Federal Register, Volume 63 Issue 7 (Monday, January 12, 1998)

[Federal Register Volume 63, Number 7 (Monday, January 12, 1998)]
[Proposed Rules]
[Pages 1775-1797]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-576]

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Proposed Rules
Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 63, No. 7 / Monday, January 12, 1998 /
Proposed Rules

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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 103

[INS No. 1768-96; AG No. 2137-98]
RIN 1115-AE42

Adjustment of Certain Fees of the Immigration Examinations Fee
Account

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to adjust the fees schedule of the
Immigration Examinations Fee Account for certain immigration
adjudication and naturalization applications and petitions. Fees
collected from persons filing these applications and petitions are
deposited into the Immigration Examinations Fee Account and used to
fund the cost of processing immigration adjudication and naturalization
applications and petitions and associated support services; the cost of
providing similar services to asylum and refugee applicants; and the
cost of similar services provided to other immigrants at no charge. The
fees that fund the Immigration Examinations Fee Account were last
revised on July 14, 1994; since the revision, the cost of the services
supported by the Account have increased. The Immigration and
Naturalization Service (INS) conducted a thorough review of the
resources and activities funded by the Account and has determined that
the current fees do not recover the costs of services. The fee
increases range from $20.00 to $255.00 depending on the type of
application or petition filed. Without a fee increase and based on 4.3
million fee-paying applications, the INS projects FY 1998 fee revenues
of $368.4 million. The INS also estimates that it will cost $638.6
million to process 5 million applications, of which 4.3 are expected to
be fee-paying. This would result in a shortfall of revenue to expenses
of approximately $270.2 million. This rule is necessary to ensure that
the fees that fund the Immigration Examinations Fee Account generate
sufficient revenue to recover the full cost of processing immigration
adjudication and naturalization applications, petitions, the cost of
asylum, refugee and other immigrant services provided at no charge to
the applicant.

DATES: Written comments must be submitted on or before March 13, 1998.

ADDRESSES: Please submit written comments, in triplicate (one original
and two copies), to the Director, Policy Directives and Instructions
Branch, Immigration and Naturalization Service (INS), 425 I Street,
N.W., Room 5307, Washington, D.C., 20536, Attention: Public Comment
Clerk. To ensure proper handling, please reference INS Number 1768-96
on your correspondence. Comments are available for public inspection at
the above address by calling (202) 514-3291 to arrange for an
appointment.

FOR FURTHER INFORMATION CONTACT: Michael T. Natchuras, Chief, Fee
Policy and Rate Setting Branch, Office of Budget, Immigration and
Naturalization Service, or Diane M. Eggert, Senior Staff Accountant,
Fee Policy and Rate Setting Branch, Office of Budget, Immigration and
Naturalization Service, on (202) 616-2754, or in writing at 425 I
Street, N.W., Room 6240, Washington, D.C., 20536. Detailed
documentation of the rate setting process is available upon request by
calling (202) 616-2754.

SUPPLEMENTARY INFORMATION:

Legislative Authority

A. Departments of Commerce, Justice, and State, the Judiciary, and
Related Agencies Appropriation Acts of 1989 and 1991

The Departments of Commerce, Justice, and State, the Judiciary, and
Related Agencies Appropriation Act, 1989 (Public Law (P.L.) 100-459)
authorized the INS to prescribe and collect fees to recover the cost of
providing certain immigration adjudication and naturalization services.
P.L. 100-459 also authorized the establishment of the Immigration
Examinations Fee Account (Examinations Fee Account) in the Treasury of
the United States. All revenue from fees collected for the provision of
immigration adjudication and naturalization services are deposited in
the Examinations Fee Account and ``* * * 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 * * *
(8 U.S.C. 1356(n)).''
In subsequent legislation, the Departments of Commerce, Justice,
and State, the Judiciary, and Related Agencies Appropriations Act, 1991
(P.L. 101-515), Congress further authorized ``* * * 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.'' (8 U.S.C. 1356(m))
Conference Report 104-378, Making Appropriations for the
Departments of Commerce, Justice, and State, the Judiciary, and Related
Agencies For the Fiscal Year Ending September 30, 1996, and For Other
Purposes, directs the INS to fund the cost of the Cuban-Haitian Entrant
Program from the Examinations Fee Account. The Report states, ``(t)he
conferees have also agreed that the activities related to the
resettlement of Cubans and Haitians should be transferred to the * * *
Service and that the costs of these activities should be supported by
the Immigration Examinations Fee account.''

B. The Independent Offices Appropriation Act, 1952

The INS also employs the authority granted through the Independent
Offices Appropriation Act, 1952 ((P.L. 82-137) (IOAA), 31 U.S.C. 9701),
commonly referred to as the ``user fee statute,'' to develop its fees.
The user fee statute directs Federal agencies to identify services
provided to unique segments of the population and to charge fees for
those services, rather than supporting such services through general
tax revenues. The IOAA states that ``* * * each service or thing of
value provided by an agency * * * to a person * * * is to be self-
sustaining to the extent possible.'' The IOAA further states that

[[Page 1776]]

charges for such services or things of value should be based on ``* * *
[t]he costs to the Government * * *''

C. The Chief Financial Officers Act of 1990

The INS must also conform to the requirements of the Chief
Financial Officer Act of 1990 (P.L. 101-576). Section 205(a)(8) of the
Act requires each agency's Chief Financial Officer to ``review, on a
biennial basis, the fee, royalties, rents, and other charges imposed by
the agency for services and things of value it provides, and make
recommendations on revising those charges to reflect costs incurred by
it in providing those services and things of value.'' (31 U.S.C.
902(a)(8))

Federal Cost Accounting and Fee Setting Standards and Guidelines

A. Office of Management and Budget (OMB) Circular No. A-25, User
Charges

When developing fees for services, the INS adheres to the
principles contained in OMB Circular Number A-25, User Charges. OMB
Circular A-25 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.'' (OMB Circular A-25, User Charges, section 6.) The
Circular provides the following discussion of what constitutes a
``special benefit'':

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 * * *). For
example, a special benefit will be considered to accrue and a user
charge will be imposed when a Government service: (a) [E]nables 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) [P]rovides business stability or contributes to public
confidence in the business activity of the beneficiary (e.g.,
insuring deposits in commercial banks); or (c) [I]s 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 Customs inspection after
regular duty hours). (OMB Circular A-25, User Charges, section
6.a.(1))

The guidance contained in OMB Circular A-25 is applicable to the
extent that it is not inconsistent with any Federal statute. Specific
legislative authority to charge fees for services takes precedence over
OMB Circular A-25 when the statute expressly designates ``* * * who
pays the charge; how much is the charge; where collections are
deposited.'' (OMB Circular A-25, User Charges, section 4.b.) When a
statute does not address issues of how to calculate fees or what costs
to include in the fee calculation, Federal agencies must follow the
principles and guidance contained in OMB Circular A-25 to the fullest
extent allowable.
OMB Circular A-25 directs Federal agencies to charge the ``full
cost'' of providing services when calculating fees that provide a
specific benefit to recipients. According to the Circular:

``Full cost'' includes all direct and indirect costs to any part
of the Federal Government of providing a good, resource, or * * *
appropriate share of:
(a) Direct [or] indirect personnel costs, including salaries and
fringe benefits such as medical insurance and retirement * * *
(b) Physical overhead, consulting, and other indirect costs
including material and supply costs, utilities, insurance, travel
and rents or imputed rents on land, buildings, and equipment * * *
(c) The management and supervisory costs.
(d) The costs of enforcement, collection, research,
establishment of standards, and regulation * * *
(e) Full cost shall be determined or estimated from the best
available records of the agency, and new cost accounting systems
need not be established solely for this purpose. (OMB Circular A-25,
User Charges, section 6.d.)

B. 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.''
(User Fee Program, Supplement to Department of Justice Budget
Formulation and Execution Calls, April 1993, pg. 2)

C. Federal Accounting Standards Advisory Board Statement of Federal
Financial Accounting Standards No. 4: Managerial Cost Accounting
Concepts and Standards for the Federal Government

When developing fees for services, the INS also adheres to the cost
accounting concepts and standards recommended by the Federal Accounting
Standards Advisory Board (FASAB). The FASAB was established in 1990
through a Memorandum of Understanding between the Secretary of the
Treasury, the Director of the OMB, and the Comptroller General of the
United States. The Board's purpose is to recommend accounting standards
for the Federal Government. In developing its recommendations, the
FASAB considers the financial and budgetary information requirements of
the Congress, Executive agencies, and other users of Federal financial
information.
In June 1995, OMB and General Accounting Office (GAO) published the
FASAB Statement of Federal Financial Accounting Standards No. 4:
Managerial Cost Accounting Concepts and Standards for the Federal
Government. In this document the FASAB recommends five standards as the
fundamental elements of managerial cost accounting for Federal
agencies: ``(1) accumulating and reporting costs of activities on a
regular basis for management information purposes, (2) establishing
responsibility segments to match costs with outputs, (3) determining
full costs of government goods and services, (4) recognizing the costs
of goods and services provided among federal entities, and (5) using
appropriate costing methodologies to accumulate and assign costs to
outputs.'' (FASAB, Statement of Federal Financial Accounting Standards
Number 4, section 2, pg. 1) These standards became effective for
Federal agencies on September 30, 1996.
In the Basis for Conclusions, the FASAB states, ``* * * As stated
in the [Exposure Draft], the full cost of an output produced by a
responsibility segment is the sum of direct and indirect costs that
contribute to the output, including the costs of supporting services
provided by other segments and entities.'' (FASAB, Statement of Federal
Financial Accounting Standards Number 4, section 199, pg. 78) The
discussion emphasizes that full cost information has many uses,
including ``Setting fees and prices for government goods and services''
and provides the following discussion on full cost:

Many respondents agreed that full cost should be considered as a
primary basis for setting fees and reimbursements for government
goods and services. As pointed out in the E[xposure] D[raft], it is
a federal policy that, with certain exceptions, user charges (prices
or fees) should be sufficient to recover the full costs of goods,
services, and resources provided by the federal government as
sovereign. (FASAB Statement of Federal Financial Accounting
Standards Number 4, section 203, pg. 79)
To implement the policy, full cost information is necessary.
Only with reliable full cost information can management ensure that
user charges fully recover the costs. (FASAB, Statement of Federal
Financial

[[Page 1777]]

Accounting Standards Number 4, section 204, pg. 79-80)

The Immigration Examinations Fee Account

A. Background

The Department of Justice (DOJ), Immigration and Naturalization
Service (INS) charges fees for the processing of specific immigration
adjudication and naturalization applications and petitions. The INS
maintains four fee accounts; the fees collected and deposited in each
account are used to fund specific services. The four fee accounts are:
the Examinations Fee Account, the Immigration User Fee Account, the
Land Border Inspection Fee Account, and the Legalization Fee Account.
Since the fees deposited into each of the accounts are designed to
recover the cost of specific immigration and naturalization services,
these fees must be reviewed regularly and adjusted as: (1) Costs
change, (2) more precise cost determination processes become available,
or (3) directed by legislation. This rule proposes to revise certain
immigration adjudication and naturalization fees that are collected and
deposited into the Examinations Fee Account.

B. History of Immigration Adjudication and Naturalization Fees and the
Immigration Examinations Fee Account

The INS has been charging fees for immigration adjudication and
naturalization services since 1968. At that time, the INS' authority to
assess fees derived from the authority of the IOAA. The revenue
generated from these fees was deposited into the General Fund of the
United States Treasury as miscellaneous receipts and was not available
to the INS. The INS received an appropriation to fund immigration
adjudication and naturalization services. The fees charged during the
period of 1968 to 1989 were calculated based on the salary and benefit
costs of the INS adjudicators who processed immigration adjudication
and naturalization applications and petitions, and did not recover the
full cost of service.
In 1989, Congress established the Examinations Fee Account. In the
first year of the Account's existence, the INS retained the
appropriation that funded the processing of immigration adjudication
and naturalization applications and petitions. During that year, fees
collected for these applications and petitions were used to enhance the
adjudication and naturalization program (although Congress did
temporarily direct the INS to deposit $50 million of the fee revenue
into the General Fund of the Treasury). In the subsequent years, fees
deposited into the Account have been the sole source of funding for
immigration adjudication and naturalization services, and other
programs as directed by Congress, and replaced the annual appropriation
that the INS received for such services. When the Account was first
established, the INS revised its fee-setting methodology to include a
component for indirect costs. In subsequent legislation, Congress
directed the INS to use revenue in the Examinations Fee Account to fund
the cost of asylum processing and other services provided to immigrants
at no charge. Consequently, the INS began to add a ``surcharge'' to the
immigration adjudication and naturalization fees to recover these
additional costs.
Currently, the Examinations Fee Account is funded by a variety of
fees charged to persons who apply for specific adjudication and
naturalization services by filing various applications and petitions
with the INS or the Executive Office of Immigration Review (EOIR).
Examples of these applications and petitions include, but are not
limited to, applications for permanent resident status, petitions for
relatives, employment authorization applications, reentry permits, and
extensions of temporary stay. The current fees range from $65.00 to
$155.00 and were last revised on July 14, 1994.

C. Sufficiency of the Current Fee Schedule

In FY 1998, the INS may experience a shortfall of revenue to
expenses in the Examinations Fee Account because the current fees do
not recover the full cost of processing immigration adjudication and
naturalization applications and petitions. Based on the current fee
schedule and a projected fee-paying volume of 4.3 million applications,
immigration adjudication and naturalization fees will generate $368.4
million in revenue for FY 1998. For the same period, the estimated cost
of processing immigration adjudication and naturalization applications
and petitions is $638.6 million. This would cause a shortfall of
revenue to expenses of $270.2 million.
In addition, recent legislative changes to the Immigration and
Nationality Act (INA) have reduced the amount of section 245(i) penalty
fees that had been available to enhance the revenue in the Examinations
Fee Account. Previously, certain aliens could apply for adjustment of
status under section 245(i) of the INA by paying a $650.00 penalty fee,
in addition to the base applications fee. Both the base application fee
and the penalty fee were deposited into the Account and were available
to fund immigration adjudication and naturalization programs. The
amendments to section 245(i) have sharply limited the amount of penalty
revenue available to the Examinations Fee Account for immigration
adjudication and naturalization services. Virtually all of the penalty
fee is now deposited into the Immigration Detention Account and
available for only detention and deportation activities. In FY 1998,
the Examinations Fee Account will experience a decrease of
approximately $129.2 million in projected penalty fees due to changes
in the law.
Another factor that had contributed to the insufficiency of the
current fees is the increased cost of providing asylum and refugee
services. Congress has authorized the INS to fund its asylum and
refugee programs, and Cuban and Haitian entrant relocation program from
the Examinations Fee Account. Since the last fee adjustment, funding
levels for the International Affairs program, which administers these
programs, have increased. These increases include the transfer of the
Cuban-Haitian Entrant Program from the Community Relations Service to
the INS on March 31, 1996, which added $10.2 million and 21 positions
to the Account, and the recent transfer of additional asylum and
refugee costs from the Violent Crime Trust Fund to the Account. This
transfer added costs of $29.6 million and 388 positions to the Account.
Overall, funding for the International Affairs program from the Account
has risen from $40.7 million in FY 1994 to a proposed $92.8 million in
FY 1998.

D. Programs and Services Funded through the Examinations Fee Account

The Examinations Fee Account provides approximately 20% of the INS'
funding; funds from the Account are dispersed to virtually every
program within the INS. Figure 1 illustrates the proposed FY 1998
funding for the various INS programs through the Examinations Fee
Account, along with the full time equivalents (FTE) supported by this
funding (in thousands of dollars).

