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The Department of Homeland Security (DHS) is amending its regulations to expand eligibility for the provisional unlawful presence waiver of certain grounds of inadmissibility based on the accrual of unlawful presence to all aliens who are statutorily eligible for a waiver of such grounds, are seeking such a waiver in connection with an immigrant visa application, and meet other conditions. In relation to the statutory requirement that a waiver applicant must demonstrate that the denial of the waiver would result in extreme hardship to a qualifying relative, DHS is eliminating the restrictions currently contained in the provisional unlawful presence regulation that limits the qualifying relative to U.S. citizen spouses and parents. This rule permits an applicant for a provisional waiver to establish the eligibility requirement of showing extreme hardship to any qualifying relative named in the statutory waiver provision namely a U.S. citizen or lawful permanent resident spouses and parents.

Statement of Need:

Currently, DHS allows certain immediate relatives who are in the United States to request a provisional unlawful presence waiver before departing for consular processing of their immigrant visas. Currently, this waiver process is only available to those immediate relatives whose sole ground of inadmissibility would be unlawful presence under section 212(a)(9)(B)(i) of the Immigration and Nationality Act (INA)and who can demonstrate that the denial of the waiver would result in extreme hardship to their U.S. citizen spouse or parent.

All other aliens seeking an immigrant visa through consular process who require a waiver of inadmissibility to overcome the bars in INA section 212(a)(9)(B)(i) must file the waiver at the end of the consular processing and after the consular immigrant visa interview. Obtaining the waiver through this process can be lengthy. These aliens typically have to wait abroad for at least several months for a decision on their waiver applications and until a visa can be issued. During this period, applicants must endure separation from the U.S. citizen and lawful permanent resident family members in the United States, which, in turn, often results in emotional and financial hardships to some U.S. citizens, lawful permanent residents, and their families. Inefficiencies in this waiver process also create costs for the Federal Government.

As proposed, USCIS may grant a provisional unlawful presence waiver to aliens if they are statutorily eligible for an immigrant visa and for a waiver of inadmissibility based on unlawful presence. As proposed, this rule also would expand who may be considered a qualifying relative for purposes of the extreme hardship determination to include lawful permanent resident spouses and parents. The changes are made in the interest of family unity and customer service. This rule also removes from the affected regulations all unnecessary procedural instructions regarding office names and locations, position titles and responsibilities, and form numbers. These instructions are often unnecessary, and unrestricted USCIS' ability to better utilize its resources and serve its customers.

Summary of the Legal Basis:

5 U.S.C. 301; 8 U.S.C. 1101, 1103, 1304, 1356; 31 U.S.C. 9701; Public Law 107296, 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; Public Law 11254. 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. 108458); 8 CFR part 2. Section 212.1(q) also issued under section 702, Public Law 110229, 122 Stat. 754, 854.

Alternatives:

The alternative to this rule would be to continue under the current process without change.

Anticipated Costs and Benefits:

As a result of expanding the population of aliens who would benefit from a streamlined immigrant visa process, DHS believes that both the affected population and the Federal Government will benefit. In addition to reducing the emotional hardship that U.S. citizen and lawful permanent resident families experience as a result of separation from their alien relatives, DHS anticipates these families would experience fewer financial burdens associated with traveling abroad. Finally, this rule would increase USCIS and DOS efficiencies by streamlining the waiver process for unlawful presence for the expanded group.

Risks: