 days to respond to an RFE in such cases.\41\
    ---------------------------------------------------------------------------
    
        \41\ See USCIS Memorandum, Standard Timeframe for Applicants to 
    Response to Requests for Evidence Issued in Relation to a Request 
    for a Provisional Unlawful Presence Waiver, Form I-601A (Mar. 1, 
    2013), available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2013/I-601A_30-Day_RFE_PM.pdf.
    ---------------------------------------------------------------------------
    
        USCIS will continue to issue RFEs in provisional waiver cases based 
    on the current USCIS RFE policy \42\ and to assess the effectiveness of 
    its RFE practice in this area. In response to comments, however, the 
    agency has instructed its officers to provide additional detail 
    regarding application deficiencies in RFEs relating to claims of 
    extreme hardship in order to better allow applicants to efficiently and 
    effectively cure such deficiencies. USCIS will retain the 30-day RFE 
    response period, because USCIS and DOS closely coordinate immigrant 
    visa and provisional waiver application processing. The 30-day RFE 
    response time streamlines USCIS processing, prevents lengthy delays at 
    DOS, and allows applicants to complete immigrant visa processing in a 
    timely manner.
    ---------------------------------------------------------------------------
    
        \42\ See USCIS Memorandum, Requests for Evidence and Notices of 
    Intent to Deny (June 3, 2013), available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2013/June%202013/Requests%20for%20Evidence%20(Final).pdf.
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        As explained in the 2013 Rule, a NOID gives an applicant the 
    opportunity to review and rebut derogatory information of which he or 
    she may be unaware. Because provisional waiver adjudications do not 
    involve full assessments of inadmissibility, however, USCIS is not 
    issuing NOIDs describing all possible grounds of inadmissibility that 
    may apply at the time of the immigrant visa interview. Rather, USCIS 
    continues to decide an applicant's eligibility based on the submitted 
    provisional waiver application and related background and security 
    checks. If the applicant's provisional waiver is ultimately denied, he 
    or she may file a new Form I-601A application in accordance with the 
    form's instructions. Alternatively, the individual can file an 
    Application for Waiver of Grounds of Inadmissibility, Form I-601, with 
    USCIS after he or she attends the immigrant visa interview and after 
    the DOS consular officer determines that the individual is 
    inadmissible.
    2. Motions To Reopen, Motions To Reconsider, and Administrative Appeals
        A number of commenters requested that USCIS amend the regulations 
    to allow applicants the opportunity to appeal, or otherwise seek 
    reconsideration, of denied applications. Commenters stated that the 
    only option for challenging wrongful denials is to file new 
    applications or to hope that USCIS will exercise its sua sponte 
    authority to reopen cases. Commenters felt that this policy damages the 
    public's trust and fails to hold USCIS officers accountable for errors. 
    One commenter also noted that although denied applicants remain 
    eligible to apply for waivers through the Form I-601 waiver process 
    after the immigrant visa interview abroad, some still choose not to 
    pursue their immigrant visas because of the uncertainty and hardships 
    associated with consular processing. Commenters argued that these 
    individuals are likely to remain in the United States, thereby 
    diminishing the benefits of the provisional waiver process. 
    Consequently, commenters requested that DHS amend its regulations to 
    institute a mechanism for administrative appeal or reconsideration. 
    According to these commenters, such a mechanism would provide 
    additional due process protections for those whose applications are 
    erroneously denied, those who experience changed circumstances, and 
    those without legal representation (including those who have a 
    deficient or improper application filed by a notario or other 
    individual not authorized to practice law in the United States).
        DHS declines to allow applicants to appeal or otherwise seek 
    reconsideration of denials. The final rule retains the prohibition on 
    appeals and motions, other than sua sponte motions entertained by 
    USCIS. As a preliminary matter, DHS disagrees that there is a legal due 
    process interest in access to or eligibility for discretionary 
    provisional waivers of inadmissibility. See, e.g., Darif v. Holder, 739 
    F.3d 329, 336 (7th Cir. 2014) (no due process interest in discretionary 
    extreme hardship waiver).\43\ Additionally, and as stated in the 2013 
    Rule, section 10(c) of the Administrative Procedure Act (APA), 5 U.S.C. 
    704, permits an agency to provide an administrative appeal if the 
    agency chooses to do so. See Darby v. Cisneros, 509 U.S. 137 (1993). 
    Due to efficiency concerns, DHS continues to believe that 
    administrative appeals should be reserved for actions that involve a 
    comprehensive, final assessment of an applicant's admissibility and 
    eligibility for a benefit. The provisional waiver process does not 
    involve such a comprehensive assessment, and the denial of such an 
    application is not a final agency action for purposes of the APA. See 8 
    CFR
    
    [[Page 50259]]
    
    212.7(e)(9)(ii). If a provisional waiver application is denied, the 
    applicant may either file a new provisional waiver application or seek 
    a waiver through the Form I-601 waiver process after DOS conclusively 
    determines that he or she is inadmissible under INA section 
    212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i). In contrast to denial of a 
    Form I-601A application for a provisional waiver, the denial of a Form 
    I-601 application is appealable. In this regard, the final eligibility 
    determination as it relates to the Form I-601 application lies with the 
    USCIS Administrative Appeals Office (AAO), and the final immigrant visa 
    eligibility determination rests with DOS. See 2013 Rule, 78 FR at 555.
    ---------------------------------------------------------------------------
    
        \43\ Other courts of appeals have recognized that due process 
    does not require an agency to provide for administrative appeal of 
    its decisions. See, e.g., Zhang v. U.S. Dep't of Justice, 362 F.3d 
    155, 157 (2d Cir. 2004); Loulou v. Ashcroft, 354 F.3d 845, 850 (9th 
    Cir. 2003); Mendoza v. U.S. Att'y Gen., 327 F.3d 1283, 1289 (11th 
    Cir. 2003); Albathani v. INS, 318 F.3d 365, 376 (1st Cir. 2003); 
    Guentchev v. INS, 77 F.3d 1036, 1037-38 (7th Cir. 1996).
    ---------------------------------------------------------------------------
    
        Moreover, the provisional waiver process is intended to be a 
    streamlined process that is closely coordinated with DOS immigrant visa 
    processing. Holding cases during an administrative appeal of a 
    provisional waiver application would produce logistical complications 
    for the respective agencies, interrupting the regular adjudication 
    flow, and therefore would be counterproductive to streamlining efforts.
    3. Confidentiality Provisions
        As with the 2013 Rule, commenters asked DHS to include 
    confidentiality protections so that denials of provisional waiver 
    applications would not automatically trigger removal proceedings. The 
    commenters asserted that the Department should provide regulatory 
    assurances stating that DHS will not put provisional waiver applicants 
    in removal proceedings, even if their applications are denied. 
    According to the commenters, such assurances were necessary because a 
    new Administration might institute a change in policy in this area.
        DHS declines to adopt these suggestions as the Department already 
    has effective policies on these issues. DHS focuses its resources on 
    its enforcement priorities, namely threats to national security, border 
    security, or public safety.\44\ Similarly, USCIS continues to follow 
    current agency policy on the issuance of NTAs, which are focused on 
    public safety threats, criminals, and those engaged in fraud.\45\ 
    Consistent with DHS enforcement policies and priorities, the Department 
    will not initiate removal proceedings against individuals who are not 
    enforcement priorities solely because they filed or withdrew 
    provisional waiver applications, or because USCIS denied such 
    applications.
    ---------------------------------------------------------------------------
    
        \44\ See Memorandum from Secretary Jeh Charles Johnson, DHS, 
    Policies for Apprehension, Detention, and Removal of Undocumented 
    Immigrants (Nov. 20, 2014), available at https://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf.
        \45\ See USCIS Memorandum, Revised Guidance for the Referral of 
    Cases and Issuance of Notices to Appear (NTAs) in Cases Involving 
    Inadmissible and Removable Aliens (Nov. 7, 2011), available at 
    www.uscis.gov/NTA.
    ---------------------------------------------------------------------------
    
    E. Filing Requirements and Fees
    
    1. Concurrent Filing
        One commenter requested that DHS allow for the concurrent filing of 
    a Petition for Alien Relative, Form I-130 (``family-based immigrant 
    visa petition''), with the application for a provisional waiver. The 
    commenter reasoned that allowing the concurrent filing of the 
    provisional waiver application and a family-based immigrant visa 
    petition would create efficiencies for applicants and the U.S. 
    Government by reducing paperwork and wait times. Other commenters asked 
    that USCIS allow concurrent filing of a Form I-212 application for 
    consent to reapply for admission with the provisional waiver 
    application if the applicant also needs to overcome the inadmissibility 
    bar for prior removal under INA section 212(a)(9)(A), 8 U.S.C. 
    1182(a)(9)(A), at the time of the immigrant visa interview. Given that 
    processing of Form I-212 applications already takes place in the United 
    States, these commenters believed that it would make sense to 
    adjudicate the Form I-212 and provisional waiver applications at the 
    same time and by the same officer.
        DHS has considered these comments but maintains that concurrent 
    filing would undermine the efficiencies that USCIS and DOS gain through 
    the provisional waiver process. Currently, denials of family-based 
    immigrant visa petitions are appealable to the BIA. See 8 CFR 
    1003.1(b)(5). Denials of other petitions also are generally appealable 
    to the AAO. See 8 CFR 103.3.\46\ If the denial of an immigrant visa 
    petition is challenged on appeal, USCIS would have to either 1) hold 
    the provisional waiver application until the decision on appeal is 
    issued, or 2) deny the provisional waiver application and subsequently 
    consider reopening it if the denial is overturned on appeal. Both 
    scenarios produce administrative inefficiencies and could cause USCIS 
    to incur additional costs for storing provisional waiver applications 
    and transferring alien registration files (A-files) or receipt files 
    between offices until the administrative appeals process is complete. 
    Therefore, DHS has decided against allowing the concurrent filing of 
    provisional waiver applications and immigrant visa petitions.
    ---------------------------------------------------------------------------
    
        \46\ See also AAO's Practice Manual, Chapter 3, Appeals, 
    available at https://www.uscis.gov/about-us/directorates-and-program-offices/administrative-appeals-office-aao/administrative-appeals-office-aao.
    ---------------------------------------------------------------------------
    
        DHS also declines to allow concurrent filing of Form I-212 and 
    provisional waiver applications. In the event that a Form I-212 
    application is denied, the applicant may file an administrative appeal 
    with the AAO. If USCIS allowed the concurrent filing of Form I-212 and 
    provisional waiver applications, USCIS would again be faced with 
    administratively inefficient options in cases where the Form I-212 
    application is denied and the applicant seeks to appeal that denial. As 
    noted above, the agency would again be faced with the choice of either 
    1) holding the provisional waiver application in abeyance until the 
    appeal is decided, or 2) denying the provisional waiver application and 
    later reopening it if the appeal is sustained. As previously discussed, 
    the provisional waiver process is intended to streamline DHS and DOS 
    processes ahead of immigrant visa interviews at consular posts. The 
    delay in the adjudication of provisional waiver applications that would 
    result from allowing additional procedural steps would decrease the 
    efficiencies derived from the provisional waiver process and thus be 
    counterproductive to these streamlining efforts. As indicated 
    previously in this preamble, however, DHS will allow an individual who 
    has been approved for consent to reapply for admission under 8 CFR 
    212.2(j) to seek a provisional waiver. By allowing individuals with 
    conditionally approved Form I-212 applications to apply for provisional 
    waivers, DHS further expands the class of eligible individuals who can 
    benefit from provisional waivers and, at the same time, maintains the 
    program's streamlined efficiency.
    2. Fines or Penalties
        Several commenters believed that DHS should require provisional 
    waiver applicants to pay fines or fees of up to several thousand 
    dollars to remain in the United States and obtain LPR status. Other 
    commenters appeared to suggest that DHS should generally impose 
    financial penalties on individuals unlawfully in the United States.
        Congress has given the Secretary the authority to administer and 
    enforce the immigration and naturalization laws of the United States. 
    See 6 U.S.C. 112, 202(3)-(5); see also INA section 103, 8 U.S.C. 
    1103(a). The Secretary also is authorized to set filing fees for 
    immigration benefits at a level that will ensure recovery of the full 
    costs of
    
    [[Page 50260]]
    
    providing adjudication and naturalization services, including services 
    provided without charge to refugees, asylum applicants, and other 
    immigrants. See INA section 286(m), 8 U.S.C. 1356(m). This fee revenue 
    remains available to DHS to provide immigration and naturalization 
    benefits. See INA section 286(n), 8 U.S.C. 1356(n). DHS has already 
    established an appropriate filing fee for the Form I-601A application 
    as authorized by the statute. Congress, however, has not imposed a 
    specific fine or penalty on provisional waiver applicants or 
    individuals unlawfully present in the United States. Congress also did 
    not authorize any type of independent lawful status for such 
    applicants. Such fines, as with a general fine for unlawful presence, 
    would be unrelated to the costs incurred during the adjudication of 
    immigration benefits. USCIS does not have the authority to impose such 
    civil penalties.
    3. Fees
        DHS received several comments related to fees. One commenter noted 
    that Congress has already approved DHS's funding for this fiscal year, 
    and that Congress did not authorize changes to the Department's budget. 
    The commenter thus requested an explanation as to why DHS believes that 
    funding is available to effectuate the changes proposed by this rule. 
    Another commenter believed that DHS and DOS should return immigrant 
    visa fees to applicants if their provisional waiver applications are 
    ultimately denied. One commenter stated that the derivative spouses of 
    primary beneficiaries should pay separate application fees.
        In contrast to many other U.S. Government agencies, USCIS does not 
    rely on appropriated funds for most of its budget. Rather, USCIS is a 
    fee-based agency that is primarily funded by the fees paid by 
    applicants and petitioners seeking immigration benefits. USCIS relies 
    on these fees to fund the adjudication of provisional waiver 
    applications; none of the funds used for these adjudications comes from 
    funds appropriated annually by Congress.
        Furthermore, as noted above, the fees received with provisional 
    waiver applications and immigrant visa petitions cover the costs of 
    adjudication. These fees are necessary regardless of whether the 
    application or petition is ultimately approved or denied. Therefore, 
    USCIS does not return fees when a petition, application, or request is 
    denied. For its part, DOS determines its own fees pursuant to its own 
    authorities. See, e.g., INA section 104, 8 U.S.C. 1104; 8 U.S.C. 1714; 
    see also 22 CFR 22.1, 42.71(b).
        Finally, an individual who applies for a provisional waiver must 
    submit the application with the appropriate filing and biometrics fees, 
    as outlined in the form's instructions and 8 CFR 103.7, even if the 
    individual is a derivative beneficiary.
    4. Premium Processing
        A few commenters recommended that DHS establish a premium 
    processing fee to expedite processing of provisional waiver 
    applications. One commenter indicated that the processing time for a 
    provisional waiver application should not exceed 30 days under premium 
    processing.
        DHS declines to adopt the suggestion to extend premium processing 
    to provisional waiver applications. The INA permits certain employment-
    based petitioners and applicants for immigration benefits to request 
    premium processing for a fee. See INA section 286(u), 8 U.S.C. 1356(u). 
    DHS has established the current premium processing fee at $1,225.\47\ 
    See 8 CFR 103.7(b)(1)(i)(RR); see also 8 CFR 103.7(e) (describing the 
    premium processing service). The premium processing fee, which is paid 
    in addition to the base filing fee, guarantees that USCIS processes a 
    benefit request within 15 days. See 8 CFR 103.7(e)(2). If USCIS cannot 
    take action within 15 days, USCIS refunds the premium processing 
    fee.\48\ Id.
    ---------------------------------------------------------------------------
    
        \47\ The fee was originally set at $1,000, and may be adjusted 
    according to the Consumer Price Index (CPI). See INA section 286(u), 
    8 U.S.C. 1356(u).
        \48\ Even if USCIS refunds this fee, USCIS generally continues 
    expedited processing of the benefit request.
    ---------------------------------------------------------------------------
    
        DHS has not extended premium processing to any immigration benefit 
    except for those authorized under INA section 286(u), 8 U.S.C. 1356(u). 
    Notably, INA section 286(u) expressly authorizes premium processing 
    only for employment-based petitions and applications. Even if USCIS 
    could develop an expedited processing fee for other benefits, USCIS 
    would not apply it to the provisional waiver process, as that process 
    requires background checks over which USCIS does not control timing. 
    Additionally, determining an appropriate fee for such a new process 
    would require USCIS to estimate the costs of that service and engage in 
    separate notice-and-comment rulemaking to establish the new fee. Thus, 
    DHS will not establish a Form I-601A premium processing fee at this 
    time.
    5. Expedited Processing
        One commenter stated that the processing time for a provisional 
    waiver application should generally not exceed 30 days. Other 
    commenters urged USCIS to expedite the processing of applications for 
    family members of active duty members or honorably discharged veterans 
    of the U.S. Armed Forces. One commenter asked that DHS and DOS expedite 
    the immigrant visa interviews of individuals with approved provisional 
    waivers.\49\
    ---------------------------------------------------------------------------
    
        \49\ One commenter also urged CBP to expedite Freedom of 
    Information Act requests so that individuals are able to obtain the 
    information they need to assess eligibility and complete their 
    applications. The commenter indicated that expanding the provisional 
    waiver process is useless unless potential applicants are given 
    access to their files. DHS declines to adopt this suggestion as it 
    is beyond the scope of this rulemaking.
    ---------------------------------------------------------------------------
    
        DHS did not incorporate these suggestions in this final rule. DHS 
    believes the provisional waiver process is well managed, and officers 
    adjudicate cases quickly after receiving an applicant's background 
    check results. Creating an expedited process for certain applicants, 
    including relatives of military members and veterans, would create 
    inefficiencies and potentially slow the process for all provisional 
    waiver applicants.\50\
    ---------------------------------------------------------------------------
    
        \50\ Each time USCIS has to set aside a regularly filed case to 
    prioritize the adjudication of another case, it delays those cases 
    that were filed prior to the prioritized case and disrupts the 
    normal adjudication process.
    ---------------------------------------------------------------------------
    
        Additionally, even if DHS were to expedite the provisional waiver 
    process for certain applicants, they would still be required to spend 
    time navigating the DOS immigrant visa process. DHS believes that 
    expediting the processing of provisional waiver applications for 
    certain individuals would generally not significantly affect the 
    processing time of their immigrant visa processing with DOS. 
    Individuals often file their provisional waiver applications with USCIS 
    while the DOS National Visa Center (NVC) pre-processes their immigrant 
    visa applications. The NVC pre-processing of immigrant visa 
    applications usually runs concurrently with the USCIS processing of 
    provisional waiver applications. Thus, even if DHS were to expedite the 
    provisional waiver process for certain applicants, those applicants 
    would nevertheless be required to wait for DOS to complete its process. 
    Additionally, the processing time for immigrant visa applications at 
    the NVC largely depends on other outside factors, including whether 
    applicants submit necessary documents to the NVC on a timely basis 
    throughout the process. In many cases, including those in which 
    applicants
    
    [[Page 50261]]
    
    delay in getting necessary documents to the NVC, immigrant visa 
    processing would not be affected by the expediting of other processes.
        DHS reminds applicants, however, that they may request expedited 
    adjudication of a provisional waiver application according to current 
    USCIS expedite guidance.\51\ Also, relatives of current and former U.S. 
    Armed Forces members may seek USCIS assistance through the agency's 
    special military help line.\52\
    ---------------------------------------------------------------------------
    
        \51\ For guidance on USCIS expedite procedures, please visit 
    http://www.uscis.gov/forms/expedite-criteria.
        \52\ Information about the military help line is available at 
    http://www.uscis.gov/military/military-help-line. DHS encourages 
    military families that need assistance to reach out to USCIS through 
    the help line.
    ---------------------------------------------------------------------------
    
    6. Background Checks and Drug Testing
        One commenter requested that USCIS conduct background checks and 
    drug testing for provisional waiver applicants.\53\
    ---------------------------------------------------------------------------
    
        \53\ Two commenters also asked that USCIS allow provisional 
    waiver applicants to include medical examinations performed by 
    USCIS-designated civil surgeons with their provisional waiver 
    applications. These commenters believed that the opportunity to 
    provide the results of the medical examination before departure for 
    the immigrant visa interview would further streamline the process. 
    The commenters also believed that applicants could either avoid the 
    higher panel physician examination fee abroad, or detect and treat 
    possible medical conditions that would render them ineligible for 
    their immigrant visas before departure. One of these commenters also 
    indicated that such a process would allow an applicant's 
    representative to check the panel physician's work. DHS did not 
    adopt this suggestion. Under DOS regulations, each immigrant visa 
    applicant must be examined by a DOS-designated panel physician, see 
    22 CFR 42.66, and altering DHS regulations to permit submission of 
    medical examinations with a provisional waiver application would not 
    eliminate that requirement.
    ---------------------------------------------------------------------------
    
        DHS is not modifying the background checks and biometrics 
    requirement in this rule to include drug testing. Individuals seeking 
    provisional waivers already must provide biometrics for background and 
    security checks. Based in part on the background check results, USCIS 
    determines whether the applicant is eligible for the waiver, including 
    whether a favorable exercise of discretion is warranted. DHS only 
    collects the biometric information needed to run such checks and to 
    adjudicate any requested immigration benefit. Additional testing, such 
    as a medical examination, is required within the DOS immigrant visa 
    process and for DOS's visa eligibility determinations. Performing 
    medical tests as part of the provisional waiver process would duplicate 
    the DOS process.
    
    F. Comments Outside the Scope of This Rulemaking
    
        DHS received a number of comments that are outside the scope of 
    this rule. For example, one commenter asked USCIS to publish guidance 
    on whether an individual who is subject to the 3- or 10-year unlawful 
    presence bar, but who has already returned to the United States, could 
    satisfy the requisite inadmissibility period while in the United 
    States. Other commenters suggested that those with approved provisional 
    waivers should be permitted to seek adjustment of status in the United 
    States. Many asked DHS to extend the period for accepting adjustment of 
    status applications pursuant to INA section 245(i), 8 U.S.C. 1255(i). 
    Others requested that DHS: create a new waiver for people who leave the 
    United States because of family emergencies; make certain immigrant 
    visa categories immediately available or create new immigrant visa 
    categories; Create new inadmissibility periods for purposes of INA 
    sections 212(a)(9)(B)(i) and 212(a)(9)(C), 8 U.S.C. 1182(a)(9)(B)(i) 
    and 1182(a)(9)(C); and generally modify immigration laws, particularly 
    those perceived as harsh.
        Other commenters requested changes to DOS consular processes or 
    regulations, which are also not within the scope of this rule. For 
    example, commenters asked DHS to instruct DOS consular officers to 
    issue immigrant visas to applicants with approved provisional waiver 
    applications.\54\ One commenter criticized the inability to appeal 
    immigrant visa denials to DHS as unfair, even though DOS, not DHS, 
    adjudicates immigrant visa applications. See generally 22 CFR part 42. 
    Similarly, another commenter stated that individuals whose immigrant 
    visa applications have been denied by DOS must be allowed to reopen 
    those applications so that they can be allowed to file provisional 
    waiver applications.\55\
    ---------------------------------------------------------------------------
    
        \54\ To the extent that these comments are read to suggest that 
    DOS should issue immigrant visas to individuals with approved 
    provisional waiver applications without assessing whether such 
    individuals are inadmissible for other reasons, DHS believes those 
    comments are outside the scope of this rulemaking. To the extent 
    that the comments are read to suggest that DOS should not re-
    adjudicate or ``second-guess'' USCIS's provisional waiver 
    determinations, DHS notes that DOS does not reassess USCIS' 
    provisional waiver determination. DOS, however, is required to 
    assess whether an individual is ineligible for an immigrant visa, 
    including whether an applicant is inadmissible. If the individual is 
    inadmissible on a ground other than unlawful presence, or is 
    otherwise ineligible for the immigrant visa, DOS may deny the 
    individual's immigrant visa application, even if the provisional 
    waiver was approved.
        \55\ As with other DOS processes, review of the denial of a visa 
    application is governed by DOS regulations, not DHS regulations.
    ---------------------------------------------------------------------------
    
        Because DHS believes that these suggestions are outside the scope 
    of this rule, the suggestions will not be addressed in this rule.
    
    G. Comments on the Executive Orders 12866/13563 Analysis
    
        In one comment requesting that the DOS visa interview scheduling 
    cut-off date be eliminated as an ineligibility requirement, the 
    commenter cited DHS's acknowledgement that the 2013 Rule's provisional 
    waiver application projections were overestimated. Because of the 
    overestimation in the 2013 Rule, the commenter suggested that DHS 
    likely overestimated provisional waiver applications resulting from the 
    2015 Proposed Rule. Since publication of the 2015 Proposed Rule, DHS 
    has adjusted its application projection method based on new, revised 
    data from DOS and this rule's new provisional waiver eligibility 
    criteria. DHS believes this new method will better project the 
    provisional waiver applications resulting from the rule.
        DHS received many comments affirming the benefits of the 
    provisional unlawful presence waiver described in the 2015 Proposed 
    Rule. Commenters agreed that the provisional waiver's expansion would 
    provide greater certainty for families, promote family unity, improve 
    administrative efficiency, improve communication between DHS and other 
    government agencies, facilitate immigrant visa issuance, save time and 
    resources, and relieve the emotional and financial hardships that 
    family members experience from separation.
        DHS also received several economic-related comments that were 
    outside the scope of this rule. Several commenters mentioned that 
    obtaining legal status, which both the provisional and general unlawful 
    presence waivers may facilitate, provides a significant benefit to the 
    undocumented individual as well as American society. According to the 
    commenters, this is because obtaining legal status tends to increase 
    taxable income, reduce poverty, contribute to job growth, help 
    businesses gain qualified employees, and add to consumer spending. 
    Although DHS agrees that obtaining legal status provides important 
    economic benefits to once-undocumented individuals, and the United 
    States in general, those benefits are not directly attributable to the 
    provisional waiver eligibility
    
    [[Page 50262]]
    
    provided by this rule. Rather, obtaining a waiver of the unlawful 
    presence ground of inadmissibility (provisional or not) is just one 
    step in the process for gaining legal status, which USCIS hopes this 
    rule will facilitate.
        A different commenter asserted that non-U.S. citizen workers hurt 
    the economy. DHS disagrees with this comment and finds that it is 
    beyond the scope of this rule because obtaining a waiver of 
    inadmissibility (provisional or not) for unlawful presence does not 
    provide employment authorization for someone who is unlawfully present. 
    Receiving such a waiver is just one step in the process for gaining the 
    legal status required to lawfully work in the United States.
    
    IV. Regulatory Amendments
    
        After careful consideration of the public comments, as previously 
    summarized in this preamble, DHS adopts the regulatory amendments in 
    the proposed rule without change, except for the provisions noted 
    below. In addition to these substantive changes, DHS also has made 
    edits to the text of various provisions that do not change the 
    substance of the proposed rule.
    
    A. Amending 8 CFR 212.7(e)(1) To Clarify Which Agency Has Jurisdiction 
    To Adjudicate Provisional Waivers
    
        Currently, 8 CFR 212.7(e)(1) specifies that all provisional waiver 
    applications, including an application made by an individual in removal 
    proceedings before EOIR, must be filed with USCIS. The provision 
    implies, but does not specifically state, that USCIS has exclusive 
    jurisdiction to adjudicate and decide provisional waivers. With this 
    final rule, DHS modifies the regulatory text to clarify that USCIS has 
    exclusive jurisdiction, regardless of whether the applicant is or was 
    in removal, deportation, or exclusion proceedings. See new 8 CFR 
    212.7(e)(2).
    
    B. Removing the Reason-to-Believe Standard as a Basis for Ineligibility
    
        Under the 2013 Rule, an individual is ineligible for a provisional 
    waiver if ``USCIS has reason to believe that the alien may be subject 
    to grounds of inadmissibility other than unlawful presence under INA 
    section 212(a)(9)(B)(i)(I) or (II), 8 U.S.C. 1182(a)(9)(B)(I) or (II), 
    at the time of the immigrant visa interview with the Department of 
    State.'' 8 CFR 212.7(e)(4)(i). The 2015 Proposed Rule proposed to 
    retain this requirement but requested any alternatives that may be more 
    effective than the current provisional waiver process or the amended 
    process in the proposed rule. See 80 FR 43343. In response to comments, 
    DHS is removing this standard as a basis for ineligibility for 
    provisional waivers. See new 8 CFR 212.7(e)(4). DHS, however, retains 8 
    CFR 212.7(e)(14)(i), which provides that a provisional waiver is 
    automatically revoked if DOS determines, at the time of the immigrant 
    visa interview, that the applicant is inadmissible on any grounds of 
    inadmissibility other than unlawful presence under INA section 
    212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B). Revocation of the provisional 
    waiver based on inadmissibility on other grounds, however, does not 
    prevent the individual from applying for a general waiver under 8 CFR 
    212.7(a) to cure his or her inadmissibility under INA section 
    212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B) or any other ground of 
    inadmissibility for which a waiver is available.
    
    C. Removing the DOS Visa Interview Scheduling Cut-Off Dates in 8 CFR 
    212.7(e)(4)(iv) and 212.7(e)(5)(ii)(G)
    
        In the proposed rule, DHS sought to retain date restrictions that 
    prevented immediate relatives of U.S. citizens from obtaining 
    provisional waivers if DOS acted prior to January 3, 2013 to schedule 
    their immigrant visa interviews. See 80 FR at 43343. DHS also proposed 
    that other individuals (i.e., individuals other than certain immediate 
    relatives of U.S. citizens) would be ineligible for provisional waivers 
    if DOS had acted on or before the effective date of this final rule to 
    schedule the immigrant visa interview. Id. Furthermore, DHS proposed to 
    reject provisional waiver applications that were not filed consistent 
    with the above date restrictions. See proposed 8 CFR 
    212.7(e)(5)(G)(ii)(1) and (2). In response to comments, DHS has decided 
    to eliminate these filing restrictions. See new 8 CFR 212.7(e)(4) and 
    (5).
    
    D. Allowing Individuals With Final Orders of Removal, Deportation, or 
    Exclusion To Apply for Provisional Waivers
    
        Since the inception of the provisional waiver process, individuals 
    have been ineligible for provisional waivers if they are 1) subject to 
    final orders of removal issued under INA sections 217, 235, 238, or 
    240, 8 U.S.C. 1187, 1225, 1228, or 1229a; 2) subject to final orders of 
    exclusion or deportation under former INA sections 236 or 242, 8 U.S.C. 
    1226 or 1252 (pre-April 1, 1997), or 3) subject to final orders under 
    any other provision of law (including an in absentia order of removal 
    under INA section 240(b)(5), 8 U.S.C. 1229a(b)(5)). See generally 2013 
    Rule, 78 FR 536. As indicated in the response to comments on this 
    subject in the preamble, DHS is amending the rule to provide 
    eligibility for provisional waivers to certain individuals who are 
    subject to an administratively final order of removal, deportation, or 
    exclusion and therefore will be inadmissible under INA section 
    212(a)(9)(A)(i) or (ii), 8 U.S.C. 1182(a)(9)(A)(i) or (ii), upon 
    departure from the United States. Under the final rule, such 
    individuals will be eligible to apply for provisional waivers if they 
    have been granted consent to reapply for admission under INA section 
    212(a)(9)(A)(iii), 8 U.S.C. 1182(a)(9)(A)(iii) and 8 CFR 212.2(j). See 
    new 8 CFR 212.7(e)(4) (iv). However, they cannot file Form I-212 
    applications and provisional waiver applications concurrently. See new 
    8 CFR 212.7(e)(4)(iv).
        Notwithstanding this change, individuals will remain ineligible for 
    provisional waivers if 1) they have returned unlawfully to the United 
    States after removal, and 2) CBP or ICE, after service of notice under 
    8 CFR 241.8, has reinstated a prior order of removal, deportation, or 
    exclusion. Under INA section 241(a)(5), 8 U.S.C. 1231(a)(5), 
    reinstatement of a such an order makes the individual ineligible for 
    waivers of inadmissibility and other forms of relief. See new 8 CFR 
    212.7(e)(4)(v). Moreover, even in the absence of reinstatement, the 
    individual's unauthorized return to the United States may be considered 
    as an adverse discretionary factor in adjudicating a provisional waiver 
    application. Finally, the approval of a provisional waiver application 
    will be automatically revoked if the applicant is ultimately determined 
    to be inadmissible under INA 212(a)(9)(C), 8 U.S.C 1182(a)(9)(C), for 
    having unlawfully returned to the United States after a prior removal 
    or prior unlawful presence.
    