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Figure 1.
------------------------------------------------------------------------
FY 1998
Resource FY 1998 FTE
Program amount level
($000)
------------------------------------------------------------------------
Inspections................................... $28,618 405
Investigations................................ 9,930 92
Intelligence.................................. 1,139 13
Adjudication and Naturalization............... 259,696 3,226
International Affairs......................... 92,799 756
Training...................................... 4,275 25
Data and Communications....................... 94,555 70
Information and Records Management............ 128,836 787
Construction and Engineering.................. 1,270 1
Legal Proceedings............................. 6,816 55
Management and Administration................. 18,982 141
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Total................................... $646,916 5,571
------------------------------------------------------------------------

The major programs, activities and services funded by the
Examinations Fee Account are discussed below.
Inspections. Applications and petitions for a full range of
benefits under the immigration laws are adjudicated by inspection
personnel during periods of stand-by time at most ports-of-entry during
non-peak workload hours. Certain types of applications, such as the
Form I-193, Application for Waiver of Passport and/or Visa, are
presented directly at land border ports-of-entry located on the United
States borders, where they are adjudicated by inspection personnel. The
Inspection program receives approximately 6% of its total funding from
the Examinations Fee Account.
Investigations. Resources from the Examinations Fee Account
provided to the Investigations program are focused on the detection and
deterrence of fraud and to protect the integrity of benefits and
documents legitimately provided by the INS to authorized aliens. The
Investigations program's concentration on individual applications has
led to the identification of large-scale production of fraudulent
documentation. Examinations Fee Account funds are used to target
complex criminal organizations involved in immigration benefits fraud
for prosecution. The Investigations program receives approximately 4%
of its total funding from the Examinations Fee Account.
Intelligence. This program provides strategic and tactical
intelligence support to INS offices enforcing the provisions of the
INA, and assists other Federal agencies in addressing national security
issues. The INS's Forensic Document Laboratory is a critical component
of the Intelligence program. Intelligence program support funding from
the Examinations Fee Account is used to detect fraudulent documents and
false claims to citizenship and other immigration benefits and
privileges. The Intelligence program receives approximately 8% of its
total funding from the Examinations Fee Account.
Adjudication and Naturalization. The adjudication and
naturalization program processes, adjudicates, and ultimately grants or
denies applications and petitions for benefits provided under the INA.
The Adjudications program is responsible for processing applications
and petitions for immigration and naturalization benefits, including,
but not limited to: applications for permanent resident status,
applications for work authorization, petitions for relatives,
applications and petitions for immigrant and nonimmigrant workers,
applications for travel documents, and applications for extensions of
temporary stay by nonimmigrants in the United States. Naturalization
processes include the examination of aliens to determine their
qualifications for naturalization, the issuance of citizenship
documents, the appearance of INS officials and the conduct of
administrative naturalization oaths, and the appearance of INS
officials at Federal and state courts that administer naturalization
oaths. The Adjudications and Naturalization program operates in field
offices located throughout the United States, and in four service
centers located in California, Texas, Nebraska, and Vermont.
Applications for immigration, nationality and citizenship benefits, and
naturalization are received and adjudicated by a corps of immigration
adjudication officers, and adjudication support personnel. District
officers adjudicate cases that may require personal appearances by
applicants and petitioners. Service center operations concentrate on
cases that can be processed without individual appearances and that
benefit from the economies generated by large volume, production-
oriented processing, where immigration adjudication officers can
conduct their reviews without interruptions caused by telephone
inquiries and meetings with applicants.
Examinations Fee Account revenue is used to process and adjudicate
applications and petitions for benefits provided under the INA, along
with providing responses to inquires from the public and private
sectors. The INS uses funds from the Examinations Fee Account for the
entire benefits delivery process, from initial information
dissemination and forms distribution, through the records and files
activities, case adjudication, and the final close-out of the case and
file. In the proposed FY 1998 Examinations Fee Account Budget, the
adjudications and naturalization program requested resource
enhancements that support the agency's strategic plan and permit the
INS to build on the progress begun with previous enhancements. These
resources will support and expand the contract with private vendors to
provide the records maintenance services necessary to maintain pace
with expected workload in FY 1998 and the ability to meet the
challenges posed by new legislation and the associated increased demand
for a broad range of information. These resources will support and
expand on the records services provided to the key Districts (New York,
Los Angeles, Miami, Chicago, and San Francisco), extend the direct mail
program for naturalization applications to additional districts,
provide funding for expanding capacity in the service centers, and
develop pilot automation procedures in the benefits process. The direct
mail program was instituted by the INS to allow the public to mail
certain applications and petitions directly to service centers

[[Page 1779]]

where they are receipted and processed on the Computer Linked
Application Information Management System (CLAIMS); when necessary, the
applications and petitions are then transferred to district offices for
interviews and adjudication. Currently, the INS has instituted the
direct mail program for naturalization applications in four districts:
New York, Los Angeles, Miami, and Chicago. Additional funding will
allow for expansion of this program to other INS district offices.
Service centers will expand capacity and infrastructure so that direct
mail and CLAIMS may be extended to more districts. CLAIMS is a local
area network and mainframe system that records and tracks cases for
immigration and benefits. CLAIMS also includes a receipt tracking
system in which an application or petition is receipted and then
adjudicated.
The resources from the Examinations Fee Account will provide
naturalization case support to the service centers by modifying CLAIMS
and re-engineering the naturalization process by developing a
naturalization module (NATS), within the CLAIMS environment. In
addition, the Examinations Fee Account will provide resources to
improve the INS' response to inquiries from the public and private
sectors and the various branches of government, by telephone, in-
person, and in writing by expanding and consolidating current telephone
improvement efforts to establish a single
1-800 line that would act as a front-end to all immigration benefit and
naturalization questions. The single 1-800 line would enable the INS to
provide information on the status of applications and petitions, accept
forms requests, and provide information on the requirements for filing
an application and petition. This 1-800 line will increase the
accessibility and availability of adjudication and naturalization forms
and information without the necessity of multiple telephone inquiries.
Fee revenues will be used to fund the naturalization reengineering
project being conducted by the INS, the DOJ, and a private contractor.
The naturalization reengineering will develop pilot programs to
evaluate options for improving the timeliness and quality of
naturalization services. The reengineering project will allow the INS
to encourage and promote naturalization through community outreach and
public education programs.
The Adjudications and Naturalization program receives approximately
99% of its total funding from the Examinations Fee Account.
International Affairs. The function of this program is to
adjudicate refugee and asylum applications (which includes conducting
FBI fingerprint checks of applicants), 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 INA. They also review requests for the Attorney
General to grant humanitarian parole into the United States for
deserving persons. The Congress transferred the cost of the Cuban and
Haitian Entrant Program (CHEP) from the Community Relations Service to
the INS Examinations Fee Account in 1996. Through grants and
cooperative agreements, CHEP has responsibility for: (1) The primary
Resettlement Program, which provides transitional community-based
resettlement services to Cubans and Haitians paroled from INS
detention; (2) the secondary Resettlement Program, which provides
resettlement services, including employment placement and retention at
specialized sites outside the state of Florida for those Cubans and
Haitians whose initial resettlement in South Florida did not lead to
self-sufficiency; and (3) the unaccompanied minors program, which
provides foster care, residential shelter care, and health, counseling,
educational, recreational, and family reunification services to
unaccompanied Cuban and Haitian minors.
The International Affairs program receives approximately 90% of its
total funding from the Examinations Fee Account.
Training. The Training program provides the staff and resources
necessary to maintain an employee development program that meets the
training needs of the INS' adjudications and naturalization workforce.
The Training program provides services through a variety of ways,
including initial training for Asylum, Immigration Adjudications, and
Immigration Information Officers that is currently conducted at the
four INS Service Centers; journeyman-level training for the asylum,
adjudications, and naturalization workforce at the Federal Law
Enforcement Training Center facility in Artesia, New Mexico; programs
conducted by other Federal agencies; programs conducted by private
contractors; and combined presentations using INS and non-INS
resources. The Examinations Fee Account provides the Training program
with resources to fund the costs the program incurs for providing
adjudication and naturalization workforce training. The Training
program receives approximately 14% of its total funding from the
Examinations Fee Account.
Data and Communications. The Data and Communications program
develops and operates INS automated information systems that 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 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. The Data and Communications program also provides
the administrative support functions for the INS through various
management systems, both financial and administrative. The Data and
Communications program receives approximately 25% of its total funding
from the Examinations Fee Account.
Information and Records Management. The Information and Records
Management program provides a variety of services critical to the
adjudication and naturalization processes. These services include:
creation of records; records maintenance, storage and tracking;
response to Freedom of Information Act and Privacy Act requests;
provision of information, including application forms, to the public,
both in-person and by telephone, on immigration-related matters;
compilation, analysis, publication, and issuance of INS statistical
data. The processing of immigration adjudication and naturalization
applications and petitions places a high demand for the services of the
Information and Records Management program; in FY 1998, approximately
64% of the program's total resources will be funded through the
Examinations Fee Account.
Construction and Engineering. The function of this program is to
provide for the acquisition, design, construction, alteration, repair,
maintenance, and management of all buildings, structures, and
facilities that the INS owns or leases, some of which are involved in
the processing of immigration adjudication and naturalization
applications and petitions. The Construction and Engineering program

