[Federal Register Volume 59, Number 6 (Monday, January 10, 1994)] [Proposed Rules] [Pages 1308-1317] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-298] [[Page Unknown]] [Federal Register: January 10, 1994] ======================================================================= ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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