    E. Clarifying When an Individual Is Subject to Reinstatement and 
    Ineligible for Provisional Waivers
    
        Currently, an individual is ineligible for a provisional waiver if 
    he or she is subject to reinstatement of a prior order under INA 
    section 241(a)(5), 8 U.S.C. 1231(a)(5). See 8 CFR 212.7(e)(4)(vii). DHS 
    retained this ineligibility criteria in the proposed rule. In this 
    final rule, however, DHS clarifies which individuals are ineligible for 
    provisional waivers based on application of the reinstatement of 
    removal provision at INA section 241(a)(5), 8 U.S.C. 1231(a)(5). Under 
    the final rule, an individual will be ineligible for a provisional 
    waiver if ICE or CBP, after service of notice under 8 CFR 241.8, has 
    reinstated the removal, deportation, or
    
    [[Page 50263]]
    
    exclusion order prior to the individual filing the provisional waiver 
    or while the provisional waiver application is pending. See new 8 CFR 
    212.7(e)(4)(v).
    
    F. Miscellaneous Technical Amendments
    
        In this final rule, DHS made several technical and non-substantive 
    changes. First, DHS amended 8 CFR 212.7(e)(2) by adding the word 
    ``document'' after the terms ``employment authorization'' and ``advance 
    parole.'' Additionally, DHS simplified the text of 8 CFR 212.7(e)(5). 
    Currently, that provision outlines filing conditions, which are also 
    provided in the instructions to provisional waiver applications. DHS, 
    therefore, revised the provision to refer individuals to the filing 
    instructions of the form.
    
    V. Statutory and Regulatory Requirements
    
    A. Unfunded Mandates Reform Act of 1995
    
        This 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 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 foreign-
    based companies in domestic and export markets.
    
    C. Executive Orders 12866 (Regulatory Planning and Review) and 13563 
    (Improving Regulation and Regulatory Review)
    
        Executive Orders 12866 and 13563 direct agencies to assess the 
    costs and benefits of available regulatory alternatives and, if 
    regulation is necessary, to select regulatory approaches that maximize 
    net benefits (including potential economic, environmental, public 
    health and safety effects, distributive impacts, and equity). Executive 
    Order 13563 emphasizes the importance of quantifying both costs and 
    benefits, of reducing costs, of harmonizing rules, and of promoting 
    flexibility. This rule is a ``significant regulatory action,'' 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.''
    1. Summary
        After careful consideration of public comments on the 2015 Proposed 
    Rule,\56\ DHS adopts most of the regulatory amendments specified in the 
    proposed rule without change, except for the provisions addressing 
    ineligibility for: 1) reason to believe that the applicant may be 
    inadmissible on grounds other than unlawful presence at the time of the 
    DOS immigrant visa interview (8 CFR 212.7(e)(4)(i)); 2) DOS initially 
    acting before January 3, 2013 or before the effective date of this 
    final rule to schedule an applicant's immigrant visa interview 
    (proposed 8 CFR 212.7(e)(4)(iv) and 212.7(e)(5)(ii)(G)); and 3) the 
    applicant being subject to an administratively final order of 
    exclusion, deportation, or removal (``final order'')(8 CFR 
    212.7(e)(4)(vi)). With the adoption of most of the proposed regulatory 
    amendments, DHS largely applies the 2015 Proposed Rule's economic 
    analysis approach to this final rule. However, some changes to the 
    analysis are necessary to capture the population of individuals now 
    eligible for provisional waivers through this final rule's elimination 
    and modification of certain ineligibility provisions just described and 
    source data revisions.
    ---------------------------------------------------------------------------
    
        \56\ See 80 FR 43338 (July 22, 2015).
    ---------------------------------------------------------------------------
    
        This rule's expansion of the provisional waiver process will create 
    costs and benefits to newly eligible provisional waiver (Form I-601A) 
    applicants, their U.S. citizen or LPR family members, and the Federal 
    Government (namely, USCIS and DOS), as outlined in Table 1. This rule 
    will impose fee, time, and travel costs on an estimated 100,000 newly 
    eligible individuals who choose to complete and submit provisional 
    waiver applications and biometrics (fingerprints, photograph, and 
    signature) to USCIS for consideration during the 10-year period of 
    analysis (see Table 8). These costs will equal an estimated $52.4 
    million at a 7 percent discount rate and $64.2 million at a 3 percent 
    discount rate in present value across the period of analysis. On an 
    annualized basis, the costs will measure approximately $7.5 million at 
    both 7 percent and 3 percent discount rates (see Table 1).
        Newly eligible provisional waiver applicants and their U.S. citizen 
    or LPR family members will benefit from this rule. Individuals applying 
    for a provisional waiver will receive advance notice of USCIS' decision 
    to provisionally waive their 3- or 10-year unlawful presence bar under 
    INA section 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B), before they leave the 
    United States for their immigrant visa interviews abroad. This offers 
    applicants and their family members the certainty of knowing that the 
    applicants have been provisionally approved for a waiver of certain 
    unlawful presence grounds of inadmissibility before departing from the 
    United States. Individuals with approved provisional waivers may 
    experience shortened periods of separation from their family members 
    living in the United States while they pursue immigrant visas abroad, 
    thus reducing related financial and emotional strains on the families. 
    USCIS and DOS will continue to benefit from the operational 
    efficiencies gained from the provisional waiver's role in streamlining 
    immigrant visa application processing, but on a larger scale than 
    currently in place.
        In the absence of this rule, DHS assumes that the majority of 
    individuals who would have been newly eligible for provisional waivers 
    under this rule will likely continue to pursue an immigrant visa 
    through consular processing abroad and apply for waivers of unlawful 
    presence through the Form I-601 process. Those who apply for unlawful 
    presence waivers through the Form I-601 process will incur fee, time, 
    and travel costs similar to individuals applying for waivers through 
    the provisional waiver process. However, without this rule, those who 
    must seek a waiver of inadmissibility abroad through the Form I-601 
    process after the immigrant visa interview may face longer separation 
    times from their families in the United States and experience less 
    certainty regarding the approval of a waiver of the 3- or 10-year 
    unlawful presence bar before departing from the United States.
    
    [[Page 50264]]
    
    
    
                                Table 1--Total Costs and Benefits of Rule, Year 1-Year 10
    ----------------------------------------------------------------------------------------------------------------
                                              10-Year present values                     Annualized values
                                     -------------------------------------------------------------------------------
                                       3% Discount rate    7% Discount rate    3% Discount rate    7% Discount rate
    ----------------------------------------------------------------------------------------------------------------
    Total Costs:
        Quantitative................  $64,168,205.......  $52,429,216.......  $7,522,471........  $7,464,741
    ----------------------------------------------------------------------------------------------------------------
    Total Benefits:
     
        Qualitative.................    Decreased amount of time that U.S.
                                        citizens or LPRs are separated from
                                         their family members with approved
                                          provisional waivers, leading to
                                          reduced financial and emotional
                                            hardship for these families.
                                        Decreased amount of time that U.S.
                                        citizens or LPRs are separated from
                                         their family members with approved
                                          provisional waivers, leading to
                                          reduced financial and emotional
                                            hardship for these families.
    ----------------------------------------------------------------------------------------------------------------
                                        Provisional waiver applicants will
                                          receive advance notice of USCIS'
                                       decision to provisionally waive their
                                        3- or 10-year unlawful presence bar
                                        before they leave the United States
                                         for their immigrant visa interview
                                         abroad. This offers applicants and
                                       their family members the certainty of
                                       knowing that the applicants have been
                                        provisionally approved for a waiver
                                          before departing from the United
                                                      States.
                                        Provisional waiver applicants will
                                          receive advance notice of USCIS'
                                       decision to provisionally waive their
                                        3- or 10-year unlawful presence bar
                                        before they leave the United States
                                         for their immigrant visa interview
                                         abroad. This offers applicants and
                                       their family members the certainty of
                                       knowing that the applicants have been
                                        provisionally approved for a waiver
                                          before departing from the United
                                                      States.
    ----------------------------------------------------------------------------------------------------------------
                                          Federal Government will achieve
                                             increased efficiencies by
                                            streamlining immigrant visa
                                         processing for applicants seeking
                                        inadmissibility waivers of unlawful
                                                     presence.
                                          Federal Government will achieve
                                             increased efficiencies by
                                            streamlining immigrant visa
                                         processing for applicants seeking
                                        inadmissibility waivers of unlawful
                                                     presence.
    ----------------------------------------------------------------------------------------------------------------
    Note: The cost estimates in this table are contingent upon Form I-601A filing projections as well as the
      discount rates applied for monetized values.
    
    2. Background
        Individuals who are in the United States and seeking LPR status 
    must either obtain an immigrant visa abroad through consular processing 
    with DOS or apply to adjust status in the United States, if eligible. 
    Those present in the United States without having been inspected and 
    admitted or paroled are typically ineligible to adjust status in the 
    United States. To obtain LPR status, such individuals must leave the 
    United States for immigrant visa processing at a U.S. Embassy or 
    consulate abroad. Because these individuals are present in the United 
    States without having been inspected and admitted or paroled, many have 
    accrued enough unlawful presence to trigger the 3- or 10-year unlawful 
    presence grounds of inadmissibility when leaving the United States for 
    immigrant visa processing abroad.\57\ See INA section 212(a)(9)(B)(i), 
    8 U.S.C. 1182(a)(9)(B)(i). While there may be limited exceptions, the 
    population affected by this rule will consist almost exclusively of 
    individuals who are eligible for immigrant visas but are unlawfully 
    present in the United States without having been inspected and admitted 
    or paroled.
    ---------------------------------------------------------------------------
    
        \57\ Individuals who depart the United States after accruing 
    more than 180 days, but less than 1 year, of unlawful presence are 
    generally inadmissible for 3 years. Those who depart the United 
    States after accruing 1 year or more of unlawful presence are 
    generally inadmissible for 10 years.
    ---------------------------------------------------------------------------
    
        Before the introduction of the provisional waiver process, 
    individuals seeking immigrant visas through consular processing were 
    only able to apply for a waiver of a ground of inadmissibility, such as 
    unlawful presence, after attending the immigrant visa interview abroad. 
    If a consular officer identified any ground(s) of inadmissibility 
    during an immigrant visa interview, the applicant was tentatively 
    denied an immigrant visa and allowed to seek a waiver of any waivable 
    ground(s) of inadmissibility. The individual could apply for such a 
    waiver by filing Form I-601 with USCIS. Those who applied for Form I-
    601 waivers were required to remain abroad while USCIS adjudicated 
    their Forms I-601, which currently takes over five months to 
    complete.\58\ If USCIS approved the waiver of the inadmissibility 
    ground(s), DOS subsequently scheduled a follow-up consular interview. 
    Provided there were no other concerns raised by the consular officer, 
    DOS generally issued the immigrant visa during the follow-up consular 
    interview.
    ---------------------------------------------------------------------------
    
        \58\ U.S. Citizenship and Immigration Services. ``USCIS 
    Processing Time Information for the Nebraska Service Center- Form I-
    601.'' Available at https://egov.uscis.gov/cris/processTimesDisplayInit.do (last updated Feb. 11, 2016).
    ---------------------------------------------------------------------------
    
        In some instances, the Form I-601 waiver process led to lengthy 
    separations of immigrant visa applicants from their U.S. citizen or LPR 
    spouses, parents, and children, causing financial and emotional harm. 
    The Form I-601 waiver process also created processing inefficiencies 
    for both USCIS and DOS through repeated interagency communication and 
    through multiple consular appointments or interviews.
        With the goals of streamlining the inadmissibility waiver process, 
    facilitating efficient immigrant visa issuance, and promoting family 
    unity, DHS promulgated a rule that established an alternative 
    inadmissibility waiver process on January 3, 2013 (``2013 Rule'').\59\ 
    The 2013 Rule created a provisional waiver process for certain 
    immediate relatives of U.S. citizens (namely, spouses, children 
    (unmarried and under 21), and parents of U.S. citizens (provided the 
    child is at least 21)) who are in the United States, are seeking 
    immigrant visas, can demonstrate extreme hardship to a U.S. citizen 
    spouse or parent, would be inadmissible upon departure from the United 
    States due to only the accrual of unlawful presence, and meet other 
    eligibility conditions. That process currently allows eligible 
    individuals to apply for a provisional waiver and receive a 
    notification of USCIS' decision on their provisional waiver application 
    before departing for DOS consular processing of their immigrant visa 
    applications. The provisional waiver process contrasts to the Form I-
    601 waiver process, which requires
    
    [[Page 50265]]
    
    applicants to wait abroad, away from their family members in the United 
    States, while USCIS adjudicates their application for a waiver of 
    inadmissibility. Once approved for a provisional waiver, they are 
    scheduled for the immigrant visa interview abroad. During the immigrant 
    visa interview, a DOS consular officer will determine whether the 
    applicant is otherwise admissible to the United States and eligible to 
    receive an immigrant visa. Since the provisional waiver process's 
    inception, USCIS has approved more than 66,000 provisional waiver 
    applications for certain immediate relatives of U.S. citizens,\60\ 
    allowing these individuals and their families to enjoy the benefits of 
    such waivers.
    ---------------------------------------------------------------------------
    
        \59\ See 78 FR 536 (Jan. 3, 2013).
        \60\ This figure is based on Form I-601A approvals data through 
    the end of fiscal year 2015 (September 30, 2015). Note that USCIS 
    began accepting provisional waiver applications on March 4, 2013. 
    Source: USCIS' Office of Performance and Quality.
    ---------------------------------------------------------------------------
    
    3. Purpose of Rule
        To assess the initial effectiveness of the provisional waiver 
    process, DHS decided to offer this process to a limited group--certain 
    immediate relatives of U.S. citizens--in the 2013 Rule.\61\ Based on 
    the lengthy separation periods and related financial and emotional 
    burdens to families associated with the Form I-601 waiver process, and 
    based on the efficiencies realized for both USCIS and DOS through the 
    provisional waiver process, the Secretary directed USCIS to expand 
    eligibility for the provisional waiver process beyond certain immediate 
    relatives of U.S. citizens to all statutorily eligible immigrant visa 
    applicants.\62\ Consistent with that directive and the INA, on July 22, 
    2015, DHS published the 2015 Proposed Rule, which proposed to expand 
    eligibility for provisional waivers of certain grounds of 
    inadmissibility based on the accrual of unlawful presence to include 
    all other individuals seeking an immigrant visa (all other immigrant 
    visa applicants \63\) who are statutorily eligible for a waiver of such 
    grounds, are seeking a waiver in connection with an immigrant visa 
    application, are present in the United States, and meet other 
    conditions.\64\ In the 2015 Proposed Rule, USCIS also proposed to allow 
    LPR spouses and parents, in addition to currently eligible U.S. citizen 
    spouses and parents, to serve as qualifying relatives for the 
    provisional waiver's extreme hardship determination, consistent with 
    the statutory waiver authority. Under this provision, provisional 
    waiver applicants could show that their denial of admission would cause 
    extreme hardship to their U.S. citizen or LPR spouses or parents.
    ---------------------------------------------------------------------------
    
        \61\ See 78 FR at 542.
        \62\ This expansion included, but was not limited to, adult sons 
    and daughters of U.S. citizens; brothers and sisters of U.S. 
    citizens; and spouses and children of LPRs. See Memorandum from Jeh 
    Charles Johnson, Secretary, DHS, to L[eacute]on Rodr[iacute]guez, 
    Director, USCIS, Expansion of the Provisional Waiver Program (Nov. 
    20, 2014). Available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_i601a_waiver.pdf.
        \63\ For the purposes of this analysis, the phrase ``all other 
    immigrant visa applicants'' encompasses the following immigrant visa 
    categories: family-sponsored immigrants, employment-based 
    immigrants, diversity immigrants, and certain special immigrants.
        \64\ See 80 FR 43338 (July 22, 2015).
    ---------------------------------------------------------------------------
    
