[Federal Register Volume 59, Number 6 (Monday, January 10, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-298]


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[Federal Register: January 10, 1994]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 103

[INS No. 1384-92; AG Order No. 1821-93]
RIN 1115-AD18

 

Adjustment to the Examinations Fee Schedule

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to adjust the current Examinations Fee 
schedule for the Immigration and Naturalization Service (INS) in order 
to generate sufficient revenue to recover the costs of providing 
immigration and naturalization services, and to change procedures and 
charges for the Petition for a Nonimmigrant Worker, Form I-129, in 
response to INS and user experiences. The fee adjustment is needed to 
comply with specific Federal immigration laws and the Federal user fee 
statute and regulations, which require the recipients of special 
benefits from Government services that are not directed to the public 
at large to bear the costs to the Government of providing those 
services. The fees proposed in this rule result from an analysis of 
adjudication and naturalization services and associated costs for 
fiscal years 1993 and 1994, and are calculated to recover the costs of 
providing these special services and benefits. This proposed rule 
ensures that funds will be available to continue to improve the quality 
of service to users. Its financial impact on users of the services is 
small. In most cases the proposed fee increase is five dollars. In the 
aggregate this proposed fee increase is slightly less than the 
projected change in the consumer price index since the last general fee 
increase in April 1991.

DATES: Written comments must be submitted on or before February 9, 
1994.

ADDRESSES: Comments must be submitted in writing for consideration. 
Please submit written comments, in triplicate, to the Director, Policy 
Directives and Instructions Branch; Immigration and Naturalization 
Service; 425 I Street, NW.; room 5307; Washington, DC 20536-0002. To 
ensure proper handling, please reference INS No. 1384-92 on your 
correspondence.

FOR FURTHER INFORMATION CONTACT:
Barbara J. Atherton, Chief, Fee Analysis and Operations Branch, Office 
of Finance; Immigration and Naturalization Service; 425 I Street, NW.; 
room 6240; Washington, DC 20536-0002; telephone 202-616-2754.

SUPPLEMENTARY INFORMATION:

I. Introduction

    The Immigration and Naturalization Service (INS) of the Department 
of Justice (DOJ) is required by law to charge fees to the users of its 
services. Such fees presently comprise about 36 percent of the INS 
budget. There are four fee accounts, and the fees which are collected 
in each account are used to fund specific services. The four fee 
accounts are the Immigration Examinations Fee Account, the Immigration 
User Fee Account, the Land Border Inspection Fee Account, and the 
Legalization Fee Account. Because the fees in each of these accounts 
are designed to recover the costs which are incurred to provide 
specific services, they must be reviewed regularly and adjusted as 
costs change or more precise cost determination processes become 
available. This rule proposes to modify the examinations fee schedule.
    The Immigration Examinations Fee Account (Examinations Fee Account) 
provides funds for immigration adjudication and naturalization 
services. It is funded by a total of 32 separate fees for processing 
the various applications used by INS. Examples include applications for 
permanent resident status, petitions for relatives, employment 
authorization applications, reentry permits, and extensions of 
temporary stay. The separate fees currently range from $30 to $140.
    To cover the costs of providing adjudication and naturalization 
services, it has been determined that a fee increase of 7.5 percent is 
needed. This increase reflects inflation since the last general fee 
increase in April 1991, the assignment of certain additional costs to 
the Examinations Fee Account for services that support adjudications 
and naturalization functions, and the costs of investments to improve 
services to users. This proposed rule would adjust the current fee 
schedule by 7.5 percent.

A. Refining the Fee Development Process

    INS has initiated a process of continuous improvement in the 
management of the finances of the fee accounts and the development of 
fee schedules. Areas that are being addressed over a projected multi-
year time horizon include: Identifying the INS resources consumed in 
providing services to our customers which by law must be recovered 
through fee revenues; refining definitions of direct and indirect 
costs; and refining cost measurement systems, in concert with wider 
Department of Justice initiatives to improve financial management 
information systems.
    Of necessity, to ensure the availability of necessary funds for 
maintaining operations, the first phase of this effort has been 
identification of INS resource use that must be recovered through fees. 
Prior to 1992, INS had not analyzed rigorously the full extent of its 
costs related to fee-supported services. In 1992, INS undertook a 
comprehensive review of the work that should properly be charged to fee 
accounts in order to meet statutory requirements. Extensive information 
gathering and analysis were performed as part of this effort. The 
aggregate cost of the work in support of the Examinations Fee Account 
was computed based on the budget for fiscal year 1993 and the estimated 
budget for fiscal year 1994.
    This information was used to compute the percentage revenue 
increase required to cover the costs, and that percentage, with limited 
exceptions, was applied to the existing fee schedule that has been in 
place since 1991 to arrive at the proposed fees, through the steps 
explained in this proposed rule.
    Instead of using the existing fee schedule as a base for the 
percentage increases, INS also considered whether it would have been 
feasible to base the proposed fees on 1992 cost measurements. INS 
rejected this approach because of problems with 1992 data caused by the 
transition to a more automated system of productivity measurement.
    Future fee adjustments will reflect efforts to refine direct and 
indirect cost definitions and measurements, and will address 
alternative approaches to the allocation of indirect costs among 
applicants for services. At this time, however, the current fee 
schedule, with the adjustments specifically identified below, reflects 
the best available comprehensive data on service costs, and was 
therefore judged to be the soundest foundation for computing the 
proposed fee schedules for fiscal year 1994.

II. Directives and Guidelines

    INS's examinations fees have been designed in accordance with 
legislation, guidance from the Office of Management and Budget (OMB) 
and the Department, and accepted principles of ratemaking in regulated 
public and commercial enterprises. The overall principle employed is 
one of cost causation, which means the fees are designed to cover the 
costs associated with providing the services funded through the 
Examinations Fee Account.

