Round 2 - What Happened With The I-601A Waiver?

Alan Lee, Esq.

For those who are interested in the I-601A subject, I had said in the last article that the person we spoke with at USCIS's Office of Policy and Strategy said there was supposed to be a possible announcement on the I-601A rule at the Intergovernmental Affairs Quarterly Stakeholder Teleconference on October 26, 2012, and it would appear that, barring unexpected news, the next chance we would have to hear anything substantial on the rule would be on October 26th. (See article, What happened with the I-601A waiver?). On October 17th, the Public Engagement Division of USCIS sent regrets that the engagement had been canceled and that it anticipated another intergovernmental affairs engagement in November. So it appears that we are still left scrambling for information.

A general answer was given in the USCIS-American Immigration Lawyers Association (AILA) meeting on October 9, 2012, where USCIS stated that it had received and reviewed all the comments received in connection with the proposed rule and that USCIS and DHS were working on a final rule for publication, and such was expected to be published in the Federal Register by the end of the calendar year.

Previously the Department of Homeland Security had released its Retrospective Review of Existing Regulations - Progress Report on May 14, 2012, in which it said that the comment period would close on June 1, 2012, and USCIS had begun reviewing the public comments. And on July 18, 2012, the Office of Information and Regulatory Affairs of the Office of Management and Budget (OMB) had given a notice of action that showed the proposed rule generating 38,277 responses with an estimated time burden of 57,416 hours. That office's conclusion was that "The agency [DHS] shall examine public comment in response to the notice of proposed rulemaking and will include in the supporting statement of the next ICR [information collection request], to be submitted to OMB at the final rule stage, a description of how the agency has responded to any public comments on the ICR. In addition, the agency will note for the public in both the final rule and the supporting statement of the next ICR that it had incorrectly identified that this ICR was a revision in its NPRM [notice of proposed rulemaking], when in fact this ICR is a new collection."

From the available information, it appears that the next step for DHS/ USCIS involves sending the final rule to OMB for review. When will it do so? Although USCIS informed AILA that it had received and reviewed the comments, how long will it take to decide whether to incorporate any of the recommendations contained in the comments and to write up its final version of the rule? Then how long will it take OMB to process the rule and send it back to the agency? As this is an important initiative of the Administration, it should be given expedited treatment by DHS/USCIS and not slow-walked through the process.

This article © 2012 Alan Lee, Esq.

About The Author

Alan Lee, Esq. is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Director, registered in the Bar Register of Preeminent Lawyers, and on the New York Super Lawyers list. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

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