[[Page 1780]]

receives approximately 2% of its total funding from the Examinations
Fee Account.
Legal Proceedings. Within the Legal Proceedings program, INS
attorneys provide support to and/or represent the INS in asylum,
rescission, naturalization, visa petition, adjustment of status cases,
registry, sections 212(c) and 241(f), and other examination-related
cases and matters. In FY 1998, the Legal Proceedings program will
receive approximately 9% of its total funding from the Examinations Fee
Account.
Management and Administration. The purpose of the Management and
Administration program is to develop, implement, direct, operate, and
evaluate the administrative support systems and services that meet
internal operational and managerial needs and externally mandated
requirements. Included in this program is the responsibility to provide
executive direction and control of the INS; furnish accurate and prompt
responses to Congressional and public inquires; administer and maintain
effective budget and financial management systems; perform audits;
conduct internal investigations to provide informational responses to
inquires from the GAO, Office of Inspector General, and OMB, and DOJ
offices; and develop and evaluate policies and systems to improve the
effectiveness of INS programs. The major administrative functions
within this program include personnel; accounting; budgeting; equal
employment opportunity; procurement; property management; fleet
management; security; safety and health; and other general services
that support all programs within the INS. These services provide
necessary support functions to the personnel and offices involved in
the processing of immigration adjudication and naturalization
applications and petitions. The Examinations Fee Account provides a
portion of the funding for the Management and Administration program.
In FY 1998, the Management and Administration program will receive
approximately 11% of its total funding from the Examinations Fee
Account.

The Immigration Examinations Fee Account Study

In the proposed rule that preceded the July 1994 fee adjustment,
the INS acknowledged deficiencies in its fee development process and
pledged to undertake a process of continuous improvement in the
management of its fee accounts and the development of its fee
schedules. In the January 10, 1994 proposed rule, the INS stated:

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. (Federal Register, Volume 59, Number
6, January 10, 1994, pg. 1308)

A. Composition of the Fee Study Team

As part of the process of continual improvement, the INS formed a
Fee Study Team composed of INS personnel with expertise in budget,
accounting, finance, rate setting, and immigration adjudication and
naturalization processes. This team was supplemented with contracted
technical support in the areas of Activity-Based Costing (ABC),
activity process decomposition, and statistical sampling. From July
1995 until November of 1996, the Fee Study Team conducted a thorough
review of the activities and costs of the immigration adjudication and
naturalization services funded through the Examinations Fee Account. As
a result of this study, the INS determined that the fee schedule of the
Examinations Fee Account should be revised to reflect the current, full
cost of immigration adjudication and naturalization services. A copy of
this study will be provided upon request. Please see the ``For Further
Information'' section of this rule for details on obtaining a copy of
the study.

B. INS Fee Setting Methodology

The INS Fee Study Team employed an ABC methodology to determine the
cost of the immigration adjudication and naturalization services for
which a fee is charged. ABC relies on the premise that managers do not
manage resources directly, but rather manage the activities that
consume resources. The ABC approach measures costs across an
organization without regard to functional boundaries and aggregates
activities into logical process flows that ultimately deliver a
product, service, or benefit. ABC allows an organization to identify
costs from start to finish and associates those costs with the
activities performed by that organization. Through this cross-
functional process analysis, ABC focuses on the causal relationship of
costs to activities. The FASAB Statement of Federal Financial
Accounting Standards Number 4, Managerial Cost Accounting Concepts and
Standards for the Federal Government, encourages the Federal agencies
to use ABC ``to study its potential within their own operations.''
(section 142, pg. 60). The FASAB also notes that ABC has ``gained broad
acceptance by manufacturing and service industries as an effective
managerial tool.'' (Id.)
The ABC methodology uses a two stage approach to assigning costs.
The first stage assigns resource costs to activities; the second stage
assigns activity costs to cost objects (for the INS, the cost objects
are the immigration adjudication and naturalization applications and
petitions for which a fee is charged). To implement this two stage
approach, ABC requires: the identification and definition of the
activities involved in processing immigration adjudication and
naturalization applications; the examination of budgetary and financial
records to identify the resources required to conduct immigration
adjudication and naturalization services; the assignment of these
resources to the defined activities; and the assignment of activity
costs to defined immigration adjudication and naturalization
applications and petitions for which a fee is charged.
The Fee Study Team also selected a commercially-available ABC
software to use in computing the immigration adjudication and
naturalization application and petition fees. This software application
was specially designed to assign resource costs through activities to
final cost objects (applications and petitions). The data entered into
the software was tailored to INS specifications using the pre-existing
software structure. The software application was a fee calculation
tool; the Fee Study Team performed the analysis necessary to identify
the resources consumed in the processing of the various immigration
adjudication and naturalization applications and petitions, define the
application and petition processing activities, and develop the causal
relationships between the resources, the activities, and the
applications and petitions.

C. Fee Setting Assumptions

In calculating the proposed fees, the INS matched the resources
needed to receive and process the new application and petition with the
workload expected to be received in FY 1998. The adjudications process
is continuous cycle. At any point in time, there will be applications
in various stages of processing. This fee study attempted to

[[Page 1781]]

match the resources required to completely process approximately 5
million applications (of which 4.3 million will be fee-paying
applications). At the time of the fee study, the INS had a ``backlog''
of uncompleted applications in excess of 1.5 million. The cost to
process this backlog was not included in the resource base for this fee
study. The cost to process these applications will be paid through the
carry-over balance in the Examinations Fee Account. This carry over
balance consists of revenue from backlogged applications and section
245(i) penalty fees. (The section 245(i) penalty fee is the amount that
Congress allowed the INS to levy on certain adjustment of status
applicants. The revenue from the section 245(i) penalty fee was used to
subsidize the cost of processing immigration adjudication and
naturalization applications and petitions. In January 1997, Congress
redirected the use of most of this penalty fee to purposes other than
immigration adjudication and naturalization application and petition
processing. The section 245(i) penalty fee was discussed in more detail
in the section of this document titled ``Sufficiency of the Current Fee
Schedule.'')

Defining Immigration Adjudication and Naturalization Activities

In ABC, activities are the critical link to assigning resources to
cost objects (applications and petitions for which the INS charges a
fee). For purposes of the Fee Study, a generic model was constructed to
demonstrate by use of a flowchart the activities involved in processing
INS applications and to assist in identifying the resources these
activities and tasks consume. This flowchart, and its accompanying
text, is the Application Process Model (APM). The APM is a narrative
and graphical representation of the activities (and their component
tasks) necessary to process an application or petition. Linked together
in logical sequence, these activities form a model of the application
process. The APM models all the possible activities and tasks that are
involved in processing immigration adjudication and naturalization
applications and petitions; it does not model a specific application or
petition. Individual activities or tasks may or may not occur in the
processing of each application and may depend on the application type
and the location (i.e., district office, service center) where
processing occurs. The APM serves as the framework for accumulating
activity costs. The activity costs are then assigned to each specific
application and petition based on cycle times. (Cycle times measure the
frequency and intensity of the demand for activity cost by each
specific application or petition. Cycle times are discussed later in
this document.)
To develop the APM, the INS Fee Study Team visited all of the four
service centers and eight district offices, taking notes, conducting
interviews, observing, and dissecting each of the activities involved
in processing the INS applications and petitions for which fees are
charged. The Fee Study Team consolidated the results of the
observations during a series of focus sessions held shortly after the
end of the field visits. During these sessions, the observed activities
were arranged sequentially to illustrate the processing flow of an
application, activities and their component tasks were defined, and the
inputs and outputs of each activity were identified. To ensure the
accuracy of the resulting APM, the Fee Study Team validated the results
with INS and contractual personnel with extensive experience in
processing immigration adjudication and naturalization applications and
petitions. These validation sessions were held at INS headquarters and
at selected field locations. After each validation session, the APM was
modified and updated.
The development of the APM focused on actions, not on
organizational structure or the person or group of persons performing
the activity. An activity had to be an operationally-related set of
tasks that occurred over time, have a definite beginning and end point,
and consume at least five percent and no more than 40 percent of the
Examinations Fee Account resources. Each activity was defined only
once, although it was realized that certain activities (or component
tasks) could occur more than once in processing a specific application
or petition (this type of application-specific processing would be
captured in the cycle time analysis).
The APM attempts to model the logical flow of an application or
petition from the time it is received by the INS to its final
disposition. However, the APM may not map tasks exactly in the sequence
they occur in a specific INS office. A significant criterion for an
accurate APM is that the activities and their corresponding tasks
reasonably represent complete work steps. The operational sequence is
of secondary importance. In visits to the district offices, variations
in the operational sequence of tasks performed among offices were
observed. Therefore, when composing the APM, the placement of a task
(or sequence of tasks) within one named activity rather than another
activity reflects the Study Team's best judgment of how and where the
sequence occurred in most district offices or service centers.
During the development of the APM, it was assumed that as long as
all tasks are accounted for, the sequence in which they occur would not
materially affect the outcome of the Study. Within each activity,
discrete, measurable tasks were identified. Activity and task names
were chosen to describe clearly definable actions. There is a wide
variety of terms used within various INS offices for a particular
activity or task. The Fee Study Team attempted to define each activity
using a commonly understood term. While a few activity and/or task
names may not be recognized by practitioners in the field, the
descriptions of each activity and its subordinate tasks should be
familiar. The APM must be viewed as a whole with both the graphical
representation and the accompanying textual definitions.
The major immigration adjudication and naturalization activities
defined in the APM are:
Receive application and petitions, which includes the tasks of
receiving, opening, screening, batching, and assembling application and
petitions;
Record fee, which includes the task of receipting fees, reconciling
registers, preparing and making deposits, and recording fee information
into INS program and financial systems;
Input application data, which includes the tasks of entering data
from application and petitions into program systems, verifying data,
and printing current system data;
Manage records, which includes the tasks of searching and
requesting files from other INS offices; creating temporary and/or
permanent alien files; consolidating files; connecting returned
evidence with application or petition files; pulling, storing, and
moving files upon request; auditing and updating INS systems on the
location of files; and archiving inactive files;
Adjudicate application, which includes the tasks of distributing
workload; scheduling and conducting interviews, when necessary;
reviewing, examining, and adjudicating applications and petitions;
making and recording adjudicative decisions; requesting and reviewing
additional evidence; and consulting with supervisors, legal counsel,
and researching applicable laws and decisions on non-routine
adjudications;
Prepare outgoing correspondence, which includes the tasks of
preparing

[[Page 1782]]

interview schedules; coordinating requests for inter and intra-agency
reports; preparing decision letters and requests for additional
information; mailing all outgoing correspondence; sending requested
files to other INS offices; preparing visa packages; and preparing and
sending cables to United States consulates and INS offices in foreign
locations;
Issue end product, which includes the tasks of entering alien
registration, employment authorization, naturalization, or certificate
of citizenship information into the appropriate INS system; producing
the card or certificate, including printing, laminating, and
inspection; scheduling and conducting naturalization ceremonies; and
distributing the card or certificates to authorized beneficiaries; and
Respond to inquiry, which includes the tasks of receiving and
responding to inquiries on the status of applications and petitions
filed, or on how to obtain and file the various INS applications and
petitions. Inquiries can be from applicants, legal representatives, or
members of Congress and made through telephone calls, written
correspondence, or walk-in inquiries.
These definitions are important in understanding the processes
occurring at each activity and task level and how each process adds
value to the application or petition.
The APM includes a detailed definition for each identified task.
These definitions are important to understanding the processing that
occurs in each activity and are an integral part of the APM. As noted
previously, detailed documentation of the Fee Study is available upon
request, including the complete APM with definitions. Please refer to
the ``For Further Information'' section of this proposed rule for
instructions on obtaining this information.

Identifying FY 1998 Examinations Fee Account Resources

The second step in implementing an ABC methodology is to identify
the total resources of an organization and to assign these resources to
the defined organizational activities. The Fee Study Team determined
that the FY 1998 Congressional Budget for the Examinations Fee Account
was the best available source of data for determining the cost of
immigration adjudication and naturalization services.

A. Sources of Cost Information

Although the INS prepares financial statements for past fiscal
years, there are problems with relying on financial statements as the
sole source of resource data. Financial statements are inherently
historically-focused. They record past events. While financial
statement analysis can be a useful tool for determining historical
spending patterns, financial statements do not incorporate anticipated
program changes, staffing level fluctuations, or planned infrastructure
improvements. Budgets, on the other hand, formally quantify management
plans. Federal budgets reflect both policy decisions and program
operational plans that have received the approval of both the
Administration and Congress. In the Federal sector, budgets are
rigorously examined at all levels of agency management, by the
Administration through OMB reviews, and by the Congress. For these
reasons, the INS relied on the FY 1998 Congressional Budget for the
Examinations Fee Account as the base for determining the full cost of
providing immigration adjudication and naturalization services for the
ensuing fiscal years (FY 1998 and beyond).
As discussed earlier, the INS must follow Federal guidance in
determining its fees for service. Both the FASAB Managerial Cost
Accounting Standards and OMB Circular A-25, User Charges, require
agencies to base fees and reimbursements on the ``full'' cost of the
goods or services provided. The FY 1998 Congressional Budget for the
Examinations Fee Account was the basis for determining the cost of
immigration adjudication and naturalization service. However, several
adjustments to this budget base were made to arrive at the ``full''
cost of immigration adjudication and naturalization services. These
adjustments included deducting amounts from the Examinations Fee
Account Budget that were not attributable to immigration adjudication
and naturalization services and adding unfunded costs (i.e., bad debt
expense, annual leave liability, and contingent liabilities) to the
budget base. The budget base also includes the cost of asylum and
refugee processing and the cost of applications processed at no charge
to the applicant. These services consume resources but do not produce
revenue; as such, asylum, refugee, and fee-waived costs can also be
considered ``unfunded.''

B. Adjusting for Land Border Costs

Two types of fees are deposited into the Examinations Fee Account:
(1) Fees for services related to immigration adjudication and
naturalization services, and (2) fees for adjudication services
provided at land border ports-of-entry into the United States (Land
Border Services). Fees are charged at the northern and southern United
States land borders for the processing and issuance of land border
travel documents, including: non-immigrant records of arrival and/or
departure, visa waiver non-immigrant records of arrival and/or
departure, Canadian Border boat landing permits, and the replacements
of a lost, stolen, or mutilated nonresident alien Mexican or Canadian
border crossing cards. These land border fees were implemented in
October of 1996 and were considered too new to be included in this Fee
Study. (Both the CFO Act and OMB Circular A-25 require a bi-annual
review of fees for services; the INS will review the adequacy of these
fees at the appropriate time.) The FY 1998 Examinations Fee Account
budget, however, is based on anticipated program f unding levels for
services related to both fee types. To determine the budgeted funding
level for immigration adjudication and naturalization services, amounts
budgeted for Land Border Services were subtracted from the total FY
1998 Examinations Fee Account budget.

C. Determining Unfunded Items

Federal budgets are based on the amount of obligations that an
agency plans to incur within the current fiscal year. Federal agencies
often incur liabilities for actions or events that take place in the
current fiscal year, but the obligations for those actions or events
occur in subsequent fiscal years. These unbudgeted expenses are called
``unfunded items.'' Since the obligation and payment of these amounts
will take place in future periods, they are not included--or
``funded''--in the current period budget, hence the name ``unfunded''
items. The INS must include amounts for unfunded items in its fees to
generate sufficient revenue in the Examinations Fee Account to provide
funding for these items when payment becomes due. The INS must
recognize three categories of unfunded items: contingent liabilities,
annual leave, and bad debt expense. Annual leave is vacation time
earned by INS employees. While annual leave may be earned in one year,
it may not actually be used until future periods. An amount must be
added to the resource base to fund the cost of annual leave earned this
year, but used in another year. A contingent liability is an event or
existing condition that may result in a financial loss. For the INS,
contingent liabilities are usually personnel actions, legal actions, or
contract disputes for which the INS may make a financial settlement or
perform an additional service. (For example, an employee may

[[Page 1783]]

file a personnel action that results in the payment of back wages, or
an interest group may bring a legal action to have the INS re-
adjudicate certain classes of applications without the payment of
additional fees.) When a contingent liability is reasonably probable
and ``estimatable,'' an agency must record the liability in its
official books and records and set aside an amount to fund the
liability when it becomes due and payable. Bad debt expense is incurred
when an applicant submits an application or petition with a non-
negotiable check. The INS has instituted procedures to prevent, as much
as possible, the processing of applications and petitions presented
with a non-negotiable check. However, due to the time lag between the
deposit of the check and the return for non-negotiability, the INS
usually incurs some processing costs. Most often, the INS has processed
the application through the mail room, data entry, and records
management areas. Holding applications until the accompanying checks
are cleared would unfairly penalize the vast majority of clients who
present negotiable checks. However, the fees are calculated at a level
that recovers the full cost of immigration adjudication and
naturalization services provided, even those that are provided when a
non-negotiable check is presented. For that reason, a bad debt expense
must be calculated and added to the budget base.

D. Total FY 1998 Immigration Adjudication and Naturalization Resources

The total resource base for FY 1998 immigration adjudication and
naturalization services is the FY 1998 Examinations Fee Account Budget
adjusted for the cost of Land Border Services, plus the unfunded items
discussed previously. The resulting total is the estimated FY 1998
resources to fund the cost of processing the various immigration
adjudication and naturalization services for which the INS charges a
fee, plus the cost of similar services provided at no cost. The
calculation of total immigration adjudication and naturalization
application and petition processing resources that were assigned to the
various applications and petitions is illustrated in Figure 2.

Figure 2.--Resource Base--Processing Immigration Adjudication and
Naturalization Applications and Petitions ($000)
------------------------------------------------------------------------

------------------------------------------------------------------------
FY 1998 Proposed Examinations Fee Account Budget............ $646,916
Less: Land Border Costs.................................... (14,623)
Add: Bad Debt Expense....................................... 446
Contingent Liabilities.................................... 2,500
Unfunded Annual Leave..................................... 3,390
-----------
Total FY 1998 Resource Base........................... $638,629
------------------------------------------------------------------------

Recommended Cost Assignment Methods

Once the resource base was determined, the Fee Study Team examined
each resource type to determine the cost assignment method that best
links the resource to an activity performed in the processing of
immigration adjudication and naturalization applications and petitions.
Activity costs were then assigned to the various applications and
petitions based on the demand for the activity by the applications or
petitions. Determining a cost assignment method is important to
producing accurate results. Cost assignment methods are determined by
carefully studying the factors that cause a resource to be consumed by
an activity, and the consumption of activity costs by cost
applications. The FASAB, in its Statement of Federal Financial
Accounting Standards Number 4, Managerial Cost Accounting Concepts and
Standards for the Federal Government, section 11, pg. 3, recognizes
three types of cost assignments: direct tracing, cause-and-effect, and
allocation. Determining a cost assignment method depends on (1) the
materiality of the cost being assigned, and (2) the amount of precision
gained by using a particular assignment method. The precision of the
results must be weighed against the time and resources that must be
expended to develop a cost assignment method. Direct Tracing Cost
Assignment. When the relationship of the cost to the cost object is
readily identifiable and measurable, direct tracing is the preferred
method of cost assignment. An example of direct tracing is direct
labor. The time and resources devoted to a specific task, product, or
service can be observed and measured.
Cause-and-Effect Cost Assignment. When the relationship of the cost
to the cost object is not readily observable, but can be assumed and
measured based on another factor, it is called cause-and-effect cost
assignment. For example, the cost of automated data processing can be
assumed relational to the number of lines of data entered. A cost
assignment can be developed using the percentage of lines of data
entered to total cost.
Allocation Cost Assignment. In some cases, however, no relationship
can be developed between the cost and the cost object. For example, the
cost of a firm's chief executive officer may not be related through
either direct-tracing or cause-and-effect to the firm's activities or
cost objects.
Yet the cost of a chief executive officer, and the cost to maintain
staff, is vital to the continued operation of the company for, among
other services, strategic planning, policy decisions, and financing.
When neither a direct-tracing nor cause-and-effect relationship can be
established, a cost allocation is used. Allocation is a fair and
reasonable assignment of cost based on a consistent factor, such as
number of employees, department budgets, or actual costs. Cost
allocation can also be used when the costs being assigned are not
material and it is not cost-beneficial to determine a more precise
assignment method.

Determining the Amount of Resource Costs to be Assigned to
Activities

This section describes how the various cost assignment methods were
used to distribute costs from the FY 1998 resource base to the
immigration adjudication and naturalization activities. (See the
section entitled ``Defining Immigration Adjudication and Naturalization
Activities'' for a discussion of how the Fee Study Team identified and
defined these activities.) Several resource costs, however, were not
assigned to the immigration adjudication and naturalization activities.
These resources included asylum and refugee costs, resources
attributable to applications and petitions for which the INS is not
proposing a fee increase, and any resources that could be immediately
assigned to a specific immigration adjudication and naturalization
application or petition.

A. Costs for Asylum and Refugee Services

Of the $638,629,299 resource base, $92.8 million represents funding
for the asylum and refugee programs administered by the INS'
International Affairs program. Applicants for asylum and refugee
benefits are processed without charge to individuals seeking such
benefits. Therefore, these costs, and the cost of other refugee and
asylum benefits, are not classified as direct costs. Congress has
directed the INS to

[[Page 1784]]

set its immigration adjudication and naturalization fees at a level
that recovers sufficient revenue to provide asylum and refugee
services. The cost of the refugee and asylum programs are allocated to
the fee-based immigration adjudication and naturalization applications
and petitions as a surcharge. The method used to assign this surcharge
is discussed later in this proposed rule.

B. Applications and Petitions for Which the INS is not Proposing a fee
Increase

The intent of the Fee Study was to determine the full cost of the
immigration adjudication and naturalization applications and petitions
for which the INS charges a fee, and to adjust the fees charged for
these applications and petitions based on cost. There are over 40
immigration adjudication and naturalization applications within the
Examination Fee Account Fee Schedule. Some of these applications are
filed in large numbers. For example, 11 applications and/or petitions
types account for more than 97% of the total volume of applications and
petitions filed annually. The remaining applications and petitions are
filed much lower volumes.
This Fee Study was based, in large part, on the actual observation
and measurement of the time needed to perform the various immigration
adjudication and naturalization activities. Since these ``small
volume'' applications are filed much less frequently, actual
observation of the processing of these applications by the Fee Study
Team was difficult. The Fee Study Team could not observe a sufficient
number of these ``small volume'' applications to satisfy statistical
sample requirements. Some of these ``small volume'' applications were
so infrequent that it was impossible for the Fee Study Team to find a
service center or district office that processed the application within
the past year. For example, in FY 1995, only one office reported
receiving the Form N-644, Application for Posthumous Naturalization.
Since these ``small volume'' applications are filed infrequently, the
INS determined that the most reasonable approach was not to revise the
fees for these applications as part of the recently completed fee
study. These ``small volume'' applications may be reviewed and their
fees may be revised as the result of future fee studies.
There are also certain applications that have an altogether
different and complex process. These applications are appeals of
previously adjudicated applications, and motions to reopen or
reconsider a case. Applications for appeals and motions to reopen can
be received by either the INS or the Executive Office of Immigration
Review (EOIR), and are adjudicated by either the Board of Immigration
Review or Immigration Judges. Adjudication of these forms involve
numerous organizations within the INS, and different agencies within
the DOJ. Because of their scope, variation, and complexity, these forms
were not reviewed during the recently completed Fee Study. A thorough
review of the processes and costs of the appeals and motions to reopen
is required and will be performed in a subsequent study.
The applications and petitions for which the INS is not proposing a
fee increase in this proposed rule include: Form EOIR-26, Appeal of
decision of Immigration Judge over which the Board of Immigration
Appeals has appellate jurisdiction; Form EOIR-29, Appeal of decision of
INS over which the Board of Immigration Appeals has appellate
jurisdiction; Form I-256A, Application of Suspension of Deportation
under section 244 of the Act; Form I-290B Notice of Appeals to the
Administrative Appeals Unit; Form I-360, Petition for Amerasian,
Widow(er), or Special Immigrant; Form I-821, Application for Temporary
Protected Status; Form N-300, Application to File Declaration of
Intention; Form N-336, Request for Hearing on a Decision in
Naturalization Proceedings under section 336 of the Act; Form N-470,
Application to Preserve Residence for Naturalization Purposes; and
Motions to Reopen.
The amount of resources attributable to these ``small volume''
applications, and applications for appeals and motions to reopen had to
be deducted from the total FY 1998 immigration adjudication and
naturalization resource base. If such resources were not deducted, the
INS would have attributed all immigration adjudication and
naturalization resources to the fees that were the subject of this
Study. As a result, the cost of the revised fees would have been
overstated. To avoid this potential ``double charging,'' the INS
projected the number of ``small volume'' applications, applications for
appeals, and motions to reopen that it expects to be filed in FY 1998.
This projected volume was multiplied by the current fee for these
applications to approximate FY 1998 costs (using the assumption that
for these applications, appeals, and motions to reopen, revenue equals
costs). This amount, $6.5 million, was deducted from the FY 1998
immigration adjudication and naturalization resource base.

C. Resources Immediately Assignable to Specific Applications and
Petitions

Additionally, there were also several budgeted items that could be
assigned immediately to an application or petition, or a specific group
of applications and petitions, without first being assigned to an
activity. These costs were specifically identified in budget proposals.
The costs immediately attributable to a specific application or group
of applications are:
$32,548,000 to improve the direct mail initiative to improve
efficiency of service center operations; this amount was assigned to
all applications received at the INS service centers;
$17,800,000 to improve Records Management at INS district offices;
this amount was assigned to all applications received at INS district
offices;
$26,922,000 to improve the automated application processing
infrastructure; this amount was assigned to all immigration
adjudication and naturalization applications;
$4,210,000 to enhance computer systems that provide naturalization
support; $29,866,000 to increase naturalization processing, including
additional funding for Federal Bureau of Investigation clearances,
increased funding for ceremonies and oaths, and contract support for
improved automated case management; and $1,940,000 to maintain
naturalization processing at FY 1997 levels; these amounts were
assigned directly to the N-400, Application for Naturalization; and
$1,000,000 to enhance the computer system that provides case
tracking and interview scheduling for adjustment of status
applications; and $5,804,000 for increased processing of adjustment of
status cases; these amounts were assigned directly to the Form I-485,
Application to Register Permanent Residence or Adjust Status.

D. Amount of FY 1998 Immigration Adjudication and Naturalization
Resources Assigned to Activities

The amount of immigration adjudication and naturalization resources
that were assigned to activities was determined by subtracting from the
resources base the resources immediately assignable to specific
applications or petitions and the imputed costs attributable to small
volume applications, appeals, and motions to reopen. The cost of asylum
and refugee services was assigned to each application and petition
using an allocation cost assignment method. The allocation method used
for asylum and refugee cost is discussed later in this proposed rule.

[[Page 1785]]

Assigning Immigration Adjudication and Naturalization Costs From
Resources to Activities

A. Assigning Personal Services and Benefits Costs

The single most significant resource consumed in providing
immigration adjudication and naturalization services is Personal
Services and Benefits (PS&B) costs. PS&B is composed of the salary paid
to INS employees (both permanent and temporary) to perform immigration
adjudication and naturalization services, plus the government share of
benefits accrued by INS employees. These benefits include, but are not
limited to, retirement, health insurance, life insurance, and social
security payments. For FY 1998, PS&B costs account for approximately
45% of immigration adjudication and naturalization resources ($280.5
million of the total resource base of $638.6 million).
To achieve a high level of precision in assigning resource costs to
activities, the INS assigned PS&B resource costs to the pre-defined
immigration adjudication and naturalization activities by job series.
In the Federal sector, each personnel position is identified by a job
series number and description. This job series designation defines the
duties required and the performance expected for each Federal personnel
position. Personnel assigned to each job series have differing
responsibilities in the immigration adjudication and naturalization
processes. For example, Immigration Adjudication Officers devoted more
time adjudicating applications and petitions than clerical positions;
Immigration Information Officers may spend more time responding to
inquiries than an Immigration Adjudication Officer; supervisory
personnel usually expend their time in very different patterns than
those they supervised, and so on. It was logical to assume that
attributing PS&B costs by job series would result in more precise cost
assignment than if the PS&B costs were assigned as a single cost pool.
To make PS&B resource assignments by job series, the Study Team
determined the amount of PS&B costs budgeted for each job series in FY
1998. The Study Team then determined the average percentage of time
each job series spent on the eight pre-defined immigration adjudication
and naturalization activities. The INS does not develop its budget by
job series costs; rather, each program estimates an aggregate PS&B
costs when formulating their budget. To assign PS&B costs by job
series, the budgeted FY 1998 PS&B costs had to first be assigned to
each job series based on historic obligation percentages. (Obligations
are binding agreements that will result in the expenditure of budgetary
resources, either immediately or in the future.) PS&B obligations are
incurred each time the INS pays it employees for services. Each pay
period during the fiscal year, the INS updates its Pay Database with
the current amount of PS&B that has been obligated and paid. In
simplest terms, the budget provides the spending authority and the
spending plan, the Pay Database tracks what has been spent. The INS Pay
Database tracks actual PS&B obligations by account, program, job
series, FTE, and amount. The INS Pay Database provided an excellent
source of data to determine actual PS&B obligation patterns. These
patterns, expressed as percentages, were used to dis-aggregate the FY
1998 PS&B costs from program and OMB Object Class detail to job series
detail, by amount and FTE.
Once determined, the estimated FY 1998 PS&B job series amounts were
assigned to the eight pre-defined immigration adjudication and
naturalization activities. These activities are an ABC tool and were
defined and created as a part of this Study. These activities are not
data elements for either preparing the INS budget or for tracking
obligations and expenditures in the Pay Database. Assigning PS&B job
series costs to the immigration adjudication and naturalization
activities required determining the amount, or percentage, of time
personnel in each job series spent performing the various activities.
Since no reports existed that would provide us with this information,
the Study Team developed a survey to gather this information.
A representative sample of the INS personnel in each job series
completed these surveys. The Study Team conducted extensive field
visits to gather the cycle time data to assign activity costs to
applications. To prevent bias in data collection, all sites visited
were randomly selected. During the site visits, Study Team members also
conducted interviews with representative personnel from the various job
series. The Study Team asked the persons interviewed to provide their
expert opinion on the amount of time spent performing the various pre-
defined activities. The responses were then weighted by the application
volumes of each office. Since the responses were representative
samples, a response from an office that processes a high volume of
immigration adjudication and naturalization applications and petitions
should have a correspondingly higher weight than responses from an
office that processes smaller volumes. For example, estimates of
activity time for job series 1801, Adjudication Officers, assigned to
Miami (with a total of 132,213 applications processed) was given
greater weight in the calculation than the estimate from an
Adjudication Officer assigned to Omaha (11,785 applications processed).
The final step in assigning PS&B costs required applying PS&B amounts
in each job series to the immigration adjudication and naturalization
activities based on the weighted average percent derived from the time
usage survey.

B. Assigning General Expense Costs to Activities

For the purpose of this study, General Expenses (GE) represent all
costs other than PS&B costs. The INS budgets, monitors, and reports its
GE costs by OMB Object Class Codes. OMB Object Class Codes are used
throughout the Federal government to budget and report costs by the
nature of the service or goods procured. Segregating costs by OMB
Object Class Codes provided the Fee Study Team with an excellent method
of analyzing costs by their specific nature and determining an
assignment method that is best related to how the resource costs are
consumed by activities. Some GE costs could be directly traced to a
specific immigration adjudication and naturalization activity, while
others could be assigned by a cause and effect assignment methods. When
analysis did not provide a means for either direct tracing or cause and
effect assignment, costs were assigned using an allocation method based
on the total PS&B costs assigned to each activity. (See the previous
discussion of PS&B cost assignment.)
The Fee Study Team reviewed the FY 1998 Examinations Fee Account
Budget to determine which GE items could be directly traced from the
resource base to the immigration adjudication and naturalization
activities. The following costs were assigned directly to immigration
adjudication and naturalization activities:
$3,000,000 for the cost of enhancements to fingerprint collection
and clearance process were assigned direction to the ``Adjudicate
Application'' activity;
$1,250,000 for the cost of enhancements to the Central Index
System, and $2,643,00 for the Cost of hardware and software to enhance
the records management infrastructure were assigned directly to the
``Manage Records'' activity;

[[Page 1786]]