A. Legislation

    The enabling legislation for the Examinations Fee Account is the 
Departments of Commerce, Justice, and State, the Judiciary, and Related 
Agencies Appropriations Act, 1989 (Pub. L. 100-459), a U.S.C. 1356(n), 
which provides that the receipts collected shall ``* * * remain 
available * * * to reimburse any appropriation the amount paid out of 
such appropriation for expenses in providing immigration adjudication 
and naturalization services and the collection, safeguarding and 
accounting for fees * * *''. The Departments of Commerce, Justice, and 
State, the Judiciary, and Related Agencies Appropriations Act, 1991 
(Pub. L. 101-515), 8 U.S.C. 1356(m), provides further ``* * * that fees 
for providing adjudication and naturalization services may be set at a 
level that will ensure recovery of the full costs of providing all such 
services, including the costs of similar services provided without 
charge to asylum applicants or other immigrants. Such fees may also be 
set at a level that will recover any additional costs associated with 
the administration of the fees collected.'' The general authority to 
assess fees for services is found in the Independent Offices 
Appropriation Act, 1952 (Pub. L. 82-137) (IOAA), 31 U.S.C. 9701, 
frequently referred to as the ``user fee statute,'' which provides for 
Federal agencies to define special services provided to unique segments 
of the population and to charge fees for those services instead of 
supporting them through general tax revenues. The IOAA provides that 
``* * * each service or thing of value provided by an agency * * * to a 
person * * * is to be self-sustaining to the extent possible.'' These 
charges, among other things, are to be based on ``* * * [t]he costs to 
the Government * * *.''
    In 1986, proposed fee increases for adjudication services were 
challenged in the Federal District Court for the District of Columbia 
on the grounds that the Attorney General lacked authority to impose 
fees for the services in question and that, even if the fees were 
legally permissible, the specific fees under challenge were arbitrarily 
excessive. In Ayuda, Inc. v. Attorney General, 661 F. Supp. 33 (D.D.C., 
1987), the District Court rejected these arguments:

    Accordingly, it appearing that the service fees were established 
through appropriate administrative procedures after adequate cost 
analysis and with opportunity for public participation, and that 
they are in all respects consistent with the statutes being 
implemented, summary judgment must be granted to the Attorney 
General and denied to plaintiffs.

661 F.Supp. at 36.
    In upholding the District Court decision, the Court of Appeals held 
that:

    In light of settled law, we are constrained to conclude that the 
INS fees at issue are for a ``service or thing of value'' which 
provides the recipients with a special benefit * * *. Since these 
procedures are triggered only at the instance of the individual who 
seeks, obviously, to benefit from them, this fee regime cannot in 
fairness be characterized as an INS effort to charge for activities 
that are carried on principally to benefit the public generally. The 
benefit is simply too direct and immediate to a specific, 
identifiable beneficiary to consider such services as constituting 
primarily a broad part of INS' overall mission to serve the public.

Ayuda, Inc. v. Attorney General, 848 F.2d 1297, at 1301 (D.C. Cir. 
1988).

B. Office of Management and Budget (OMB) Guidelines

    OMB circular A-25, User Charges, states that as a general policy 
``a user charge * * * will be assessed against each identifiable 
recipient for special benefits derived from Federal activities beyond 
those received by the general public.'' The following discussion is 
provided:

    When a service (or privilege) provides special benefits to an 
identifiable recipient beyond those that accrue to the general 
public, a charge will be imposed (to recover the full cost to the 
Federal Government for providing the special benefit, or the market 
price). For example, a special benefit will be considered to accrue 
and a user charge will be imposed when a Government service:
    (a) Enables the beneficiary to obtain more immediate or 
substantial gains or values (which may or may not be measurable in 
monetary terms) than those that accrue to the general public (e.g., 
receiving a patent, insurance, or guarantee provision, or a license 
to carry on a specific activity or business or various kinds of 
public land use); or
    (b) Provides business stability or contributes to public 
confidence in the business activity of the beneficiary (e.g., 
insuring deposits in commercial banks); or
    (c) Is performed at the request of or for the convenience of the 
recipient, and is beyond the services regularly received by other 
members of the same industry or group or by the general public 
(e.g., receiving a passport, visa, airman's certificate, or a 
Custom's inspection after regular duty hours).

Circular No. A-25, User Charges, Executive Office of the President, 
Office of Management and Budget, July 8, 1993, pp. 2-3.

C. Department of Justice Guidelines

    The Department of Justice issued guidance on User Fee Programs in 
April 1993. The guidance states that as a general policy ``a charge 
shall be imposed to recover the full cost to the Federal Government of 
rendering a service that provides specific benefits to an identifiable 
recipient above and beyond those that accrue to the public at large.'' 
The following discussion is provided:

    Cost is a financial measurement of resources used in 
accomplishing a specified purpose, carrying out an activity, or 
completing a unit of work or a specific project * * *. Direct costs 
are those which are proximate and directly traceable to the unit of 
output for which the fee is charged. Indirect costs are those which 
are more distant, general in nature, and not directly traceable to 
the product or service produced.
    * * * [E]xisting legislation may require the inclusion of costs 
for selected activities not directly related to the unit of 
performance or product for which a fee is charged. Where this 
occurs, both the direct and indirect costs of such activities should 
be included in the cost computation.

User Fee Programs, Department of Justice, Justice Management Division, 
April 1993, pp. 3 and 12. The policies and procedures followed in the 
development of the proposed fee schedules are consistent with this 
guidance.