        This final rule adopts most of the regulatory amendments set forth 
    in the 2015 Proposed Rule except for a few provisions. In particular, 
    USCIS, in response to public comments on the 2015 Proposed Rule, will 
    eliminate the current provisional waiver provisions addressing 
    ineligibility for: (1) Reason to believe that the applicant may be 
    inadmissible on grounds other than unlawful presence at the time of the 
    DOS immigrant visa interview (8 CFR 212.7(e)(4)(i)); (2) DOS initially 
    acting before January 3, 2013 (for certain immediate relatives) or 
    before the effective date of this final rule to schedule an applicant's 
    immigrant visa interview (proposed 8 CFR 212.7(e)(4)(iv) and 
    212.7(e)(5)(ii)(G)); and (3) applicants who are subject to an 
    administratively final order of exclusion, deportation, or removal (8 
    CFR 212.7(e)(4)(vi)).\65\ An individual subject to a final order may 
    now seek a provisional waiver, but only if he or she has already 
    requested and been approved for consent to reapply for admission under 
    INA section 212(a)(9)(A)(iii), 8 U.S.C. 1182(a)(9)(A)(iii) via a Form 
    I-212 application. Filing and receiving approval of the Form I-212 
    application is a requirement already in place for these individuals to 
    be eligible for an immigrant visa.
    ---------------------------------------------------------------------------
    
        \65\ As mentioned earlier in this preamble, USCIS will 
    automatically revoke a provisional waiver if DOS determines, at the 
    time of the immigrant visa interview, that the applicant is 
    inadmissible on any ground(s) of inadmissibility other than unlawful 
    presence under INA section 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B). 
    Revocation of the provisional unlawful presence waiver for this 
    reason does not prevent an individual from applying under 8 CFR 
    212.7(a) for a waiver of inadmissibility under INA section 
    212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v), or for any other waiver 
    that may be available for any other ground(s) of inadmissibility.
    ---------------------------------------------------------------------------
    
        Other than the changes outlined in this rulemaking, DHS will 
    maintain all other eligibility requirements for the provisional waiver 
    as currently described in 8 CFR 212.7(e), including the requirements to 
    submit biometrics, pay the provisional waiver filing fee and the 
    biometric services fee, and be present in the United States at the time 
    of the provisional waiver application filing and biometrics 
    appointment.
        This rule's amendments will provide more individuals seeking 
    immigrant visas and their U.S. citizen or LPR family members with the 
    provisional waiver's main benefit of shortened family separation 
    periods, while increasing USCIS and DOS efficiencies by streamlining 
    the immigrant visa process for such applicants.
    4. Current Provisional Waiver Process
        In this analysis, DHS draws on applicable DOS visa ineligibility 
    statistics and historical provisional waiver application data to 
    estimate the current demand for provisional waivers and the anticipated 
    demand directly resulting from this final rule. Illustrating the past 
    demand for provisional waivers, Table 2 displays the actual numbers of 
    Form I-601A receipts, approvals, and denials recorded for March of 
    fiscal year (FY) 2013 \66\ through the end of FY 2015. Across those 
    years, DHS received about 107,000 Form I-601A applications, for an 
    average of almost 42,000 per year.\67\ During the same period, DHS 
    approved 66,000 Form I-601A applications and denied 27,000.\68\
    ---------------------------------------------------------------------------
    
        \66\ FY 2013 was October 1, 2012 to September 30, 2013.
        \67\ DHS calculated the average Form I-601A receipts per month 
    since the provisional waiver process's implementation in March 2013 
    through the end of FY 2015, which equaled 3,467.65, and multiplied 
    the average monthly receipts by 12 to determine the annual average.
        \68\ Approvals and denials reflect actual cases adjudicated, 
    which do not directly correspond to filing receipts for the same 
    year.
    ---------------------------------------------------------------------------
    
        Of the provisional waiver applications adjudicated from FY 2013 to 
    FY 2015, USCIS denied a total of 9 percent for the following reasons: 
    An applicant's lack of a qualifying relative for the waiver's extreme 
    hardship determination (0.8 percent); \69\ reason to believe an 
    applicant would be inadmissible based on grounds other than unlawful 
    presence at the time of the immigrant visa interview (7.2 percent); DOS 
    initially acting before January 3, 2013 to schedule an applicant's 
    immigrant visa interview (0.1 percent); and an applicant being subject 
    to a final order
    
    [[Page 50266]]
    
    (0.9 percent).\70\ With this final rule's elimination or modification 
    of these ineligibility grounds, more individuals will presumably be 
    eligible for provisional waivers.
    ---------------------------------------------------------------------------
    
        \69\ Note that applicants denied for not having a qualifying 
    U.S. citizen spouse or parent include those who could potentially 
    have LPR spouses and/or parents who might experience extreme 
    hardship as well as those who attempted to demonstrate hardship to a 
    U.S. citizen child-a relative who is not a qualifying relative for 
    the purposes of the unlawful presence waiver, provisional or not. 
    The exact number of denials according to these different 
    demonstrations is unknown. Source: Email correspondence with USCIS' 
    National Benefits Center on November 24, 2015.
        \70\ Source: Email correspondence with USCIS' National Benefits 
    Center on October 7, 2015 and December 7, 2015.
    ---------------------------------------------------------------------------
    
        The actual Form I-601A filing demands illustrated in Table 2 differ 
    from the estimates in the 2013 Rule's economic impact analysis. When 
    DHS conducted the 2013 Rule's economic impact analysis, DHS did not 
    have statistics on unlawful presence inadmissibility findings for 
    certain immediate relatives that would have allowed for a precise 
    calculation of the rule's impact. Due to these limitations, DHS instead 
    estimated the rule's impact based on various demand scenarios. In the 
    analysis for this final rule, DHS uses actual USCIS receipts for 
    provisional waiver applications to determine the future demand for 
    provisional waivers, as discussed later.
    
                       Table 2--Historical Numbers of Form I-601A Receipts, Approvals, and Denials
    ----------------------------------------------------------------------------------------------------------------
                Fiscal year                         Month                Receipts        Approvals        Denials
    ----------------------------------------------------------------------------------------------------------------
    2013...............................  Mar........................           1,306               0               0
                                         Apr........................           2,737               5               2
                                         May........................           3,267              52              14
                                         Jun........................           3,119             226             238
                                         Jul........................           3,425           1,006             603
                                         Aug........................           3,075           1,435             790
                                         Sep........................           2,798           1,749             438
                                                                     -----------------------------------------------
        FY 2013 Total..................  ...........................          19,727           4,473           2,085
    2014...............................  Oct........................           2,886           1,465             602
                                         Nov........................           2,697           1,456             562
                                         Dec........................           2,641           1,708             532
                                         Jan........................           2,256           1,616             780
                                         Feb........................           2,483           1,282             579
                                         Mar........................           2,990           1,216             987
                                         Apr........................           3,266           1,363             996
                                         May........................           3,650           2,052             708
                                         Jun........................           4,184           3,151           1,100
                                         Jul........................           3,778           4,211           1,460
                                         Aug........................           3,907           3,912           1,801
                                         Sep........................           4,237           4,075           1,484
                                                                     -----------------------------------------------
        FY 2014 Total..................  ...........................          38,975          27,507          11,591
    2015...............................  Oct........................           4,540           4,196           1,469
                                         Nov........................           3,728           2,167             951
                                         Dec........................           4,103           2,838           1,180
                                         Jan........................           3,370           3,011           1,433
                                         Feb........................           3,402           2,986           1,381
                                         Mar........................           4,588           2,024             960
                                         Apr........................           4,176           2,966           1,138
                                         May........................           4,030           2,708             934
                                         Jun........................           4,364           2,883           1,139
                                         Jul........................           4,162           2,712             946
                                         Aug........................           4,019           2,939             805
                                         Sep........................           4,313           2,880             733
        FY 2015 Total..................  ...........................          48,795          34,310          13,069
                                                                     -----------------------------------------------
            FY 2013-FY 2015 Total......  ...........................         107,497          66,290          26,745
            FY 2013-FY 2015 Annual       ...........................          41,612          25,661          10,353
             Average \71\.
    ----------------------------------------------------------------------------------------------------------------
    Note: Approvals and denials reflect actual cases adjudicated, which do not directly correspond to filing
      receipts for the month.
    Source: USCIS' Office of Performance and Quality.
    
        Table 3 shows DOS's historical findings of immigrant visa 
    ineligibility due to only unlawful presence inadmissibility grounds, 
    which DOS revised for FY 2010 through FY 2014 following the 2015 
    Proposed Rule's publication.\72\ Between FY 2010 and FY 2015, DOS 
    recorded ineligibility due to only unlawful presence for almost 118,000 
    immediate relative visas and 24,000 all other immigrant visas.\73\
    ---------------------------------------------------------------------------
    
        \71\ To determine these annual averages, DHS calculated the 
    average Form I-601A receipts, approvals, and denials per month since 
    implementation of the provisional unlawful presence waiver process 
    in March 2013 through the end of FY 2015 and multiplied those 
    averages by 12. The average monthly receipts equaled 3,467.65, while 
    approvals measured 2,138.39 and denials equaled 862.74.
        \72\ DOS determined that the rules it used to collect the 
    inadmissibility and ineligibility data included in the 2015 Proposed 
    Rule resulted in errors. DOS has since revised its rules to correct 
    the errors.
        \73\ Of the ineligibility figures recorded for the ``all other 
    immigrants'' visa category, nearly 97 percent correspond to family-
    sponsored immigrant visa applications (which does not include 
    applications filed by immediate relatives of U.S. citizens), 2 
    percent correspond to employment-based immigrant visa applications, 
    1 percent correspond to Diversity Visa immigrant applications, and a 
    fraction of 1 percent correspond to certain special immigrant visa 
    applications.
    ---------------------------------------------------------------------------
    
        Table 4 shows DOS's historical findings of immigrant visa 
    ineligibility due to unlawful presence and any other inadmissibility 
    ground barring visa eligibility.\74\ DHS uses this population in part 
    to estimate the number of
    
    [[Page 50267]]
    
    immediate relatives who will become eligible for provisional waivers 
    through this final rule's elimination or modification of certain 
    provisional waiver ineligibilities currently in place.
    ---------------------------------------------------------------------------
    
        \74\ Other inadmissibility grounds barring visa eligibility can 
    be found in INA section 212(a), 8 U.S.C. 1182(a).
    
                 Table 3--Number of Immigrant Visa Ineligibility Findings Due to Only Unlawful Presence
    ----------------------------------------------------------------------------------------------------------------
                                                                            Visa category type
                                                                     --------------------------------
                               Fiscal year                                               All Other         Total
                                                                         Immediate      immigrants
                                                                      relatives \75\       \76\
    ----------------------------------------------------------------------------------------------------------------
    2010............................................................          15,870           2,739          18,609
    2011............................................................          18,569           5,043          23,612
    2012............................................................          19,989           5,100          25,089
    2013............................................................          10,136           4,126          14,262
    2014............................................................          18,201           3,406          21,607
    2015............................................................          34,801           3,522          38,323
                                                                     -----------------------------------------------
        Total.......................................................         117,566          23,936         141,502
            FY 2013-FY 2015 Annual Average..........................          21,046           3,685          24,731
    ----------------------------------------------------------------------------------------------------------------
    Source: Email correspondence with the U.S. Department of State's Bureau of Consular Affairs on December 2, 2015.
    
        Population generally addressed in the 2013 Rule (certain immediate 
    relatives of U.S. citizens).
        Population impacted by this rule, excluding immediate relatives.
    
    ---------------------------------------------------------------------------
    
        \75\ Population generally addressed in the 2013 Rule (certain 
    immediate relavies of U.S. citizens).
        \76\ Population Impacted by this rule, excluding immediate 
    relatives.
    
        Table 4--Number of Immigrant Visa Ineligibility Findings Due to Unlawful Presence and any Other Ground of
                                         Inadmissibility (or Visa Ineligibility)
    ----------------------------------------------------------------------------------------------------------------
                                                                            Visa category type
                                                                     --------------------------------
                               Fiscal year                               Immediate       All other         Total
                                                                         relatives      immigrants
    ----------------------------------------------------------------------------------------------------------------
    2010............................................................           4,655             984           5,639
    2011............................................................           4,679           1,768           6,447
    2012............................................................           5,436           1,763           7,199
    2013............................................................           3,891           1,471           5,362
    2014............................................................           3,298           1,113           4,411
    2015............................................................           4,323           1,087           5,410
                                                                     -----------------------------------------------
        Total.......................................................          26,282           8,186          34,468
            FY 2013-FY 2015 Annual Average..........................           3,837           1,224           5,061
    ----------------------------------------------------------------------------------------------------------------
    Source: Email correspondence with the U.S. Department of State's Bureau of Consular Affairs on December 2, 2015.
    
        In the 2015 Proposed Rule, DHS based the demand for Form I-601A 
    applications with and without the rule on the FY 2013 to FY 2014 
    average ratio of Form I-601A receipts to immigrant visa ineligibility 
    findings based on unlawful presence inadmissibility grounds. Since the 
    publication of the proposed rule, DOS provided DHS with revised data. 
    Based on a review of the revised DOS ineligibility data, DHS has 
    determined that using a year-specific ratio of receipts to 
    ineligibility findings is no longer the best option to predict future 
    provisional waiver demand because of recent changes in Form I-601A 
    filing trends. DOS's new data suggests that the majority of immediate 
    relatives found ineligible for an immigrant visa by DOS based on 
    unlawful presence inadmissibility grounds in one fiscal year have filed 
    provisional unlawful presence waivers of inadmissibility prior to DOS's 
    immigrant visa ineligibility finding, though the dates of these 
    separate events is unknown. Because the time lag between such filings 
    and ineligibility findings is unknown, making same-year comparisons 
    between these data could result in erroneous conclusions. As such, DHS 
    believes it is most appropriate to estimate the future demand for 
    provisional waivers in the absence of this rule using historical Form 
    I-601A filing data.
        In the absence of this rule, DHS projects that Form I-601A receipts 
    from immediate relative immigrants would increase from their three-year 
    average of 41,612 (see Table 2) by 2.5 percent per year based on the 
    compound annual growth rate of the unauthorized immigrant population 
    living in the United States between 2000 and 2012.\77\ Under this 
    method, USCIS would receive a projected 478,000 provisional waiver 
    applications across 10 years of analysis in the absence of this rule, 
    as shown in Table 5.
    ---------------------------------------------------------------------------
    
        \77\ Calculated by comparing the estimated unauthorized 
    immigrant population living in the United States in 2000 (8,500,000) 
    to the estimated unauthorized immigrant population living in the 
    United States in 2012 (11,400,000). In recent years, the estimated 
    unauthorized immigrant population has decreased. DHS uses the 
    historical growth rate in the unauthorized immigrant population from 
    2000 to 2012 because it most likely reflects the population impacted 
    by this rule. This population includes those who have likely been 
    unlawfully present in the United States for an extended period and 
    who have already started the immigrant visa process by having an 
    approved petition. Source: U.S. Department of Homeland Security, 
    Office of Immigration Statistics. Estimates of the Unauthorized 
    Immigrant Population Residing in the United States: January 2012, 
    Figure 1, Unauthorized Immigrant Population: 2000-2012, Mar. 2013. 
    Available at http://www.dhs.gov/sites/default/files/publications/ois_ill_pe_2012_2.pdf.
    
    [[Page 50268]]
    
    
    
    Table 5--Projected Number of Immediate Relative Form I-601A Applications
           in the Absence of Rule (Population Addressed in 2013 Rule)
    ------------------------------------------------------------------------
                                                                Form I-601A
                                                                Receipts--
                           Fiscal year                           Immediate
                                                              Relatives \78\
    ------------------------------------------------------------------------
    Year 1..................................................          42,652
    Year 2..................................................          43,719
    Year 3..................................................          44,812
    Year 4..................................................          45,932
    Year 5..................................................          47,080
    Year 6..................................................          48,257
    Year 7..................................................          49,464
    Year 8..................................................          50,700
    Year 9..................................................          51,968
    Year 10.................................................          53,267
                                                             ---------------
        Total...............................................         477,851
    ------------------------------------------------------------------------
    Notes: The yearly estimates in this table were originally calculated
      using unrounded figures. Thereafter, all yearly estimates were
      simultaneously rounded for tabular presentation.
    
    5. Population Affected by Rule
    ---------------------------------------------------------------------------
    
        \78\ Estimated number of provisional waiver applications from 
    the eligible population of immediate relatives. These applications 
    do not necessarily correspond to waiver approvals.
    ---------------------------------------------------------------------------
    
        DHS does not believe this rule will induce any new demand above the 
    status quo for filing petitions or immigrant visa applications for this 
    expanded group of individuals. DHS bases this assumption on the fact 
    that most of the newly eligible visa categories to which this rule will 
    now apply (namely, family-sponsored, employment-based, diversity, and 
    certain special immigrant visa categories) are generally subject, 
    unlike the immediate relative category, to statutory visa issuance 
    limits and lengthy visa availability waits due to oversubscription.\79\ 
    Even with this rule's elimination or modification of specific 
    provisional waiver ineligibility criteria currently in place, DHS does 
    not anticipate that a related rise in the demand for immigrant visas 
    for immediate relatives of U.S. citizens will occur given the low 
    historical share of applications denied for these reasons 
    (approximately 9 percent as mentioned earlier). In addition, because 
    immediate relative visas are readily available, immediate relatives who 
    were denied a provisional waiver previously have likely continued on 
    with the consular interview process to obtain LPR status.\80\ 
    Therefore, DHS did not estimate that these immediate relatives would 
    reapply for a provisional waiver. Furthermore, there is no evidence 
    that the Secretary's November 2014 memorandum \81\ on the expansion of 
    the provisional waiver process spurred a significant increase in 
    filings of the Petition for Alien Relative (Form I-130) or Immigrant 
    Petition for Alien Worker (Form I-140).\82\ Thus, DHS does not expect 
    that this rule will increase the demand for the immigrant visa 
    categories to which it applies.
    ---------------------------------------------------------------------------
    
        \79\ Family-sponsored immigrant visa applicants, who represent 
    nearly 97 percent of the ``all other immigrants'' population found 
    ineligible due to only unlawful presence inadmissibility grounds, 
    currently face visa oversubscription. This means that any new 
    family-sponsored visa applicants must wait in line for available 
    visas. Depending on the applicant's country of chargeability and 
    preference category, this wait could be many years. Source: U.S. 
    Department of State. ``Visa Bulletin: Immigrant Numbers for December 
    2015,'' IX (87), Nov. 2015. Available at http://travel.state.gov/content/dam/visas/Bulletins/visabulletin_December2015.pdf.
        \80\ Immigrant visas for immediate relatives of U.S. citizens 
    are unlimited, so they are always available. See INA section 
    201(b)(2)(A)(i), 8 U.S.C. 1151(b)(2)(A)(i). This means that 
    immediate relatives do not have to wait in line for a visa number to 
    become available for them to immigrate. Sources: U.S. Citizenship 
    and Immigration Services. ``Visa Availability and Priority Dates.'' 
    Available at http://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-and-priority-dates (last reviewed/
    updated Nov. 5, 2015).
        \81\ See Memorandum from Jeh Charles Johnson, Secretary, DHS, to 
    L[eacute]on Rodr[iacute]guez, Director, USCIS, Expansion of the 
    Provisional Waiver Program (Nov. 20, 2014). Available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_i601a_waiver.pdf.
        \82\ Based on a DHS comparison of Form I-130 and Form I-140 
    filings during the three months immediately following the 
    Secretary's 2014 memorandum on the expansion of the provisional 
    waiver program and during those same three months in FY 2013 and FY 
    2014.
    ---------------------------------------------------------------------------
    
        With this rule's implementation, the number of provisional waiver 
    applications is expected to increase from the figures listed in Table 5 
    as the provisional waiver eligibility criteria expands. This rule's 
    broadened group of qualifying relatives for the provisional waiver's 
    extreme hardship determination as well as its elimination or 
    modification of current provisional waiver ineligibility provisions 
    will allow some immediate relatives of U.S. citizens and LPRs to become 
    eligible for provisional waivers. All other immigrant visa applicants 
    \83\ who are present in the United States and who otherwise meet the 
    requirements of the provisional waiver process described in this final 
    rule will also become eligible for provisional waivers.
    ---------------------------------------------------------------------------
    
        \83\ As previously mentioned, the phrase ``all other immigrant 
    visa applicants'' encompasses the following immigrant visa 
    categories: family-sponsored, employment-based, Diversity Visa, and 
    (certain) special immigrant visa applicants. Examples of family 
    relationships that fall under ``all other immigrant visa 
    applicants'' include, but are not limited to, adult sons and 
    daughters of U.S. citizens, brothers and sisters of U.S. citizens, 
    and spouses and children of LPRs.
    ---------------------------------------------------------------------------
    
    Immediate Relatives Affected by Rule
        Some immediate relatives of U.S. citizens were denied provisional 
    waivers under the 2013 Rule because USCIS had ``reason to believe'' 
    that they were subject to a ground of inadmissibility other than 
    unlawful presence. Others were denied because they were subject to a 
    final order. This rule eliminates denials based on the reason-to-
    believe standard and modifies the ineligibility criteria related to 
    final orders, thus allowing additional immediate relatives to become 
    eligible for provisional waivers. As previously mentioned, Table 4 
    shows DOS's historical findings of immigrant visa ineligibility among 
    immediate relatives due to unlawful presence and any other ground for 
    denying visa issuance, such as being subject to a final order.\84\ DHS 
    believes that the population of immediate relatives found ineligible 
    for immigrant visas based on unlawful presence and any other ground of 
    inadmissibility shown in Table 4 best predicts the share of immediate 
    relatives affected by the elimination or modification of ineligibility 
    criteria in this rule, as the DOS figures presumably account for these 
    provisional waiver ineligibilities.\85\ According to the FY 2013 to FY 
    2015 annual average number of immediate relatives found ineligible for 
    visas based on unlawful presence and any other ground of 
    inadmissibility (and visa ineligibility) (3,837; see Table 4), and the 
    historical 2.5 percent growth in the unauthorized immigrant population, 
    DHS estimates that 3,933 immediate relatives will become eligible, and 
    consequently apply, for provisional waivers as a direct result of this 
    rule's expanded waiver eligibility during the rule's first year of 
    implementation (see Table 6).
    ---------------------------------------------------------------------------
    
        \84\ Other grounds of inadmissibility barring visa eligibility 
    can be found in INA section 212(a), 8 U.S.C. 1182(a).
        \85\ These ineligibility findings likely include the previously 
    discussed 9 percent of historical Form I-601A applicants denied for 
    the following reasons: an applicant's lack of a qualifying relative 
    for the waiver's extreme hardship determination; reason to believe 
    an applicant would be inadmissible based on grounds other than 
    unlawful presence at the time of the immigrant visa interview; DOS 
    initially acting before January 3, 2013 to schedule an applicant's 
    immigrant visa interview; and an applicant being subject to a final 
    order. However, due to data limitations, DHS does not know the exact 
    number of ineligibility findings that correspond to provisional 
    waiver denials.
    ---------------------------------------------------------------------------
    
        Table 6 shows that over a 10-year period of analysis, USCIS will 
    receive approximately 44,000 provisional waiver applications from 
    immediate relatives now eligible for provisional waivers based on this 
    rule's elimination or modification of specific provisional
    
    [[Page 50269]]
    
    waiver ineligibility criteria. These figures reflect the assumption 
    that the population of individuals historically found ineligible for 
    immigrant visas based on unlawful presence and any other ground of 
    inadmissibility will apply for provisional waivers even though they may 
    still be inadmissible on another ground that would bar them from 
    receiving an immigrant visa. However, these figures do not account for 
    immediate relatives of U.S. citizens and LPRs who could become eligible 
    for provisional waivers through this rule's broadened group of 
    qualifying relatives for the provisional waiver's extreme hardship 
    determination and its elimination of DOS scheduling date requirements. 
    Due to data limitations, DHS cannot precisely measure the number of 
    individuals impacted by these amendments, though based on historical 
    denials, the number impacted will likely be small.\86\
    ---------------------------------------------------------------------------
    
        \86\ Of the provisional waiver applications adjudicated from FY 
    2013 to FY 2015, USCIS denied less than 1,000 applications in total 
    based on an applicant's lack of a qualifying relative for the 
    waiver's extreme hardship determination and for DOS initially acting 
    before January 3, 2013 to schedule an applicant's immigrant visa 
    interview. Source: Email correspondence with USCIS' National 
    Benefits Center on October 7, 2015 and December 7, 2015.
    ---------------------------------------------------------------------------
    
        Due to additional data limitations, DHS cannot determine the exact 
    number of immediate relatives eligible to apply for provisional waivers 
    under the 2013 Rule who either continued taking steps necessary to 
    obtain LPR status or who abandoned the immigrant visa process 
    altogether after being denied provisional waivers for the ineligibility 
    criteria eliminated or modified with this rule (e.g., DOS scheduling 
    date requirements). DHS assumes for the purpose of this analysis that 
    those immediate relatives who applied for provisional waivers prior to 
    this final rule but were denied for the criteria eliminated or modified 
    with this rule have continued taking the steps necessary to obtain LPR 
    status rather than delay their immigration process. These individuals 
    have likely sought waivers of the unlawful presence grounds of 
    inadmissibility through the Form I-601 waiver process as part of 
    obtaining their LPR status. For these reasons, DHS does not believe 
    this rule will affect certain immediate relatives of U.S. citizens 
    previously denied provisional waivers due to this rule's eliminated or 
    modified criteria, and thus does not consider these individuals in the 
    population affected by this rule. As such, Table 6 does not include 
    these individuals.
    
    Table 6--Projected Number of Immediate Relative Form I-601A Applications
                               Resulting From Rule
    ------------------------------------------------------------------------
                                                              Form I-601A
                                                              Receipts--
                                                               immediate
                                                           relatives  newly
                         Fiscal year                         eligible for
                                                              provisional
                                                          waiver under  rule
                                                                 \87\
    ------------------------------------------------------------------------
    Year 1..............................................               3,933
    Year 2..............................................               4,031
    Year 3..............................................               4,132
    Year 4..............................................               4,235
    Year 5..............................................               4,341
    Year 6..............................................               4,450
    Year 7..............................................               4,561
    Year 8..............................................               4,675
    Year 9..............................................               4,792
    Year 10.............................................               4,912
                                                         -------------------
        Total...........................................              44,062
    ------------------------------------------------------------------------
    Notes: The yearly estimates in this table were originally calculated
      using unrounded figures. Thereafter, all yearly estimates were
      simultaneously rounded for tabular presentation.
    
    All Other Immigrants Affected by Rule
    ---------------------------------------------------------------------------
    
        \87\ Estimated number of provisional waiver applications from 
    the population of immediate relatives inadmissible due to unlawful 
    presence and any other immigrant visa inadmissibility ground. These 
    applications do not necessarily correspond to waiver approvals.
    ---------------------------------------------------------------------------
    
        In addition to the population of immediate relatives illustrated in 
    Table 6, this rule will affect a portion of all other immigrant visa 
    applicants. To capture the population of all other immigrant visa 
    applicants (that is, those who are not immediate relative immigrant 
    visa applicants) that may file for a provisional waiver due to this 
    rule, DHS uses the following historical data: (1) DOS immigrant visa 
    ineligibility findings due to only unlawful presence inadmissibility 
    grounds (the population included in the 2015 Proposed Rule); (2) DOS 
    immigrant visa ineligibility findings due to unlawful presence and any 
    other inadmissibility ground (the population potentially now included 
    in this final rule); and (3) growth in the unauthorized immigrant 
    population. In particular, DHS applies the previously discussed 2.5 
    percent compound annual growth rate of unauthorized immigrants from 
    2000 to 2012 to the sum of the FY 2013 to FY 2015 annual averages of 
    all other immigrant visa ineligibility findings due to: (1) Only 
    unlawful presence inadmissibility grounds; and (2) unlawful presence 
    and any other inadmissibility ground, which equals 4,909 (see Table 3 
    and Table 4).\88\ For Year 1, DHS projects that Form I-601A 
    applications from the population of all other immigrants now eligible 
    for provisional waivers will measure approximately 5,032. For Years 2 
    through 10, applications are expected to range from 5,158 to 6,284 (see 
    Table 7).\89\ These figures partly reflect the assumption that the 
    population of individuals historically found ineligible for immigrant 
    visas based on unlawful presence and any other ground of 
    inadmissibility will apply for provisional waivers even though they may 
    still be inadmissible on another ground that would bar them from 
    receiving an immigrant visa.
    ---------------------------------------------------------------------------
    
        \88\ Calculated as the FY 2013-FY 2015 average number of all 
    other immigrant visa ineligibility findings due to only unlawful 
    presence (3,685) plus the FY 2013-FY 2015 average number of all 
    other immigrant visa ineligibility findings due to unlawful presence 
    and any other ground of inadmissibility (1,224) = 4,909.
        \89\ Year 1 figure calculated as the FY 2013-FY 2015 average 
    number of all other immigrant visa ineligibility findings due to: 
    (1) Only unlawful presence, and (2) unlawful presence and any other 
    ground of inadmissibility of 4,909 multiplied by the assumed 2.5 
    percent growth rate (that is, 1.025), which equals 5,032.
    
          Table 7--Projected Number of All Other Immigrant Form I-601A
                        Applications Resulting From Rule
    ------------------------------------------------------------------------
                                                                Form I-601A
                                                              receipts-- all
                           Fiscal year                             other
                                                                immigrants
                                                                   \90\
    ------------------------------------------------------------------------
    Year 1..................................................           5,032
    Year 2..................................................           5,158
    Year 3..................................................           5,286
    Year 4..................................................           5,419
    Year 5..................................................           5,554
    Year 6..................................................           5,693
    Year 7..................................................           5,835
    Year 8..................................................           5,981
    Year 9..................................................           6,131
    Year 10.................................................           6,284
        Total...............................................          56,373
    ------------------------------------------------------------------------
    Notes: The yearly estimates in this table were originally calculated
      using unrounded figures. Thereafter, all yearly estimates were
      simultaneously rounded for tabular presentation.
    
    Total Population Affected by Rule
    ---------------------------------------------------------------------------
    
        \90\ Estimated number of provisional waiver applications from 
    the population of all other immigrants ineligible due to: (1) Only 
    unlawful presence; and (2) unlawful presence and any other ground of 
    inadmissibility. These applications do not necessarily correspond to 
    waiver approvals.
    ---------------------------------------------------------------------------
    
        Table 8 outlines the entire population of immigrant visa applicants 
    potentially impacted by this rule, as measured by the sum of Form I-
    601A receipts listed in Table 6 and Table 7. Across a 10-year period of 
    analysis, DHS estimates that the provisional waiver applications from 
    this rule's expanded population of individuals (including immediate 
    relatives of U.S. citizens and LPRs, and
    
    [[Page 50270]]
    
    family-sponsored, employment-based, Diversity Visa, and (certain) 
    special immigrant visa applicants) will be nearly 100,000. These 
    provisional waiver applications may ultimately result in waiver 
    approvals or denials. Note that Table 8 presents only the additional 
    Form I-601A filings that will occur as a result of this rule; it does 
    not account for the provisional waiver applications that DHS 
    anticipates will be filed in the absence of this rule by currently 
    eligible certain immediate relatives of U.S. citizens (see Table 5). As 
    stated earlier, the figures in Table 8 may underestimate the total Form 
    I-601A applications resulting from this rule because they do not 
    account for immediate relatives of U.S. citizens and LPRs who could 
    become eligible for provisional waivers through this rule's broadened 
    group of qualifying relatives for the provisional waiver's extreme 
    hardship determination and its elimination of DOS scheduling date 
    requirements. They could also overestimate the total Form I-601A 
    applications resulting from this rule because they are partly based on 
    the assumption that the population of individuals historically found 
    ineligible for immigrant visas based on unlawful presence and any other 
    ground of inadmissibility will apply for provisional waivers even 
    though they may still be inadmissible on another ground that would bar 
    them from receiving an immigrant visa.
    
           Table 8--Total Form I-601A Applications Resulting From Rule
    ------------------------------------------------------------------------
                                                                Form I-601A
                           Fiscal year                           receipts
    ------------------------------------------------------------------------
    Year 1..................................................           8,965
    Year 2..................................................           9,189
    Year 3..................................................           9,418
    Year 4..................................................           9,654
    Year 5..................................................           9,895
    Year 6..................................................          10,143
    Year 7..................................................          10,396
    Year 8..................................................          10,656
    Year 9..................................................          10,923
    Year 10.................................................          11,196
        Total...............................................         100,435
    ------------------------------------------------------------------------
    Notes: The yearly estimates in this table were originally calculated
      using unrounded figures. Thereafter, all yearly estimates were
      simultaneously rounded for tabular presentation.
    
        All public comments about specific elements of the projections, 
    costs, or benefits of the rule are discussed earlier in the preamble.
    6. Costs and Benefits
    Costs
        Individuals who are newly eligible to apply for a provisional 
    waiver strictly under this rule will bear the costs of this regulation. 
    Although the waiver expansion may require the Federal Government 
    (namely, DHS and USCIS) to expend additional resources on related 
    adjudication personnel, equipment (e.g., computers and telephones), and 
    occupancy demands, DHS expects these costs to be offset by the 
    additional fee revenue collected from the Form I-601A filing fee and 
    the biometric services fee. Currently, the filing fees for Form I-601A 
    and biometric services are $585 and $85, respectively.\91\ Accordingly, 
    DHS does not believe this rule will impose additional net costs on the 
    Federal Government.
    ---------------------------------------------------------------------------
    
        \91\ Source of fee rates: U.S. Citizenship and Immigration 
    Services. ``I-601A, Application for Provisional Unlawful Presence 
    Waiver.'' Available at http://www.uscis.gov/i-601a (last reviewed/
    updated Oct. 7, 2015). The Form I-601A filing fee and biometric 
    services fee are subject to change through the normal fee review 
    cycle and any subsequent rulemaking issued by USCIS/DHS. USCIS/DHS 
    will consider the impact of the provisional waiver and biometrics 
    process workflows and resource requirements as a normal part of its 
    biennial fee review. The biennial fee review determines if fees for 
    immigration benefits are sufficient in light of resource needs and 
    filing trends. See INA section 286(m), 8 U.S.C. 1356(m).
    ---------------------------------------------------------------------------
    
        With the exception of applicants subject to final orders,\92\ 
    eligible individuals must generally first complete Form I-601A and 
    submit it to USCIS with its current $585 filing fee and $85 biometric 
    services fee to receive a provisional waiver under this rule. DHS 
    estimates the time burden of completing Form I-601A to be 1.5 hours, 
    which translates to a time, or opportunity, cost of $15.89 per 
    application.\93\ DHS calculates the Form I-601A application's 
    opportunity cost to individuals by first multiplying the current 
    Federal minimum wage of $7.25 per hour by 1.46 to account for the full 
    cost of employee benefits (such as paid leave, insurance, and 
    retirement), which results in a time value of $10.59 per hour.\94\ 
    Then, DHS multiplies the $10.59 hourly time value by the current 1.5-
    hour Form I-601A completion time burden to determine the opportunity 
    cost for individuals to complete Form I-601A ($15.89). DHS recognizes 
    that the individuals impacted by the rule are generally unlawfully 
    present and not eligible to work; however, consistent with other DHS 
    rulemakings, DHS uses wage rates as a mechanism to estimate the 
    opportunity costs to individuals associated with completing this rule's 
    required application and biometrics collection. The cost for applicants 
    to initially file Form I-601A, including only the $585 filing fee and 
    opportunity cost, equals $600.89.
    ---------------------------------------------------------------------------
    
        \92\ As previously stated, individuals subject to a final order 
    may now seek a provisional waiver only if they also request (and are 
    approved for) consent to reapply for admission under INA section 
    212(a)(9)(A)(iii), 8 U.S.C. 1182(a)(9)(A)(iii) via an Application 
    for Permission to Reapply for Admission into the United States After 
    Deportation or Removal (Form I-212). Filing and receiving approval 
    for a Form I-212 is a requirement already in place for individuals 
    subject to inadmissibility under INA section 212(a)(9)(A), 8 U.S.C. 
    1182(a)(9)(A), to be eligible for an immigrant visa. Thus, USCIS 
    does not include the cost to file Form I-212 to the applicable 
    population of provisional waiver applicants in this rule.
        \93\ See 80 FR 16688 (Mar. 30, 2015) for the estimated Form I-
    601A completion time burden.
        \94\ Federal minimum wage information source: U.S. Department of 
    Labor, Wage and Hour Division. ``Wages- Minimum Wage.'' Available at 
    http://www.dol.gov/dol/topic/wages/minimumwage.htm (last accessed 
    Dec. 7, 2015). Employer benefits adjustment information source: U.S. 
    Department of Labor, Bureau of Labor Statistics. ``Economic News 
    Release: Employer Costs for Employee Compensation- September 2015, 
    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, September 2015- All 
    Workers.'' Dec. 9, 2015. Available at http://www.bls.gov/schedule/archives/ecec_nr.htm#current.
    ---------------------------------------------------------------------------
    
        After USCIS receives an applicant's completed Form I-601A and its 
    filing and biometric services fees, the agency sends the applicant a 
    notice scheduling him or her to visit a USCIS Application Support 
    Center (ASC) for biometrics collection. Along with an $85 biometric 
    services fee, the applicant will incur the following costs to comply 
    with the provisional waiver's biometrics submission requirement: (1) 
    The opportunity cost of traveling to an ASC, (2) the opportunity cost 
    of submitting his or her biometrics, and (3) the mileage cost of 
    traveling to an ASC. While travel times and distances to an ASC vary, 
    DHS estimates that an applicant's average roundtrip distance to an ASC 
    is 50 miles, and that the average time for that trip is 2.5 hours. DHS 
    estimates that an applicant waits an average of 1.17 hours for service 
    and to have his or her biometrics collected at an ASC, adding up to a 
    total biometrics-related time burden of 3.67 hours.\95\ By applying the 
    $10.59 hourly time value for individuals to the total biometrics-
    related time burden of 3.67 hours, DHS finds that the opportunity cost 
    for a provisional waiver applicant to travel to and from an ASC, and to 
    submit biometrics, will total $38.87.\96\ In addition to the 
    opportunity cost of providing biometrics, provisional waiver applicants 
    will experience travel costs related to biometrics collection. The cost 
    of such travel will equal $28.75 per trip, based on the assumed 50-mile
    
    [[Page 50271]]
    
    roundtrip distance to an ASC and the General Services Administration's 
    travel rate of $0.575 per mile.\97\ DHS assumes that each applicant 
    will travel independently to an ASC to submit his or her biometrics, 
    meaning that this rule will impose a time cost on each provisional 
    waiver applicant. Adding the fee, opportunity, and travel costs of 
    biometrics collection together, DHS estimates that the provisional 
    waiver's requirement to submit biometrics will cost a total of $152.62 
    per Form I-601A filing.
    ---------------------------------------------------------------------------
    
        \95\ See 80 FR 16688 (Mar. 30, 2015) for Form I-601A biometrics 
    collection time burden.
        \96\ 3.67 hours multiplied by $10.59 per hour equals $38.87.
        \97\ 50 miles multiplied by $0.575 per mile equals $28.75. See 
    79 FR 78437 (Dec. 30, 2014) for the General Services 
    Administration's mileage rate.
    ---------------------------------------------------------------------------
    
        Accounting for all of the fee, time, and travel costs to comply 
    with the provisional waiver requirements, DHS finds that each Form I-
    601A filing will cost an applicant $753.51. Table 9 shows that the 
    overall cost of this rule to the expanded population of provisional 
    waiver applicants will measure $75.7 million (undiscounted) over the 
    10-year period of analysis. DHS calculates this rule's total cost to 
    applicants by multiplying the individual cost of completing the 
    provisional waiver application requirements ($753.51) by the number of 
    newly eligible individuals projected to apply for provisional waivers 
    each year following the implementation of this rule (see Table 8). In 
    present value terms, this rule will cost newly eligible waiver 
    applicants $52.4 million to $64.2 million across a 10-year period at 7 
    percent and 3 percent discount rates, respectively (see Table 9). 
    Because this rule will not generate any net costs to the Federal 
    Government (as discussed previously), these costs to applicants also 
    reflect the total cost of this rule. Depending on the population of 
    individuals who apply for provisional waivers beyond the projections 
    shown in Table 8, the costs of this rule may be over- or 
    underestimated.
    
          Table 9--Total Cost of Rule to Applicants/Total Cost of Rule
    ------------------------------------------------------------------------
                                                               Total waiver
                                                                  cost to
                           Fiscal year                          applicants/
                                                               total cost of
                                                                   rule
    ------------------------------------------------------------------------
    Year 1..................................................      $6,755,217
    Year 2..................................................       6,924,003
    Year 3..................................................       7,096,557
    Year 4..................................................       7,274,386
    Year 5..................................................       7,455,981
    Year 6..................................................       7,642,852
    Year 7..................................................       7,833,490
    Year 8..................................................       8,029,403
    Year 9..................................................       8,230,590
    Year 10.................................................       8,436,298
                                                             ---------------
        10-Year Total: Undiscounted.........................      75,678,777
                                                             ---------------
        10-Year Total: Present Value, Discounted at 3             64,168,205
         percent............................................
                                                             ---------------
        10-Year Total: Present Value, Discounted at 7             52,429,216
         percent............................................
    ------------------------------------------------------------------------
    Notes: Estimates may not sum to total due to rounding. The cost
      estimates in this table are contingent upon Form I-601A filing (or
      receipt) projections as well as the discount rates applied.
    
    Benefits
        The benefits of this rule are largely the result of streamlining 
    the immigrant visa process for an expanded population of individuals 
    who are inadmissible to the United States due to unlawful presence. 
    This rule will provide applicants seeking provisional waivers and their 
    family members advance notice of USCIS' decision on their provisional 
    waiver application prior to leaving the United States for their 
    immigrant visa interviews abroad, offering many individuals the 
    certainty of knowing they have been provisionally approved for a waiver 
    of certain unlawful presence grounds of inadmissibility before 
    departing from the United States. For those newly eligible individuals 
    who receive a provisional waiver through this rule and their U.S. 
    citizen or LPR family members, this rule's primary benefits are its 
    reduced separation time among family members during the immigrant visa 
    process. Instead of attending multiple immigrant visa interviews and 
    waiting abroad while USCIS adjudicates a waiver application as required 
    under the Form I-601 process, the provisional waiver process allows 
    individuals to file a provisional waiver application while in the 
    United States and receive a notification of USCIS' decision on their 
    provisional waiver application before departing for DOS consular 
    processing of their immigrant visa applications. Although DHS cannot 
    estimate with precision the exact amount of separation time families 
    will save through this rule, DHS estimates that some newly eligible 
    individuals and their U.S. citizen or LPR family members could 
    experience several months of reduced separation time based on the 
    average adjudication time for Form I-601 waiver applications.\98\ In 
    addition to the humanitarian and emotional benefits derived from 
    reduced separation of families, DHS anticipates that the shortened 
    periods of family separation resulting from this rule may lessen the 
    financial burden U.S. citizens and LPRs face to support their immigrant 
    relatives while they remain outside of the country. Because of data 
    limitations, however, DHS cannot predict the exact financial impact of 
    this change.
    ---------------------------------------------------------------------------
    
        \98\ The average adjudication time of Form I-601 waivers is 
    currently over five months. Source: U.S. Citizenship and Immigration 
    Services. ``USCIS Processing Time Information for the Nebraska 
    Service Center-Form I-601.'' Available at https://egov.uscis.gov/cris/processTimesDisplayInit.do (last updated Feb. 11, 2016).
    ---------------------------------------------------------------------------
    
        Due to the unique nature of the Diversity Visa program, individuals 
    seeking an immigrant visa through that program and wishing to use the 
    provisional waiver process are likely to enjoy fewer overall benefits 
    from this rule than others. Although an individual may be selected to 
    participate in the Diversity Visa program, he or she may not ultimately 
    receive an immigrant visa due to visa unavailability. Under this rule, 
    Diversity Visa selectees and their derivatives who wish to use the 
    provisional waiver process may file a waiver application before knowing 
    whether their immigrant visa will ultimately be available to them. For 
    those pursuing the Diversity Visa track, the risk of completing the 
    provisional waiver process without being issued a visa is higher 
    compared to applicants of other immigrant visa categories filing Form 
    I-601A.\99\ If a Diversity Visa program selectee's provisional waiver 
    is approved but he or she is not ultimately issued an immigrant visa, 
    he or she will incur the costs but not obtain the benefits associated 
    with a provisional waiver.
    ---------------------------------------------------------------------------
    
        \99\ There is a statutory maximum of 55,000 diversity visas 
    authorized for allocation each fiscal year, but this number is 
    reduced by up to 5,000 visas set aside exclusively for use under the 
    Nicaraguan and Central American Relief Act. See NACARA section 
    203(d), as amended. DOS regularly selects more than 50,000 entrants 
    to proceed on to the next step for diversity visa processing to 
    ensure that all of the 50,000 diversity visas are allotted. Source: 
    U.S. Department of State, Office of the Spokesman. Special Briefing: 
    Senior State Department Official on the Diversity Visa Program. May 
    13, 2011. Available at http://www.state.gov/r/pa/prs/ps/2011/05/166811.htm.
    ---------------------------------------------------------------------------
    
        Based on USCIS and DOS efficiencies realized as a result of the 
    current provisional waiver process, DHS believes that this rule could 
    provide additional Federal Government efficiencies through its 
    expansion to a larger population. As previously
    
    [[Page 50272]]
    
    described in the 2013 Rule, the provisional waiver process allows USCIS 
    to communicate to DOS the status of the waiver application prior to an 
    applicant's immigrant visa interview abroad. Such early communication 
    eliminates the current need to transfer cases repeatedly between USCIS 
    and DOS when adjudicating an immigrant visa application and Form I-
    601.\100\ Through the provisional waiver process, DOS receives advance 
    notification from USCIS of the discretionary decision to provisionally 
    waive certain unlawful presence inadmissibility bars, allowing for 
    better allocation of valuable agency resources like time, storage 
    space, and human capital.
    ---------------------------------------------------------------------------
    
        \100\ See 78 FR 536 (Jan. 3, 2013).
    ---------------------------------------------------------------------------
    
    D. Executive Order 13132
    
        This final rule will not have substantial direct effects on the 
    States, on the relationship between the National Government and the 
    States, or on the distribution of power and responsibilities among the 
    various levels of government. Therefore, in accordance with section 6 
    of Executive Order 13132, it is determined that this rule does not have 
    sufficient federalism implications to warrant the preparation of a 
    federalism summary impact statement.
    
    E. Executive Order 12988 Civil Justice Reform
    
        Section 3(c) of Executive Order 12988 requires Executive agencies 
    to review regulations in light of applicable standards in section 3(a) 
    and section 3(b) to determine whether they are met or it is 
    unreasonable to meet one or more of them. DHS has completed the 
    required review and determined that, to the extent permitted by law, 
    this final rule meets the relevant standards of Executive Order 12988.
    
