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The Federal Register is out for Monday, December 31, 2012 and the Provisional Waiver rule isn't in there. Sources indicate that the rule is ready for publication but for unknown administrative reasons at the Office of Management and Budget (OMB) the rule did not get to the Federal Register publication office in time in the afternoon of Friday, December 28. USCIS had promised throughout 2012 that the rule would be "out" by the end of 2012, implying that it would be published in the Federal Register on or before Monday, December 31, 2012. Speculation was rampant in November and December regarding whether USCIS would meet it's deadline. When the rule was approved by OIRA (Office of Informaiton and Regulatory Affairs) on Friday, December 21, it appeared that USCIS would meet it's deadline after all. Unfortunately, this has not occurred. While it is emotionally disappointing to many that the deadline has been missed, it actually means absolutely nothing. There are no significant consequences to anyone. The rule is still expected to be published on Wednesday, possibly Thursday or even Friday.


There is no reason to believe the rule will not actually be put into place. USCIS officials and officials at the OMB have put a tremendous amount of time, effort, and resources into the creation of this rule throughout 2012 and even in 2011. There is clear evidence that USCIS has spent months training staff to handle Provisional Waiver applications when they are submitted. The rule has passed all necessary, somewhat numerous, steps required for implementation. It has received final approval by the White House. It is ready for publication. While the rule is not actually official until published, the chances that it will not be published at this juncture are extremely slim.


One of the ways in which a new procedural rule differs from a new law is that a new rule does not require a vote in Congress the way a new law does. When a new law is created, there is a great deal of uncertainty that the law will pass until the final votes are taken. The creation of a new rule is completely different. The biggest decision on the part of the government is whether to announce the proposed rule in the first place. Whereas the crux of the uncertainty for a new law comes at the end of the process, the crux of the uncertaity for a new rule comes at the beginning of the process. Most of the uncertainty for the new Provisional Waiver rule was resolved when the proposal was announced in January of this year.


It's going to happen. It's just a few days late. That's all.