D. Ratemaking Principles

    The above-stated policies, as set forth by statute and more fully 
developed by OMB and the Department, comport with reasonable standards 
for user charges and are strongly supported by the prescriptions of 
economic experts with widely recognized credentials in the field of 
ratemaking policy. Any other approach would burden taxpayers with costs 
that can be traced directly to the needs of specific individuals, not 
to society at large.
    One of many similar statements on cost of service as a basic 
standard of reasonableness is stated as follows in the authoritative 
text by Bonbright, Danielsen, and Kamerschen:

    No writer whose views on public utility rates command respect 
purports to find a single yardstick by sole reference to which rates 
may be judged reasonable or socially desirable as distinguished from 
rates that are unreasonable or adverse to the public interest. A 
complex of tests of acceptability is required just as would be the 
case with the tests of a good automobile, a good income-tax law, or 
a good poem. Nevertheless, one standard of reasonable rates can 
fairly be said to outrank all others in the importance attached to 
it by experts and public opinion alike--the standard of costs of 
service, often qualified by the stipulation that the relevant cost 
is necessary, true (i.e., private and social) cost or cost 
reasonably or prudently incurred.* * *
    A cost standard of ratemaking has been most generally accepted 
in the regulation of the levels of rates charged by private utility 
companies. But even more significant is the widespread adherence to 
cost, or to some approximation of cost, as a basis of ratemaking 
under public ownership* * * *

Bonbright, Danielsen, and Kamerschen, Principles of Public Utility 
Rates, Public Utilities Reports, Inc., Arlington, Va., 2nd ed. 1988, 
pp. 109-110.
    While the foregoing reference is extracted from a discussion of 
public utility rates, the rate standard cited also is applicable to 
other pricing situations that require cost recovery in a fair and 
reasonable manner.

III. Examinations Fee Account

    This section describes the major programs funded by the 
Examinations Fee Account.

A. Adjudications and Naturalization Program

    The function of this program is to process, adjudicate, and 
ultimately grant or deny applications and petitions for benefits 
provided under the immigration laws of the United States. Adjudications 
activities include processing applications for permanent resident 
status, petitions for relatives, temporary and permanent worker 
petitions, reentry permits, refugee travel documents, extensions of 
temporary stay, employment authorizations, and temporary protected 
status. Naturalization activities include the examination of aliens to 
determine their qualifications for naturalization, administration of 
the oath for citizenship, and issuance of citizenship documents.

B. Refugees and Overseas Program

    The function of this program is to adjudicate refugee and asylum 
applications, conduct investigations for preference and relative visa 
petitions, and conduct other records checks and background 
investigations as are required at overseas INS offices. Officers 
assigned to this program also provide assistance to citizens and lawful 
permanent residents abroad regarding adoptions, immigration, or parole 
of alien spouses and children, and other benefits under the Immigration 
and Nationality Act. They also review requests for the Attorney General 
to grant humanitarian parole into the United States for deserving 
persons.

C. Information and Records Management

    The Information and Records Management program provides a variety 
of services critical to the adjudications and naturalization processes. 
These services include: Creating, updating, storing, retrieving, and 
tracking alien files; responding to inquiries on application status; 
providing information to the public, both in-person and by telephone, 
on immigration-related matters; printing and distributing application 
forms and instructions and providing them to the public.

D. Data and Communications

    The Data and Communications program develops and operates INS 
automated information systems which support the adjudications and 
naturalization program, and operates the identification card production 
facility. Adjudications and naturalization support systems are 
currently being integrated and consolidated into the Computer Linked 
Application Information Management System (CLAIMS), which provides 
adjudication support to service centers, district offices, and ports of 
entry. The system, which is operating in the service centers and is 
being installed in other field offices, reduces application processing 
time and response time to inquiries.

IV. Fee Setting Procedures

    This section provides a description of INS fee-setting procedures, 
including an explanation of the cost bases for setting fees. 
Descriptions of the examinations fees and their cost components and an 
explanation of the procedures employed by INS to calculate the costs 
are included.

A. History of Current Examinations Fees

    Policies pertaining to the assessment of INS user fees and their 
underlying costs have evolved over 25 years, beginning in 1968. The 
Examinations Fee Account itself has a more recent history, starting in 
1989. Prior to 1989, all examinations fee revenues were treated as 
general revenues of the Federal Government. They are now credited to 
the Examinations Fee Account and used to fund related services.
    Procedures to compute examinations fees involve the development and 
summation of three cost components: direct costs, indirect costs, and a 
surcharge to recover the costs of the Refugees and Overseas program. 
These three cost components are described more fully below.
    Salient developments preceding the analyses that led to this 
proposed rule include the issuance in December 1992 of an audit report 
prepared by the Office of the Inspector General (OIG) of the Department 
of Justice. That report, entitled ``Controls Over Established User Fee 
Accounts in the Immigration and Naturalization Service'' (DOJ OIG Audit 
Report No. 93-3), stated that INS's accounting system did not identify 
properly all costs that ought to be recovered from user fee accounts. 
This view is summarized below:

    The review of actual program costs disclosed that all identified 
costs were charged to the proper user fee accounts. However, the INS 
accounting system does not provide usable cost data applicable to 
the user fee program and INS program managers had not identified all 
the direct program costs that should have been reimbursed from the 
user fee accounts. In addition, various INS units providing indirect 
support of personnel and services were not receiving user fee 
reimbursement commensurate with the level of resources expended * * 
* Since valid direct and indirect program costs went unidentified, 
appropriated funds essentially subsidized user fee related program 
costs that should have been reimbursed from user fee revenue.

DOJ OIG Audit Report No. 93-3, at p. i.
    The finding that all program costs were not being recovered from 
user fee accounts triggered several actions by INS that culminated in 
the current proposed rule. At the same time that the OIG was conducting 
its audit, a senior Justice Department official reviewed the fee-
setting process and proposed changes. As a result, the OIG deferred 
additional work in this area. According to the audit report:

    A plan was developed and approved and the same Justice official 
was detailed to compile user fee costs, revise fee schedules as 
necessary to collect revenues sufficient to make each account self-
sustaining, and obtain Congressional approval to reprogram INS 
appropriations accordingly. This project was initiated in March 1992 
and is scheduled to be completed by the end of FY 1992. Since the 
project covered most of the problem areas disclosed by our audit, we 
deferred additional audit work in this area.