    F. Paperwork Reduction Act
    
        Under the Paperwork Reduction Act of 1995 (PRA), 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 44 U.S.C. 3507. This final rule requires that 
    an applicant seeking a provisional waiver complete an Application for 
    Provisional Unlawful Presence Waiver, Form I-601A, (OMB Control Number 
    1615-0123). This form is considered an information collection and is 
    covered under the PRA. USCIS is currently seeking OMB approval of 
    revisions that this final rule is causing to this information 
    collection instrument. DHS specifically requested public comments on 
    the proposed changes to the Application for Provisional Unlawful 
    Presence Waiver, Form I-601A, and the form instructions in the proposed 
    rule in accordance with 5 CFR 1320.11(a). OMB reviewed the request 
    filed in connection with the proposed rule and also filed comments in 
    accordance with 5 CFR 1320.11(c).
    1. Comments on the Information Collection
        DHS received several comments from the public directly related to 
    the revised form and its instructions, and, in accordance with 5 CFR 
    1320.11(f), DHS has considered the comments, provided detailed 
    responses to the comments on the form, and explained any modifications 
    it has made in its submission to OMB. The comments and responses are 
    summarized below.
    a. The General Need for a Standardized Application Form
        One commenter requested that USCIS adjudicate provisional waiver 
    requests without requiring use of a specific form. The commenter 
    believed requiring the completion of a standardized form effectively 
    requires applicants to retain an immigration attorney, who may exploit 
    them.
        DHS has not accepted the suggestion. USCIS forms are generally 
    designed for use by the public in a manner that standardizes the 
    collection of necessary information and streamlines the adjudication of 
    immigration benefits, which benefits both USCIS and applicants. Lack of 
    a standardized information collection document, as well as the 
    acceptance of ad hoc requests, could cause confusion and processing 
    delays that adversely impact both USCIS and applicants. Standardized 
    intake methods and forms help USCIS streamline processing requirements 
    and minimize its costs, thereby moderating the fees it must charge for 
    immigration benefit requests.
    b. Form I-601A, Information About Your Immigrant Visa Petition or Your 
    Immigrant Visa Case
        DHS received several suggestions for improving the section of the 
    form collecting information about the applicant's immigrant visa 
    petition. Two commenters asked USCIS to include a section for 
    applicants on Form I-601 \101\ to indicate the name of the employer, 
    sponsor, or petitioner. One of those commenters requested that the form 
    include a section for applicants to submit information about approved 
    Immigration Petitions for Alien Worker, Forms I-140, particularly for 
    beneficiaries under the employment-based third preference (EB-3) 
    category.
    ---------------------------------------------------------------------------
    
        \101\ Both commenters referred to Form I-601 rather than Form I-
    601A.
    ---------------------------------------------------------------------------
    
        DHS will not adopt this suggestion because it appears to be related 
    to Form I-601 and not Form I-601A, the form used for this rule. Form I-
    601A already includes questions about the name of the petitioning 
    employer or sponsor. See Part 3, Information About Your Immigrant Visa 
    Petition and Your Immigrant Visa Case, Item Numbers 3 through 6 of Form 
    I-601A.
        Two commenters wanted to ensure that derivative spouses of 
    principal beneficiaries are eligible for the provisional waiver. They 
    requested that USCIS specifically ask whether the individual is filing 
    this application based on an approved Form I-140 petition as a 
    derivative spouse of the primary beneficiary and to provide the USCIS 
    receipt number for the Form I-140 petition.
        DHS agrees with the need to collect additional information, as 
    suggested by the commenters, in light of this final rule's extension of 
    eligibility for the provisional waiver to spouses and children who 
    accompany or follow to join principal immigrants. DHS has added 
    questions to Form I-601A about derivative spouses or children that 
    should address the concern raised by the commenters.
    c. Form I-601A, Date of Entry and Place or Port of Entry
        One commenter suggested that Form I-601A applicants should be 
    permitted to use approximate dates and places of entry when filling out 
    the form, rather than only specific dates or places of entry. The 
    commenter reasoned that it may be difficult for some applicants, 
    especially those who entered at a young age or without lawful status, 
    to specify an exact entry date or place.
        Consistent with these comments, DHS has revised Part 1 of Form I-
    601A to permit applicants to provide approximate dates and places of 
    entry, if necessary. Specifically, DHS added the phrase ``on or about'' 
    to ``Date of Entry (mm/dd/yyyy)'' and ``(actual or approximate)'' after 
    ``Place or Port-of-Entry (City or Town).''
    d. Form I-601A, and Instructions, Certain Inadmissibility and Criminal 
    History Issues
        One commenter requested that USCIS should not require Form I-601A 
    applicants to provide all related court dispositions regarding criminal 
    history if the disclosure of such court dispositions is prohibited by 
    state law. The commenter was concerned that
    
    [[Page 50273]]
    
    such a requirement would effectively ask applicants to violate state 
    confidentiality laws or request records that may be impossible to 
    obtain.
        DHS did not adopt this suggestion. DHS does not believe that an 
    individual's request for his or her own court dispositions, and the 
    subsequent disclosure of that information to USCIS, would violate 
    confidentiality laws. Although state confidentiality laws may make it 
    improper for a clerk of court to release information about a case to a 
    third party, such laws do not prohibit the subjects of those 
    proceedings from obtaining information about themselves.\102\ USCIS may 
    request any evidence relevant to the adjudication of an immigration 
    benefit, including court records, when needed to assess the applicant's 
    eligibility for the benefit. USCIS often requires court records to 
    assess an applicant's eligibility for a provisional waiver, as well as 
    to determine whether the applicant merits the waiver as a matter of 
    discretion.
    ---------------------------------------------------------------------------
    
        \102\ For example, California state law specifies that 
    individuals can obtain a copy of their own case files and can 
    subsequently disclose such records freely. See Cal. Welf. & Inst. 
    Code Sec.  827(a)(1)(C) and (5).
    ---------------------------------------------------------------------------
    
    e. Form I-601A, Statement From Applicant
        A commenter suggested that USCIS add questions related to hardship 
    that would allow officers to quickly determine whether a threshold 
    level of extreme hardship has been demonstrated. The commenter cited 
    the Application for Suspension of Deportation or Special Rule 
    Cancellation of Removal, Form I-881, as an example of a form that poses 
    specific questions related to the establishment of extreme hardship.
        DHS has not accepted this suggestion. Although Form I-881 includes 
    questions relating to potential hardship, that form--unlike the 
    provisional waiver application (and the statutory inadmissibility 
    waiver grounds upon which it is based)--is used solely to adjudicate 
    relief under NACARA, and thus utilizes questions generally tracking 
    pertinent regulations outlining hardship factors that may be considered 
    under the NACARA program. See 8 CFR 240.64; 8 CFR 1240.58(b). Because 
    similar regulations do not exist in the provisional waiver context, DHS 
    does not believe that adding specific hardship questions to Form I-601A 
    is appropriate. Among other things, such questions may be understood as 
    setting the contours of the extreme hardship determination in the 
    provisional waiver context, which may unintentionally lead applicants 
    to restrict the types of evidence they submit to establish extreme 
    hardship. Moreover, DHS notes that USCIS does provide, in the relevant 
    form instructions, a list of non-exclusive factors that may be 
    considered in making extreme hardship determinations. See Instructions 
    to Form I-601 and Form I-601A.
    f. Form I-601A Instructions, Criminal History Issues
        One commenter suggested clarifications to the Form I-601A 
    instructions regarding documentation of criminal history in two 
    scenarios: those involving brief detentions and those where criminal 
    records do not exist. First, the commenter suggested a change to the 
    instructions to clarify that the relevant documentation requirements do 
    not apply to an applicant unless he or she has been arrested for, or 
    charged with, a criminal offense (i.e., not individuals who were simply 
    stopped or questioned by law enforcement authorities). Second, the 
    commenter suggested a change to the instructions to clarify that an 
    applicant may submit documents from a relevant court to show the lack 
    of criminal charge or prosecution. To accomplish these two suggestions, 
    the commenter recommended amending the instructions by inserting the 
    following underlined text (and deleting the following text that has 
    been struck through) in the instruction for Item Number 31: ``For Item 
    Number 31, if you were arrested but not charged with any crime or 
    offense, provide a statement or other documentation from the arresting 
    authority, or prosecutor's office, or court, if available, to show that 
    you were not charged with any crime or offense.''
        In response to these suggestions, DHS has inserted the words 
    ``arrested but'' and ``or court'' into the relevant instruction as 
    suggested by the commenter. DHS agrees that the insertion of this 
    language would provide additional clarity to applicants. DHS, however, 
    did not add the words ``if available'' as suggested by the commenter, 
    because USCIS believes it is self-evident that documents cannot be 
    provided if they are not available. In this final rule, USCIS has 
    provided applicants with various ways to prove the absence of a 
    criminal conviction without necessarily specifying or limiting the 
    types of documents USCIS will consider.
    g. Form I-601A Instructions, Purpose of Form I-601A
        A commenter suggested adding language to the Form I-601A 
    instructions clarifying the categories of individuals who may be 
    eligible to apply for provisional waivers under this rule. 
    Specifically, the commenter suggested adding the following underlined 
    text to ensure that certain individuals are eligible to apply for 
    provisional waivers: ``Certain immigrant visa applicants who are 
    relatives of U.S. citizen or Lawful Permanent Residents (LPRs); family-
    sponsored immigrants; employment-based immigrants; special immigrants; 
    and participants in the Diversity Visa Program may use this application 
    to request a provisional waiver of the unlawful presence grounds.''
        DHS has not adopted this suggestion. DHS believes the pre-existing 
    language accurately captures those who have the requisite family 
    relationships to apply for provisional waivers, including those who 
    have become newly eligible to apply under this rulemaking. DHS believes 
    the additional language suggested by the commenter could be read to 
    imply that an applicant is not required to have the requisite 
    relationship with a U.S. citizen or LPR in order to apply for a 
    provisional waiver. DHS has thus not amended this portion of the Form 
    I-601A instructions.
    h. Form I-601A Instructions, Who May File
        One commenter suggested that DHS add language to the Form I-601A 
    instructions stating that individuals who are not immediate relatives 
    and who filed more than one Form I-601A application are still eligible 
    to file a subsequent Form I-601A application even if DOS acted, before 
    the effective date of this rule, to schedule their first immigrant visa 
    interview.
        DHS has not adopted this suggestion. As noted previously, this 
    final rule eliminates the regulatory provisions that make individuals 
    ineligible for provisional waivers depending on the date on which DOS 
    initially acted to schedule their immigrant visa interviews. Therefore, 
    the commenter's suggested amendment is now unnecessary.
    i. Form I-601A Instructions, Can I file other forms with Form I-601A?
        One commenter suggested adding text to the Form I-601A instructions 
    indicating that an applicant may request electronic notification of 
    USCIS acceptance of the filing of Form I-601A by filing Form G-1145, E-
    Notification of Application/Petition Acceptance, along with Form I-
    601A.
        DHS adopted this suggestion.
    
    [[Page 50274]]
    
    j. Form I-601A Instructions, General Instructions
        One commenter suggested changes to the Form I-601A instructions to 
    make it easier for individuals with a physical or developmental 
    disability or mental impairment to request waivers. Specifically, the 
    commenter recommended replacing the portion of the Form I-601A 
    instructions concerning the ability of a legal guardian to sign for a 
    mentally incompetent individual with the following: ``A designated 
    representative may sign if the requestor is unable to sign due to a 
    physical or developmental disability or mental impairment.''
        DHS has not adopted this suggestion, as the Department believes 
    that current regulations are sufficient to address the commenter's 
    concerns. First, current regulations provide that a legal guardian may 
    sign for an individual who is mentally incompetent. See 8 CFR 
    103.2(a)(2). Second, even if no legal guardianship has been 
    established, applicants with disabilities have various options for 
    affecting signatures. Under USCIS policy, a valid signature does not 
    need to be legible or in English, and it may be abbreviated provided it 
    is consistent with the manner in which the individual normally signs 
    his or her name. An individual who is unable to write in any language 
    may place an ``X'' or similar mark in lieu of a signature. DHS believes 
    existing regulations already address the commenters concern and did not 
    adopt the suggestion.
    k. Form I-601A Instructions, General Instructions
        One commenter requested that DHS include an example of a 
    translation certification in the Form I-601A instructions.
        DHS did not adopt this suggestion. Regulations require that any 
    document containing foreign language submitted to USCIS must be 
    accompanied by (1) a full English language translation that the 
    translator has certified as complete and accurate, and (2) the 
    translator's certification that he or she is competent to translate 
    from the foreign language into English. See 8 CFR 103.2(b)(3). DHS 
    believes the regulation is sufficiently clear, and the Department is 
    worried that providing an example translation certification will be 
    understood by applicants as a required form, thus effectively limiting 
    options for obtaining translation services.
    l. Form I-601A Instructions, Specific Instructions
        One commenter suggested providing applicants with additional 
    instructions to help clarify when individuals are deemed to be admitted 
    or to have entered without inspection. Specifically, the commenter 
    suggested that DHS replace the term ``EWI'' (entry without inspection) 
    with ``no lawful status'' in the Form I-601A instructions and to add a 
    note to the instructions indicating that applicants without lawful 
    status who entered at a port of entry may have nevertheless entered 
    pursuant to inspection and admission. The commenter, citing to the 
    decision of the Board of Immigration Appeals at Matter of Quilantan, 25 
    I. & N. Dec. 285 (BIA 2010), stated that an individual without lawful 
    status who is nevertheless permitted to enter the United States at a 
    port of entry may be ``admitted,'' even if the inspection at the port 
    did not comply with substantive legal requirements and there is no 
    record of the individual having been admitted in any particular status.
        DHS has not adopted these suggestions. DHS believes that the form 
    instructions are sufficiently clear for applicants to appropriately 
    answer all relevant questions. DHS does not believe it is necessary to 
    add reminders or warnings on the issue raised by the commenter, as DHS 
    does not believe that an applicant will erroneously state that he or 
    she is present without admission or parole.
    m. Form I-601A Instructions, Immigration or Criminal History
        One commenter requested that the Form I-601A instructions be 
    amended to provide information about grants of voluntary departure and 
    how such grants affect the provisional waiver process. Specifically, 
    the commenter requested that the instructions include a provision 
    specifying that an immigration judge may grant voluntary departure, or 
    dismiss or terminate removal proceedings, prior to the applicant 
    leaving the United States for immigrant visa processing.
        DHS has not adopted this suggestion, as an individual granted 
    voluntary departure is not eligible for a provisional waiver. USCIS, 
    however, modified Form I-601A by including a question asking whether 
    the applicant has been granted voluntary departure. USCIS also made 
    corresponding amendments in the form instructions.
    n. Form I-601A Instructions, Penalties
        One commenter asserted that USCIS established an overly broad 
    standard for denying Form I-601A applications, as well as other 
    immigration benefits, due to the submission of false documents with 
    such applications. To address this concern, the commenter suggested 
    that the Form I-601A instructions be amended to indicate that 
    applications will be denied only if the applicants submit 
    ``materially'' false documents.
        DHS has not adopted the commenter's suggestion, as there are 
    existing statutory requirements regarding the use of false documents. 
    DHS, however, has modified the relevant language in the form 
    instructions to more closely match the language of 8 U.S.C. 1324c and 
    18 U.S.C. 1001(a), which relate to civil and criminal penalties for the 
    use of false documents to defraud the U.S. Government or obtain an 
    immigration benefit. The new language reads, ``If you knowingly and 
    willfully falsify or conceal a material fact or submit a false, 
    altered, forged, or counterfeited writing or document with your Form I-
    601A, we will deny your Form I-601A and may deny any other immigration 
    benefit.''
    2. Changes to the Information Collection (OMB Control No. 1615-0123)
        DHS has revised the Form I-601A as indicated in the preceding 
    responses. The revised form and instructions are available for review 
    at http://www.reginfo.gov/public/do/PRAMain under OMB control number 
    1615-0123, or at https://www.regulations.gov/#!home in docket USCIS-
    2012-0003.
        As a result of the final rule's elimination or modification of 
    certain provisional waiver eligibility criteria, and a result of newer 
    and better data and historical source data revisions,\103\ DHS has 
    updated the supporting statement for the Form I-601A. The update 
    reflects changes in the respondent estimates that USCIS projected in 
    the 2015 Proposed Rule. In the 2015 Proposed Rule, DHS estimated that 
    approximately 10,258 new respondents would file applications for 
    provisional waivers because of the changes proposed by the rule. DHS 
    also estimated that 42,707 individuals currently eligible for 
    provisional waivers would file Form I-601 applications in the future. 
    DHS has revised these estimates, projecting that approximately 9,191 
    new respondents will file applications for provisional waivers because 
    of the changes in this final rule and 43,728 individuals currently 
    eligible for provisional waivers will file Form I-601 applications in 
    the future. With these changes in the number of Form I-601A 
    applications, the estimate for the total number of respondents has been
    
    [[Page 50275]]
    
    updated from 52,965 to 52,918, which represents a decrease of 47 
    respondents. The current burden hour inventory approved for this form 
    is 141,417 hours, and the requested new total hour burden is 141,292 
    hours. This revision reflects an increase (47,841 annual burden hours) 
    in the annual burden hours previously reported for this information 
    collection.
    ---------------------------------------------------------------------------
    
        \103\ DOS determined that its rules used to collect the 
    inadmissibility data included in the 2015 Proposed Rule resulted in 
    errors. DOS has since revised its rules to correct the errors.
    ---------------------------------------------------------------------------
    
        Overview of this information collection (OMB Control Number 1615-
    0123):
        (1) Type of Information Collection: Revision of a Currently 
    Approved Collection.
        (2) Title of the Form/Collection: Application for Provisional 
    Unlawful Presence Waiver.
        (3) Agency form number, if any, and the applicable component of the 
    DHS sponsoring, the collection: I-601A; USCIS.
        (4) Affected public who will be asked or required to respond, as 
    well as a brief abstract: Primary: Individuals or households: 
    Individuals who are: (a) Immigrant visa applicants, including (1) 
    immediate relatives, (2) individuals seeking to immigrate under a 
    family-sponsored, employment-based, or special immigrant visa category, 
    or (3) Diversity Visa selectees and derivatives; and (b) applying from 
    within the United States for a provisional waiver under INA section 
    212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v), before obtaining an 
    immigrant visa abroad.
        (5) An estimate of the total number of respondents and the amount 
    of time estimated for an average respondent to respond: The estimated 
    total number of respondents for the information collection I-601A is 
    52,918 and the estimated hour burden per response is 1.5 hours; and 
    52,918 respondents providing biometrics at 1.17 hours.
        (6) An estimate of the total public burden (in hours) associated 
    with the collection: The total estimated annual hour burden associated 
    with this collection is 141,292 hours.
        (7) An estimate of the total public burden (in cost) associated 
    with the collection: The estimated total annual cost burden associated 
    with this collection of information is $1,496,282.
    
    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 not, for purposes of the Regulatory 
    Flexibility Act, within the definition of small entities established by 
    5 U.S.C. 601(6). DHS received no public comments challenging this 
    certification.
    
    List of Subjects
    
        Accordingly, DHS adopts the regulatory amendments proposed on July 
    22, 2015. In addition, DHS modifies certain provisions based on 
    comments received in response to the proposed rule so that chapter I of 
    title 8 of the Code of Federal Regulations reads as follows:
    
    8 CFR Part 103
    
        Administrative practice and procedure, 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.
    
    PART 103--IMMIGRATION BENEFITS; BIOMETRIC REQUIREMENTS; 
    AVAILABILITY OF RECORDS
    
    0
    1. The authority citation for part 103 continues to read as follows:
    
        Authority:  5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304, 
    1356; 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; Pub. L. 112-54.
    
    
    Sec.  103.2  [Amended]
    
    0
    2. Section 103.2 is amended by:
    0
    a. In paragraphs (a)(2) and (3), (b)(6) and (7), and (b)(9) and (10) by 
    removing ``an benefit request'' and adding in its place ``a benefit 
    request'', wherever it appears; and
    0
    b. In paragraph (b)(12) by removing ``An benefit request'' and adding 
    in its place ``A benefit request'', wherever it appears.
    
    PART 212--DOCUMENTARY REQUIREMENTS; NONIMMIGRANTS; WAIVERS; 
    ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
    
    0
    3. The authority citation for part 212 continues to read as follows:
    
        Authority:  8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 
    1184, 1187, 1223, 1225, 1226, 1227, 1255, 1359; 8 U.S.C. 1185 note 
    (section 7209 of Pub. L. 108-458); 8 CFR part 2. Section 212.1(q) 
    also issued under section 702, Pub. L. 110-229, 122 Stat. 754, 854.
    0
    4. Section 212.7 is amended by:
    0
    a. Removing the paragraph (a) subject heading; and
    0
    b. Revising paragraph (e).
        The revision reads as follows:
    
    
    212.7  Waivers of certain grounds of inadmissibility.
    
    * * * * *
        (e) Provisional unlawful presence waivers of inadmissibility. The 
    provisions of this paragraph (e) apply to certain aliens who are 
    pursuing consular immigrant visa processing.
        (1) Jurisdiction. USCIS has exclusive jurisdiction to grant a 
    provisional unlawful presence waiver under this paragraph (e). An alien 
    applying for a provisional unlawful presence waiver must file with 
    USCIS the form designated by USCIS, with the fees prescribed in 8 CFR 
    103.7(b), and in accordance with the form instructions.
        (2) Provisional unlawful presence waiver; in general. (i) USCIS may 
    adjudicate applications for a provisional unlawful presence waiver of 
    inadmissibility based on section 212(a)(9)(B)(v) of the Act filed by 
    eligible aliens described in paragraph (e)(3) of this section. USCIS 
    will only approve such provisional unlawful presence waiver 
    applications in accordance with the conditions outlined in paragraph 
    (e) of this section. Consistent with section 212(a)(9)(B)(v) of the 
    Act, the decision whether to approve a provisional unlawful presence 
    waiver application is discretionary. A pending or approved provisional 
    unlawful presence waiver does not constitute a grant of a lawful 
    immigration status or a period of stay authorized by the Secretary.
        (ii) A pending or an approved provisional unlawful presence waiver 
    does not support the filing of any application for interim immigration 
    benefits, such as employment authorization or an advance parole 
    document. Any application for an advance parole document or employment 
    authorization that is submitted in connection with a provisional 
    unlawful presence waiver application will be rejected.
    
    [[Page 50276]]
    
        (3) Eligible aliens. Except as provided in paragraph (e)(4) of this 
    section, an alien may be eligible to apply for and receive a 
    provisional unlawful presence waiver for the grounds of inadmissibility 
    under section 212(a)(9)(B)(i)(I) or (II) of the Act if he or she meets 
    the requirements in this paragraph. An alien may be eligible to apply 
    for and receive a waiver if he or she:
        (i) Is present in the United States at the time of filing the 
    application for a provisional unlawful presence waiver;
        (ii) Provides biometrics to USCIS at a location in the United 
    States designated by USCIS;
        (iii) Upon departure, would be inadmissible only under section 
    212(a)(9)(B)(i) of the Act at the time of the immigrant visa interview;
        (iv) Has a case pending with the Department of State, based on:
        (A) An approved immigrant visa petition, for which the Department 
    of State immigrant visa processing fee has been paid; or
        (B) Selection by the Department of State to participate in the 
    Diversity Visa Program under section 203(c) of the Act for the fiscal 
    year for which the alien registered;
        (v) Will depart from the United States to obtain the immigrant 
    visa; and
        (vi) Meets the requirements for a waiver provided in section 
    212(a)(9)(B)(v) of the Act.
        (4) Ineligible aliens. Notwithstanding paragraph (e)(3) of this 
    section, an alien is ineligible for a provisional unlawful presence 
    waiver under paragraph (e) of this section if:
        (i) The alien is under the age of 17;
        (ii) The alien does not have a case pending with the Department of 
    State, based on:
        (A) An approved immigrant visa petition, for which the Department 
    of State immigrant visa processing fee has been paid; or
        (B) Selection by the Department of State to participate in the 
    Diversity Visa program under section 203(c) of the Act for the fiscal 
    year for which the alien registered;
        (iii) The alien is in removal proceedings, in which no final order 
    has been entered, unless the removal proceedings are administratively 
    closed and have not been recalendared at the time of filing the 
    application for a provisional unlawful presence waiver;
        (iv) The alien is subject to an administratively final order of 
    removal, deportation, or exclusion under any provision of law 
    (including an in absentia order under section 240(b)(5) of the Act), 
    unless the alien has already filed and USCIS has already granted, 
    before the alien applies for a provisional unlawful presence waiver 
    under 8 CFR 212.7(e), an application for consent to reapply for 
    admission under section 212(a)(9)(A)(iii) of the Act and 8 CFR 
    212.2(j);
        (v) CBP or ICE, after service of notice under 8 CFR 241.8, has 
    reinstated a prior order of removal under section 241(a)(5) of the Act, 
    either before the filing of the provisional unlawful presence waiver 
    application or while the provisional unlawful presence waiver 
    application is pending; or
        (vi) The alien has a pending application with USCIS for lawful 
    permanent resident status.
        (5) Filing. (i) An alien must file an application for a provisional 
    unlawful presence waiver of the unlawful presence inadmissibility bars 
    under section 212(a)(9)(B)(i)(I) or (II) of the Act on the form 
    designated by USCIS, in accordance with the form instructions, with the 
    fee prescribed in 8 CFR 103.7(b), and with the evidence required by the 
    form instructions.
        (ii) An application for a provisional unlawful presence waiver will 
    be rejected and the fee and package returned to the alien if the alien:
        (A) Fails to pay the required filing fee or correct filing fee for 
    the provisional unlawful presence waiver application;
        (B) Fails to sign the provisional unlawful presence waiver 
    application;
        (C) Fails to provide his or her family name, domestic home address, 
    and date of birth;
        (D) Is under the age of 17;
        (E) Does not include evidence of:
        (1) An approved immigrant visa petition;
        (2) Selection by the Department of State to participate in the 
    Diversity Visa Program under section 203(c) of the Act for the fiscal 
    year for which the alien registered; or
        (3) Eligibility as a derivative beneficiary of an approved 
    immigrant visa petition or of an alien selected for participation in 
    the Diversity Visa Program as provided in this section and outlined in 
    section 203(d) of the Act.
        (F) Fails to include documentation evidencing:
        (1) That the alien has paid the immigrant visa processing fee to 
    the Department of State for the immigrant visa application upon which 
    the alien's approved immigrant visa petition is based; or
        (2) In the case of a diversity immigrant, that the Department of 
    State selected the alien to participate in the Diversity Visa Program 
    for the fiscal year for which the alien registered.
        (6) Biometrics. (i) All aliens who apply for a provisional unlawful 
    presence waiver under this section will be required to provide 
    biometrics in accordance with 8 CFR 103.16 and 103.17, as specified on 
    the form instructions.
        (ii) Failure to appear for biometric services. If an alien fails to 
    appear for a biometric services appointment or fails to provide 
    biometrics in the United States as directed by USCIS, a provisional 
    unlawful presence waiver application will be considered abandoned and 
    denied under 8 CFR 103.2(b)(13). The alien may not appeal or file a 
    motion to reopen or reconsider an abandonment denial under 8 CFR 103.5.
        (7) Burden and standard of proof. The alien has the burden to 
    establish, by a preponderance of the evidence, eligibility for a 
    provisional unlawful presence waiver as described in this paragraph, 
    and under section 212(a)(9)(B)(v) of the Act, including that the alien 
    merits a favorable exercise of discretion.
        (8) Adjudication. USCIS will adjudicate a provisional unlawful 
    presence waiver application in accordance with this paragraph and 
    section 212(a)(9)(B)(v) of the Act. If USCIS finds that the alien is 
    not eligible for a provisional unlawful presence waiver, or if USCIS 
    determines in its discretion that a waiver is not warranted, USCIS will 
    deny the waiver application. Notwithstanding 8 CFR 103.2(b)(16), USCIS 
    may deny an application for a provisional unlawful presence waiver 
    without prior issuance of a request for evidence or notice of intent to 
    deny.
        (9) Notice of decision. (i) USCIS will notify the alien and the 
    alien's attorney of record or accredited representative of the decision 
    in accordance with 8 CFR 103.2(b)(19). USCIS may notify the Department 
    of State of the denial of an application for a provisional unlawful 
    presence waiver. A denial is without prejudice to the alien's filing 
    another provisional unlawful presence waiver application under this 
    paragraph (e), provided the alien meets all of the requirements in this 
    part, including that the alien's case must be pending with the 
    Department of State. An alien also may elect to file a waiver 
    application under paragraph (a)(1) of this section after departing the 
    United States, appearing for his or her immigrant visa interview at the 
    U.S. Embassy or consulate abroad, and after the Department of State 
    determines the alien's admissibility and eligibility for an immigrant 
    visa.
        (ii) Denial of an application for a provisional unlawful presence 
    waiver is not a final agency action for purposes of
    
    [[Page 50277]]
    
    section 10(c) of the Administrative Procedure Act, 5 U.S.C. 704.
        (10) Withdrawal of waiver applications. An alien may withdraw his 
    or her application for a provisional unlawful presence waiver at any 
    time before USCIS makes a final decision. Once the case is withdrawn, 
    USCIS will close the case and notify the alien and his or her attorney 
    or accredited representative. The alien may file a new application for 
    a provisional unlawful presence waiver, in accordance with the form 
    instructions and required fees, provided that the alien meets all of 
    the requirements included in this paragraph (e).
        (11) Appeals and motions to reopen. There is no administrative 
    appeal from a denial of a request for a provisional unlawful presence 
    waiver under this section. The alien may not file, pursuant to 8 CFR 
    103.5, a motion to reopen or reconsider a denial of a provisional 
    unlawful presence waiver application under this section.
        (12) Approval and conditions. A provisional unlawful presence 
    waiver granted under this section:
        (i) Does not take effect unless, and until, the alien who applied 
    for and obtained the provisional unlawful presence waiver:
        (A) Departs from the United States;
        (B) Appears for an immigrant visa interview at a U.S. Embassy or 
    consulate; and
        (C) Is determined to be otherwise eligible for an immigrant visa by 
    the Department of State in light of the approved provisional unlawful 
    presence waiver.
        (ii) Waives, upon satisfaction of the conditions described in 
    paragraph (e)(12)(i), 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 immigrant based 
    on the approved immigrant visa petition upon which a provisional 
    unlawful presence waiver application is based or selection by the 
    Department of State to participate in the Diversity Visa Program under 
    section 203(c) of the Act for the fiscal year for which the alien 
    registered, with such selection being the basis for the alien's 
    provisional unlawful presence waiver application;
        (iii) Does not waive any ground of inadmissibility other than, upon 
    satisfaction of the conditions described in paragraph (e)(12)(i), the 
    grounds of inadmissibility under section 212(a)(9)(B)(i)(I) or (II) of 
    the Act.
        (13) Validity. Until the provisional unlawful presence waiver takes 
    full effect as provided in paragraph (e)(12) of this section, USCIS may 
    reopen and reconsider its decision at any time. Once a provisional 
    unlawful presence waiver takes full effect as defined in paragraph 
    (e)(12) of this section, the period of unlawful presence for which the 
    provisional unlawful presence waiver is granted is waived indefinitely, 
    in accordance with and subject to paragraph (a)(4) of this section.
        (14) Automatic revocation. The approval of a provisional unlawful 
    presence waiver is revoked automatically if:
        (i) The Department of State denies the immigrant visa application 
    after completion of the immigrant visa interview based on a finding 
    that the alien is ineligible to receive an immigrant visa for any 
    reason other than inadmissibility under section 212(a)(9)(B)(i)(I) or 
    (II) of the Act. This automatic revocation does not prevent the alien 
    from applying for a waiver of inadmissibility for unlawful presence 
    under section 212(a)(9)(B)(v) of the Act and 8 CFR 212.7(a) or for any 
    other relief from inadmissibility on any other ground for which a 
    waiver is available and for which the alien may be eligible;
        (ii) The immigrant visa petition approval associated with the 
    provisional unlawful presence waiver is at any time revoked, withdrawn, 
    or rendered invalid but not otherwise reinstated for humanitarian 
    reasons or converted to a widow or widower petition;
        (iii) The immigrant visa registration is terminated in accordance 
    with section 203(g) of the Act, and has not been reinstated in 
    accordance with section 203(g) of the Act; or
        (iv) The alien enters or attempts to reenter the United States 
    without inspection and admission or parole at any time after the alien 
    files the provisional unlawful presence waiver application and before 
    the approval of the provisional unlawful presence waiver takes effect 
    in accordance with paragraph (e)(12) of this section.
    
    Jeh Charles Johnson,
    Secretary.
    [FR Doc. 2016-17934 Filed 7-28-16; 8:45 am]
     BILLING CODE 9111-97-P
    
    
    
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