DOJ OIG Audit Report No. 93-3, at p. ii.
    The review of the process conducted during 1992 consisted of a 
detailed survey and extensive consultations with all INS program 
offices to review the extent to which they provide services to fee 
account activities, whether they were commensurately reimbursed for 
those services, and whether specific service improvement investments 
would be appropriate if additional fee account revenues were available.
    An initial reallocation (reprogramming) of program costs proposed 
earlier by the Attorney General was approved by Congress, with the 
effect of properly assigning some costs of user fee activities to the 
fee accounts. The budget enacted by Congress for fiscal year 1993 
reflected these reallocations.
    The 1992 review found that the Attorney General's reprogramming had 
substantially corrected the assignment of costs identifiable at that 
point as related to fee account activities, with two exceptions: The 
costs of legal proceedings and the costs of management and 
administration. In the case of these two programs, some costs are being 
charged to fee accounts, but not enough to cover the substantial work 
associated with the fee account activities.
    The review also concluded that although a number of investments 
were recommended by review participants, the recommendations generally 
anticipated actions that were planned in future budget cycles. 
Therefore the investments would generally be addressed as part of INS's 
normal budget review process, rather than as a part of the current fee 
adjustment process.
    This proposed fee increase incorporates the results of this 
extensive review of INS programs, inflationary cost increases since the 
last general fee increase in April 1991, and the projected costs of 
presently budgeted program investments to improve services to INS's 
customers.

B. Costs

1. Cost Components
    OMB Circular A-25, in its discussion of cost determination for 
purposes of setting fees, provides that ``user charges will be 
sufficient to recover the full cost to the Federal Government * * * of 
providing the service * * *.'' It also provides that those costs shall 
include an ``appropriate share of the management and supervisory 
costs.'' Circular No. A-25, User Charges, Executive Office of the 
President, Office of Management and Budget, July 8, 1993, pp. 3-5. 
Direct costs are only the most readily identifiable costs of providing 
user services. Each service also has indirect components which, 
although not as easily identifiable, are nevertheless causally related 
to the costs of providing services. Each examinations fee has three 
components: direct costs, indirect costs, and a surcharge to cover the 
costs of the Refugees and Overseas Program.
    a. Direct costs. Direct costs are those costs directly related to 
the processing of a particular application form for a particular 
benefit. Direct costs include: the pay of the Adjudications officers 
and clerical staff working on each type of application and the costs of 
their associated personnel benefits; the costs of Federal Bureau of 
Investigation (FBI) name and fingerprint checks; where applicable, the 
costs by application of naturalization ceremonies conducted by United 
States Courts; and the costs of INS immigration document and card 
production. The pay costs are calculated by multiplying average 
adjudications processing time by the hourly pay for the average grade 
levels of adjudicators and clerks.
    b. Indirect costs. Indirect costs reflected in the current fee 
structure are defined as the costs of supervisory, management, and 
administrative activities, related staff training, records, data 
processing, and files services, legal services, and space and support 
costs of providing immigration benefits under the Immigration and 
Nationality Act and related statutes.
    Indirect costs also include costs in the management and 
administration portion of the INS budget, such as the costs of the 
personnel administration work needed to recruit and pay the officers 
and clerks who process customers' applications for benefits. The 
activities associated with these costs are no less essential to 
providing INS services to its customers than are the direct costs. 
These indirect costs are distinguished only by the somewhat greater 
complexity of determining the portion of such costs that are 
attributable to work done for fee-paying customers. In addition, 
indirect costs include the cost of auditing the Examinations Fee 
Account by the Department of Justice Inspector General.
    c. Surcharge. The costs to carry out the Refugees and Overseas 
Program are borne by the Examinations Fee Account, at the direction of 
Congress. See section 286(m) of the INA, 8 U.S.C. 1356(m). These costs 
are treated as a surcharge that is added to the examinations fees.
2. Cost Transfers
    A transfer is the shift of costs from one account to another. 
Transfers arise when costs from one account are identified as 
appropriately charged to another account. Transfers have been prompted 
by cost reviews such as that conducted in 1992 to refine the 
identification of costs attributable to user fee activities. Transfers 
found in the 1992 review to be necessary to meet statutory requirements 
are as follows:
    a. Legal proceedings. A review of INS workload statistics 
identified the equivalent of 78 additional positions and work years of 
legal activities that properly should be charged to Examinations Fee 
Account activities. These legal activities include appearances before 
the Immigration Court for hearings related to asylum, adjustment of 
status, registry, waivers of inadmissibility, and rescission; the 
preparation of arguments and briefs for such hearings; appearances 
before Federal and state courts for contested naturalization hearings; 
appearances in U.S. District Courts in mandamus and declaratory 
judgment cases; preparation of arguments, briefs, and litigation 
reports in such cases; and associated legal consultations and 
preparation of legal memoranda. Also included are resources for support 
staff, and Special Assistant U.S. Attorney, Regional Counsel, and 
District Counsel positions chargeable for Examinations work. INS will 
propose to transfer these 78 positions, work years, and associated 
costs from the Salaries and Expenses appropriation to the Examinations 
Fee Account. Copies of this review are available upon request.
    b. Management and administration. Management and Administration 
(M&A) resources have been assigned to the Examinations Fee Account 
using a ``distribution-key'' concept. Distribution-key is a term 
borrowed from the U.S. Postal Service's cost allocation practice. With 
this practice, costs which cannot be directly related to a certain 
class or account are distributed on the basis of costs which can be 
directly assigned. For example, in the case of mail processing, the 
costs associated with supervision of mail clerks (where no direct 
statistical assignment mechanisms are in place) are distributed on the 
same basis as are the costs for the mail clerks themselves (where 
statistical workload measurement systems are in place). See, for 
example, Postal Rate Commission, Docket No. R90-1, United States Postal 
Service Library Reference F-1, Summary Description of USPS Cost 
Development by Segments and Components, fiscal year 1988, pp. 2-2 
through 2-5.
    For this process, a full-time equivalent work year (referred to as 
``work year'' or ``FTE'') was chosen as the distribution-key. Costs 
were allocated based upon the percentage distribution of work years 
between the Examinations Fee Account and all other accounts in INS. See 
Exhibit 1, Derivation of Management and Administration Distribution 
Key.
    At INS, examinations officer work years relate directly to workload 
volume, and the management and administration work that supports the 
examinations officers are dependent upon the number of officer work 
years. Work years are a useful gauge of the resources needed in each 
program because they include the contributions of both full and part-
time staff. Other possible distribution-keys (positions and dollars) 
are believed to be inferior to work years. Positions alone are inferior 
as a distribution-key because they include only full-time permanent 
staff and vacancies. The use of positions would understate proper 
assignment levels to the extent that part-time workers are ignored, but 
would overstate proper assignment levels to the extent that vacancies 
are included. Dollars are also an inferior distribution-key because 
they may be skewed by the inclusion of one-time expenditures or other 
unique costs.
    The distribution-key concept is consistent with the guidance 
provided by the Department. The following discussion is provided:

    For each overhead activity * * *, estimate, on a rational basis, 
approximately what percentage of the amount is indirectly relatable 
or incidental to the functions and costs * * * . The percentage 
assigned ordinarily should be based on the relative amount of time 
or outputs traceable to the particular unit of performance. In the 
case of very general, non-traceable activities (e.g., executive 
direction or congressional and public affairs), where there are 
labor-intensive performance units, general or non-traceable cost 
allocations may be predicated on relative employment (costs or full 
time personnel equivalents) devoted directly to the fee account 
revenue-generating programs vis-a-vis all other programs.

User Fee Programs, Department of Justice, Justice Management Division, 
April 1993, pp. 10-11.
    To distribute costs properly, based on the distribution-key 
concept, INS will propose to transfer 143 positions, 133 work years, 
and associated costs from the Salaries and Expenses appropriation to 
the Examinations Fee Account. However, INS will not propose to use all 
of the resources potentially available as a result of the transfer to 
correct documented deficiencies in M&A program support activities in 
fiscal year 1994. Rather, INS will propose to use part of these 
resources to support additional work years for the Adjudications and 
Naturalization Program to ensure good service during the period of 
transition when more work will be shifted from district offices to 
service centers (the ``Direct Mail III'' program). INS will defer full 
use of the resources for program support activities until fiscal year 
1995 or 1996, as conditions warrant.
3. Investments to Improve Service Quality
    Service quality improvements are made possible by investments in 
staff additions and capital assets. One investment which will be 
financed by the examinations fee increase will be the continued 
expansion of INS service center operations. These expanded automation-
intensive facilities will improve productivity and reduce delays in 
application processing operations. The transfer of work now conducted 
at the district offices to the service centers will improve processing 
at district offices and allow district office staff to devote more time 
to those applications which require personal contact with people 
applying for benefits.

C. Proposed Fee Increase

    The need for increased revenues which underlies the proposed fee 
increase was calculated by adjusting the projected total costs of 
providing adjudications and naturalization services to include the 
transfers and service improvements described above, and comparing the 
costs to the revenue projected under the current fee schedule. Because 
they are reflected in INS budget projections, the calculation 
incorporates the effects of inflation-based cost increases that have 
occurred since the last general fee increase in April 1991 and all 
other mandatory adjustments to the cost base. This calculation yields a 
required percentage revenue increase which, with limited exceptions, 
was then uniformly applied to the existing schedule of fees. The 
exceptions to this procedure, required because of (i) the consolidation 
of forms and (ii) certain technical adjustments, are described below.
    Exhibit 2, Projected Examinations Fee Account, shows the projected 
fiscal year 1994 resource allocations to the Examinations Fee Account. 
The projected transfers from the Salaries and Expenses appropriation, 
which are incorporated in Exhibit 2, are shown in Exhibit 3, Projected 
Transfers From Salaries and Expenses Appropriation to Examinations Fee 
Account.
    Exhibit 4, Proposed Examinations Fee Revenue Adjustment, shows how 
the proposed fee increase was computed. The calculations are based on 
the projected fiscal year 1994 budget, and begin with an estimate of 
the funds that will remain in the Examinations Fee Account at the close 
of fiscal year 1993.
    INS projects that $18.7 million will be carried forward in the 
Examinations Fee Account from fiscal year 1993 to fiscal year 1994 
(Line 1). Revenue of $314.7 million is anticipated in fiscal year 1994 
at the fee levels currently in place (Line 2). The sum of these two 
amounts is $333.4 million, which is the total amount projected to be 
available for the Examinations Fee Account for fiscal year 1994 in the 
absence of a fee increase (Line 3).
    INS projects that the costs of Examinations Fee Account programs 
for fiscal year 1994 will be $331.5 million (Line 4). Because of the 
impossibility of predicting precisely the number of applications and 
associated revenue and workload in any given time period, and in order 
to ensure that there are sufficient resources to adjudicate 
applications, including those currently in process, INS has determined 
the need to retain a balance equivalent to one month of costs, or $27.6 
million (Line 5). The remainder of that amount, if any, would be 
carried forward to the next fiscal year to continue processing 
applications. The existence of a carryforward balance is consistent 
with INS' past practice. As explained below, technical adjustments were 
applied to the fee base for some forms to ensure fair distribution of 
costs among users. The net effect of those adjustments is subtracted so 
that they will have no net impact on the aggregate INS fee revenue 
requirement (Line 6). The algebraic sum of these three amounts is the 
total revenue requirement of $356.9 million (Line 7).
    Subtracting the revenue requirement from the funds available shows 
a revenue shortfall of $23.5 million (Line 8). Dividing this shortfall 
by the revenues projected under the current fee schedule produces the 
percentage by which the fees must be increased, 7.5 percent (Line 9).

D. Computation of the Fees

    The proposed fees for most Immigration and Naturalization forms 
were calculated by applying the increase of 7.5 percent to the current 
fee, and rounding the result upward or downward to the nearest $5.00. 
Fees adjusted in this manner are shown on Exhibit 5.
    There were two exceptions to this computational procedure. One 
exception is a consequence of forms consolidation actions affecting the 
Petition for a Nonimmigrant Worker, I-129, where procedures and charges 
have been altered in response to experience with the consolidated forms 
and suggestions from users. The new charges associated with the I-129 
are described below, and presented in Exhibit 6. The other exception is 
associated with technical adjustments to the computational base for 
certain forms, as described below and shown in Exhibit 7.
1. Petition For a Nonimmigrant Worker, I-129
    On October 4, 1991, INS published a proposed revision of Form I-
129, Petition for a Nonimmigrant Worker (56 FR 50350). This revision 
consolidated a number of separate application and petition processes 
that had previously been handled on separate application forms, each 
with separate fees. To the extent possible, the new form retained the 
original fee structure, which was based upon the costs associated with 
each separate adjudication.
    After the consolidation of Form I-129, INS received a number of 
comments and questions regarding the I-129 process. As a result, INS 
proposes to revise Form I-129 to incorporate several additional 
processes created by the Immigration Act of 1990 (Pub. L. 101-649) and 
the Miscellaneous and Technical Immigration and Naturalization 
Amendments of 1991 (Pub. L. 102-232), and to simplify the application 
procedures in response to public comments. For example, INS proposes to 
revise procedures in instances where an employer is filing for one 
worker to allow the worker's dependents to be included in the petition 
instead of requiring separate applications. In addition, INS would no 
longer require separate petitions for groups where the members will be 
applying for visas at more than one consulate or for visa-exempt 
workers applying for admission at different ports of entry.
    Current Form I-129 Fee Structure:
    The fee for a Petition for a Nonimmigrant Worker consists of a base 
fee of $70 plus either:

--$10 per worker if requesting consulate or port-of-entry notification 
for visa issuance or admission;
--$80 per worker if requesting a change of status; or
--$50 per worker if requesting an extension of stay.

    Proposed Form I-129 Fee Structure:
    The proposed fee for a Petition for a Nonimmigrant Worker is $120 
per petition plus $10 for each dependent if filing for one worker, and 
$100 per petition plus $20 for each worker if filing for more than one 
worker. The changes simplify the application process and more fairly 
distribute the costs of processing.
    Because INS has consolidated actions which were previously 
separate, data are not yet available for establishing a fee based upon 
actual cost experience. Therefore, the proposed fee is based upon 
estimates of these costs.
2. Technical Adjustments to Computation Base for Certain Applications
    Before undertaking the percentage computations to arrive at the fee 
schedules proposed in this rule, INS reviewed the cost information 
supporting the current fee schedule. The information on processing 
times and related costs, the costs of FBI name and fingerprint checks, 
the costs of naturalization ceremonies conducted by United States 
Courts, the costs of INS immigration document and card production, the 
indirect costs and the surcharge were examined. (Copies of this 
analysis are available upon request.) Some differences were found 
between the current fees and the statistical information on the 
associated costs. The differences are small, and probably result from 
data corrections after the fees were computed.
    In order to ensure fair distribution of costs among users, INS 
adjusted, upward or downward as necessary, the current fees for forms 
where differences were identified, before computing the proposed fee 
increase for those forms. INS ensured that this process had no net 
effect on the total revenue increase proposal by deducting the revenue 
increase that would be caused by the technical adjustments from the 
total revenue requirement before calculating the percentage fee revenue 
adjustment that would be applied to all forms. As previously noted, 
this deduction appears on Line 6 of Exhibit 4, where the fee revision 
requirement is calculated.

V. Proposed Fee Adjustments

    Proposed fee adjustments are shown in Exhibits 5-7.
    In accordance with 5 U.S.C. 605(b), the Attorney General certifies 
that this rule does not have a significant adverse economic impact on a 
substantial number of small entities. This rule is not considered to be 
a major rule within the meaning of section 1(b) of E.O. 12291, nor does 
this rule have Federalism implications warranting the preparation of a 
Federalism Assessment in accordance with E.O. 12612.
    The information collection requirements contained in this rule have 
been cleared by the Office of Management and Budget under the 
provisions of the Paperwork Reduction Act. Clearance numbers for these 
collections are contained in 8 CFR 299.5, Display of Control Numbers.

List of Subjects in 8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(Government agencies), Fees, Forms, Freedom of information, Privacy, 
Reporting and recordkeeping requirements, Surety bonds.
    Accordingly, part 103 of chapter I of title 8 of the Code of 
Federal Regulations is proposed to be amended as follows:

PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF 
SERVICE RECORDS

    1. The authority citation for part 103 continues to read as 
follows:

    Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1201, 1252 
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874, 
15557; 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.

    2. Section 103.7, paragraph (b)(1) is amended by revising the 
entries listed to read as follows:


Sec. 103.7  Fees.

* * * * *
    (b) * * *
    (1) * * *
    Form I-17. For filing application for school approval, except in 
the case of a school or school system owned or operated as a public 
educational institution or system by the United States or a state or 
political subdivision thereof--$140.
    Form I-90. For filing application for Alien Registration Receipt 
Card (Form I-551) in lieu of an obsolete card or in lieu of one lost, 
mutilated or destroyed, or in a changed name--$75.
    Form I-102. For filing application (Form I-102) for Arrival-
Departure Record (Form I-94) or Crewman's Landing Permit (Form I-95), 
in lieu of one lost, mutilated, or destroyed--$65.
* * * * *
    Form I-129. For filing a petition for a nonimmigrant worker--$120 
per petition plus $10 for each dependent if filing for one worker; $100 
per petition plus $20 for each worker if filing for more than one 
worker.
    Form I-192F. For filing petition to classify nonimmigrant as 
fiancee or fiance under section 214(d) of the Act--$75.
* * * * *
    Form I-130. For filing petition to classify status of alien 
relative for issuance of immigrant visa under section 204(a) of the 
Act--$80.
    Form I-131. For filing application for issuance of reentry permit--
$70.
    Form I-140. For filing petition to classify preference status of an 
alien on basis of profession or occupation under section 204(a) of the 
Act--$75.
    Form I-191. For filing application for discretionary relief under 
section 212(c) of the Act--$90.
    Form I-192. For filing application for discretionary relief under 
section 212(d)(3) of the Act, except, in an emergency case, or where 
the approval of the application is in the interest of the United States 
Government--$90.
    Form I-193. For filing application for waiver of passport and/or 
visa--$95.
    Form I-212. For filing application for permission to reapply for an 
excluded or deported alien, an alien who has fallen into distress and 
has been removed as an alien enemy, or an alien who has been removed at 
Government expense in lieu of deportation--$95.
* * * * *
    Form I-360. For filing petition for an Amerasian, Widow(er), or 
Special Immigrant--$80, except there is no fee for a petition seeking 
classification as an Amerasian.
    Form I-485. For filing application for permanent residence status 
or creation of a record of lawful permanent residence--$130 for an 
applicant 14 years of age or older; $100 for an applicant under the age 
of 14 years.
* * * * *
    Form I-526. For filing a petition for an alien entrepreneur--$155.
* * * * *
    Form I-539. For filing an application to extend or change 
nonimmigrant status--$75 plus $10 per co-applicant.
* * * * *
    Form I-600. For filing petition to classify orphan as an immediate 
relative for issuance of immigrant visa under section 204(a) of the 
Act. (When more than one petition is submitted by the same petitioner 
on behalf of orphans who are brothers or sisters, only one fee will be 
required.)--$155.
    Form I-600A. For filing application for advance processing of 
orphan petition. (When more than one petition is submitted by the same 
petitioner on behalf of orphans who are brothers or sisters, only one 
fee will be required.)--$155.
    Form I-601. For filing application for waiver of ground of 
excludability under section 212 (h) or (i) of the Act. (Only a single 
application and fee shall be required when the alien is applying 
simultaneously for a waiver under both those subsections)--$95.
    Form I-612. For filing application for waiver of the foreign-
residence requirement under section 212(e) of the Act--$95.
* * * * *
    Form I-751. For filing an application to remove the conditions on 
residence which is based on marriage--$80.
* * * * *
    Form I-765. For filing an application for employment authorization 
pursuant to 8 CFR 274a.13--$70.
* * * * *
    Form I-817. For filing application for voluntary departure under 
the Family Unity Program--$80. The maximum amount payable by the 
members of a family filing their applications concurrently shall be 
$225.
* * * * *
    Form N-300. For filing application for declaration of intention--
$75.
* * * * *
    Form N-400. For filing an application for naturalization--$95. For 
filing an application for naturalization under section 405 of the 
Immigration Act of 1990, if the applicant will be interviewed in the 
Philippines--$120.
* * * * *
    Form N-470. For filing application for section 316(b) or 317 of the 
Act benefits--$115.
    Form N-565. For filing application for a certificate of 
naturalization or declaration of intention in lieu of a certificate or 
declaration alleged to have been lost, mutilated, or destroyed; for a 
certificate of citizenship in a changed name under section 343 (b) or 
(d) of the Act; or for a special certificate of naturalization to 
obtain recognition as a citizen of the United States by a foreign state 
under section 343(c) of the Act--$65.
    Form N-600. For filing application for certificate of citizenship 
under section 309(c) or section 341 of the Act--$100.
    Form N-643. For filing an application for a certificate of 
citizenship on behalf of an adopted child--$80.
    Form N-644. For filing an application for posthumous citizenship--
$80.
* * * * *
    Dated: December 23, 1993.
Janet Reno,
Attorney General.

Exhibit 1

    Note: The following exhibit will not appear in the Code of 
Federal Regulations.

                       Derivation of Management and Administration (M&A) Distribution Key                       
                                               [Fiscal Year 1994]                                               
----------------------------------------------------------------------------------------------------------------
                                                         Full-Time Equivalent Work Years (FTE)                  
                                      --------------------------------------------------------------------------
             Description                   Examinations Fee                                                     
                                               Account           All Other INS Accounts           Total         
----------------------------------------------------------------------------------------------------------------
Non-M&A Work Years...................                    3,951                   13,291                   17,242
Percent..............................                     22.9                     77.1                     100 
----------------------------------------------------------------------------------------------------------------

Exhibit 2

    Note: The following exhibit will not appear in the Code of 
Federal Regulations.

                      Examinations Fee Account--Projected Positions, Work Years and Dollars                     
                                               [Fiscal Year 1994]                                               
----------------------------------------------------------------------------------------------------------------
                        Program                              Positions         Work years        Dollars ($000) 
----------------------------------------------------------------------------------------------------------------
Inspections............................................                241                240             15,847
Border Patrol..........................................  .................  .................  .................
Investigations.........................................                100                100              7,533
Detention & Deportation................................  .................  .................  .................
Adjudications & Naturalization.........................              2,258              2,129            145,859
Refugees & Overseas....................................                412                472             40,761
Training...............................................                 22                 20              3,153
Data & Communications..................................                 72                 68             34,863
Information & Records Management.......................                736                801             51,359
Intelligence...........................................                  8                  8                549
Legal Proceedings......................................                116                112              9,432
Construction & Engineering.............................                  1                  1                178
Management & Administration............................                213                204             21,939
                                                        --------------------------------------------------------
    Total..............................................              4,179              4,155            331,473
----------------------------------------------------------------------------------------------------------------

Exhibit 3

    Note: The following exhibit will not appear in the Code of 
Federal Regulations.

 Projected Transfers; Salaries and Expenses Appropriation to Examinations Fee Account--Positions, Work Years and
                                                     Dollars                                                    
                                               [Fiscal Year 1994]                                               
----------------------------------------------------------------------------------------------------------------
                        Program                              Positions          Work years       Dollars ($000) 
----------------------------------------------------------------------------------------------------------------
Inspections............................................  .................  .................  .................
Border Patrol..........................................  .................  .................  .................
Investigations.........................................  .................  .................  .................
Detention & Deportation................................  .................  .................  .................
Adjudications & Naturalization.........................  .................  .................  .................
Refugees & Overseas....................................  .................  .................  .................
Training...............................................  .................  .................  .................
Data & Communications..................................  .................  .................  .................
Information & Records Management.......................  .................  .................  .................
Intelligence...........................................  .................  .................  .................
Legal Proceedings......................................                 78                 78              6,304
Construction & Engineering.............................  .................  .................  .................
Management & Administration\1\.........................                126                117             12,311
                                                        --------------------------------------------------------
    Total..............................................                204                195            $18,615
----------------------------------------------------------------------------------------------------------------
\1\To distribute costs properly, INS would transfer 143 positions, 133 work years and associated costs. However,
  in FY 1994 INS will propose to transfer only 126 positions, 117 work years and associated costs, so that the  
  difference can be used to support additional work years in the adjudications and naturalization program during
  the period of transition when work is shifted to service centers.                                             
                                                                                                                

Exhibit 4

    Note: The following exhibit will not appear in the Code of 
Federal Regulations.

              Proposed Examinations Fee Revenue Adjustment              
                           [Fiscal Year 1994]                           
------------------------------------------------------------------------
  Line                      Description                    Dollars (000)
------------------------------------------------------------------------
          Funds Availability                                            
1.......  Carry-forward from FY 1993....................         $18,677
2.......  Anticipated FY 1994 Revenue at Current Fee             314,741
           Levels.                                                      
                                                         ---------------
3.......  Projected FY 1994 Funds Availability (Line 1 +         333,418
           Line 2).                                                     
          Costs                                                         
4.......  Funding Requirements (1994 Costs).............         331,473
5.......  Planned Carry-forward to FY 1995 (1 months'             27,623
           cost).                                                       
6.......  Less: Effect of Technical Adjustments.........           2,180
                                                         ---------------
7.......  Total Revenue Requirement (Line 4 + Line 5 -           356,916
           Line 6).                                                     
          Impact on Fee Schedule                                        
8.......  Additional Revenue Required (Line 3 - Line 7).          23,498
9.......  Fee Revenue Adjustment Required (Line 8                   7.5%
            Line 2).                                            
------------------------------------------------------------------------


Exhibit 5

    Note: The following exhibit will not appear in the Code of 
Federal Regulations.

                        Examinations Fee Account                        
                    [Current Fees and Proposed Fees]                    
------------------------------------------------------------------------
                                                               Proposed 
 Form No.          Form name/description        Current fee      fee    
------------------------------------------------------------------------
I-17......  Petition for Approval of School            $130          140
             for Attendance by Nonimmigrant                             
             Students.                                                  
I-90......  Application to Replace Alien                 70           75
             Registration Card.                                         
I-130.....  Petition for Alien Relative.......           75           80
I-131.....  Application for Travel Document...           65           70
I-140.....  Immigrant Petition for Alien                 70           75
             Worker.                                                    
I-192.....  Application for Advance Permission           85           90
             to Enter as Nonimmigrant.                                  
I-193.....  Application for Waiver of Passpart           90           95
             and/or Visa.                                               
I-212.....  Application for Permission to                90           95
             Reapply for Admission into the                             
             U.S. After Deportation or Removal.                         
I-360.....  Petition for Amerasian, Widow(er),           75           80
             or Special Immigrant (except for                           
             a petition seeking classification                          
             as an Amerasian in which case the                          
             fee is waived).                                            
I-485.....  Application to Register Permanent                           
             Residence or Adjust Status.                                
            If 14 years of age or older.......          120          130
            If under 14 years of age..........           95          100
I-539.....  Application to extend/Change                 70           75
             Nonimmigrant Status.                                       
I-601.....  Application for Waiver of Grounds            90           95
             of Excludability.                                          
I-612.....  Application for Waiver of the                90           95
             Foreign Residence Requirement.                             
I-751.....  Petition to Remove the Condition             75           80
             on Residence.                                              
I-817.....  Application for Voluntary                    75           80
             Departure Under Family Unity                               
             Program.                                                   
N-300.....  Application to File Declaration of           70           75
             Intention.                                                 
N-400.....  Application for Naturalization....           90           95
------------------------------------------------------------------------


Exhibit 6

    Note: The following exhibit will not appear in the Code of 
Federal Regulations.
EXAMINATIONS FEE ACCOUNT
Current Fee and Proposed Fee
Petition for a Nonimmigrant Worker (I-129)
Current Fee Structure:
    The fee for a petition is a base fee of $70 plus either:
    --$10 per worker if requesting consulate or port-of-entry 
notification for visa issuance or admission;
    --$80 per worker if requesting a change of status; or
    --$50 per worker if requesting an extension of stay.
Proposed Fee Structure:
    If filing for one worker, $120 per petition plus $10 for each 
dependent.
    If filing for more than one worker, $100 per petition plus $20 for 
each worker.

Exhibit 7

    Note: The following exhibit will not appear in the Code of 
Federal Regulations.

                                            Examinations Fee Account                                            
                           [Current Fee and Proposed Fee, with Technical Adjustments]                           
----------------------------------------------------------------------------------------------------------------
Form No.                                                                                                        
                          Form name/description                    Current fee     Adjusted fee    Proposed fee 
----------------------------------------------------------------------------------------------------------------
I-102     Application for Replacement/Initial Nonimmigrant                   $50             $60             $65
           Arrival Departure Document.                                                                          
I-129F    Petition for Alien Fiance(e)..........................              75              70              75
I-191     Application for Advance Permission to Return to                     90              85              90
           Unrelinquished Domicile.                                                                             
I-526     Immigrant Petition by Alien Entrepreneur..............             140             145             155
I-600     Petition to Classify Orphan as an Immediate Relative..             140             145             155
I-600A    Application for Advance Processing of Orphan Petition.             140             145             155
I-765     Application for Employment Authorization..............              60              65              70
N-470     Application to Preserve Residence for Naturalization                90             105             115
           Purposes.                                                                                            
N-565     Application for Replacement Naturalization/Citizenship              50              60              65
           Document.                                                                                            
N-600     Application for Certification of Citizenship..........              90              95             100
N-643     Application for Certificate of Citizenship in Behalf                85              75              80
           of an Adopted Child.                                                                                 
N-644     Application for Posthumous Citizenship................              60              75              80
----------------------------------------------------------------------------------------------------------------

[FR Doc. 94-298 Filed 1-7-94; 8:45 am]
BILLING CODE 4410-01-M