$4,262,262 for the cost of postage were assigned directly to the
``Prepare Outgoing Correspondence'' activity;
$13,989,000 for the cost of card production were assigned directly
to the ``Issue End Product'' activity; and
$4,243,000 for the cost of improving public access to information
and forms, $2,113,000 for the cost to create, train, and support 50
positions that will specialize in improving community and customer
relations as well as train other INS service providers, and $9,500,000
for the cost of creating a single INS 1-800 telephone line that will
act as a front end to all non-enforcement related questions were
assigned directly to the ``Respond to Inquiry'' activity.
Facilities and Utilities costs were assigned to the immigration
adjudication and naturalization activities using a cause-and-effect
cost assignment method based on the amount of space used by each
activity. To determine the square footage of space by specific
activity, the Fee Study Team devised a square footage survey. The
square footage survey was conducted at all four INS service centers,
and at district offices located in Los Angeles, Phoenix, San Antonio,
Miami, Omaha, Kansas City, Philadelphia, and Boston. These district
offices were randomly selected as sites for cycle time data collection
(discussed later in this document) and were assumed to be
representative of all INS district offices. The square footage survey
was conducted by interviewing administrative officers at the various
sites, observing space usage, and reviewing site-specific floor plans.
The survey results were analyzed and converted into percentages
that were used to assign facilities and utility costs to the various
immigration adjudication and naturalization activities. The percentage
of floor space dedicated to a particular activity was weighted by
relative size of the facility. For example, at the California Service
Center, 143,338 total square feet, has ten percent of its floor space
dedicated to the ``Receive Application'' activity, whereas the
Philadelphia District Office, 41,380 total square feet, has five
percent of its floor space dedicated to the same activity. A simple
average of the two percentages ((10% + 5%)/2=7.5%) does not take into
account the relative size of the offices. When weighted by applications
processed, the resulting percent for ``Receive Application'' square
footage for all facilities surveyed was 9%.
The remainder of GE costs were assigned using an allocation method.
This method was based on the percentages derived from the PS&B labor
survey. The following is a brief discussion of the various types of GE
costs assigned to activities by cost allocation:
Costs incurred for the transportation of Government employees, and
their per diem allowances, are only authorized for payment when travel
is for missions of public service.
Costs are incurred for the freight and express transport of
government equipment, authorized movement of employees' household goods
and parcel post and express mail transportation. Historically, 87
percent of these costs are related to the transportation of employees'
property; the use of the PS&B resource assignment method was determined
to be the best assignment method.
The INS receives three types of telecommunication's bills: Federal
Telephone System local, data communications, and long-distance voice
toll calls. The General Services Administration bills these services to
the INS through the DOJ. Both the GSA and DOJ add a service charge to
the communications billing to cover their administrative costs. The
amount assigned to each INS fee account is based on the number of INS
employees budgeted to each account. Within the Examination Fee Account
the cost of communication was allocated to each activity based on the
PS&B labor survey.
Costs incurred for contractual printing by the Government Printing
Office and commercial printers were examined to determine if a
relationship could be established between this cost category and the
specific applications and petitions under review for this Study. Since
no relationship could be established, the Fee Study team used the PS&B
percentages as an equitable method for assigning these costs to the
immigration adjudication and naturalization activities.
The Fee Study Team carefully examined the amounts budgeted for OMB
Object Class 25.0, Other Services, and was able to directly trace a
significant portion of these costs to a particular immigration
adjudication and naturalization activity, application or petition, or
group of applications and petitions. These costs have been previously
discussed in this proposed rule.
All remaining costs budgeted under this OMB Object Class were
assigned using the PS&B percentages, a consistent and equitable cost
assignment method.
Supplies and materials are costs for consumable commodities that
are ordinarily used within one year of purchase. Supplies and Materials
include office supplies, ADP supplies, and miscellaneous supplies and
materials. While examining the underlying accounting records related to
supply and material resources consumed, the Fee Study Team determined
that these costs were not directly traceable to the applications under
review for this Study. As a result, use of PS&B percentages was used as
a reasonable and consistent cost assignment method for this cost
category.
Equipment costs include the purchase of property that is normally
expected to have a period of service of a year or more. While examining
the underlying accounting records related to the purchase of equipment,
the Fee Study Team determined that the purchase of most equipment,
particularly computer hardware, provides a benefit for all application
and petitions. However, certain equipment purchases were directly
traceable to specific activities or applications and petitions, and
have been discussed previously.
Once PS&B and GE costs were assigned to activities, the ABC
methodology dictates that the activity cost should then be assigned to
the cost objects. (For purposes of this Fee Study, the cost objects are
the immigration adjudication and naturalization applications and
petitions for which the INS charges a fee.) The cost assignment method
used to ``drive'' activity costs to the immigration adjudication and
naturalization applications and petitions was cycle times. The
following sections discuss the cycle times and the data gathering
necessary for their development.

Cycle Time Development

As stated previously, ABC uses a two-step cost assignment process.
Costs are first assigned from resource pools to activities, and then
activity costs are assigned to cost objects. (For the purposes of this
Study, the activities are those defined in the APM that were discussed
previously in this proposed rule, and the cost objects are the various
immigration adjudication and naturalization applications and petitions
for which the INS charges a fee.) The Fee Study Team used cycle times
as a cause-and-effect assignment method to distribute activity costs to
the various immigration adjudication and naturalization applications
and petitions. Cycle times measure the frequency and intensity of the
consumption of activity costs by the various immigration adjudication
and naturalization applications and petitions. Cycle times are the
``drivers'' that assign activity costs to the various applications and
petitions. The cycle

[[Page 1787]]

time measures the amount of time needed to complete each activity in
the processing of the various immigration adjudication and
naturalization applications and petitions. Developing cycle times that
accurately reflected application and petition processing times involved
the following: developing a statistically-valid sampling plan, the
random selection of a representative sample of INS offices from which
to collect cycle time data, the development of data collection
procedures to control sampling bias, the actual collection of cycle
time data, the review and analysis of the cycle time data collected,
and the use of the cycle time data to assign activity costs to the
immigration adjudication and naturalization applications and petitions
for which the INS charges a fee.

A. Developing the Statistical Sampling Plan

To ensure the representativeness, accuracy, and defensibility of
the cycle times used in activity cost assignments, the data collected
during this effort had to be randomly selected and unbiased. The Fee
Study Team devised a statistical sampling plan for cycle time data
collection that ensured the integrity of the data, standardized data
collection procedures, and eliminated bias in data collection. The
statistical plan outlined the Team's methodology for determining the
sampling method, clustering, selecting sites and applications to be
observed, assigning the number of observations, controlling for sample
bias, and making adjustments.
Sample Size. Statistical sampling assumes that a representative
sample of a population has the same characteristics of the population
as a whole. A statistical sampling plan must include a sample size that
ensures that the samples observed do, indeed, reflect the
characteristics of the total population. Several factors influence the
size of the sample: the desired confidence level, the size of the
population samples, the expected rate of data collection (or the ``miss
rate''), and the number of activities observed.
Confidence Interval. By using a statistical formula with a 95%
confidence interval, the Fee Study Team determined that 200
observations were necessary for each of the common and unique
activities. Establishing a level of precision or a confidence interval
of 95% ensures confidence that the data collection was both
representative and statistically significant. This level of confidence
was selected for its high reliability, accuracy, and acceptability in
organizational research. Selecting a confidence interval of 95% places
a high level of confidence in the results, provides the precision of
measurement necessary for extrapolating the results, and is sufficient
in cases of legal defensibility. The INS sampling plan guarantees that
the number of required cycle times for the Fee Study is statistically
correct.
Population Size. For this Study, the statistical sample included
all applications and petitions with FY 1995 completed volumes of
greater than 10,000, as reported in the Performance Analysis System
(PAS). (The PAS is a management and work load measurement system that
records application volumes and associated work hours.) The Fee Study
Team used FY 1995 PAS data, the most recent complete year of data
available during the conduct of the Fee Study. The applications and
petitions with a volume of 10,000 annually represent 99.5% of all
applications and petitions processed by the INS, and were the focus of
the on-site observations for cycle time data gathering. For the most
part, the Study did not include applications with a volume of less than
10,000 completions because of the low probability of actually observing
cycle times in statistically sufficient numbers for these applications.
Also, these applications account for less than 1% of the total revenue
deposited into the Examinations Fee Account each year. The Fee Study
Team developed alternate methods to determine cycle times for the
unobserved applications and petitions. Methods used to develop cycle
times for the lower volume applications included the use of expert
opinion to determine when to apply observed cycle times to similarly
processed applications and petitions that were not observed, and the
use of experts to provide estimated cycle times for the lower volume
applications. Figure 3 lists the applications observed in the cycle
time data gathering phase of the fee study.

Figure 3.--List of the Applications and Petitions Observed
------------------------------------------------------------------------

------------------------------------------------------------------------
I-90.............................. Application to Replace Alien
Registration Card.
I-102............................. Application for Replacement/Initial
Nonimmigrant Arrival/Departure
Document.
I-129 ^{1........................... Petition for Nonimmigrant Worker/
Classify Nonimmigrant as Temporary
Worker or Trainee/Employ
Intracompany Transferee.
I-129F............................ Petition for Alien Fiance(e).
I-130............................. Petition for Alien Relative.
I-131 ^{2........................... Application for Travel Document.
I-140............................. Immigrant Petition for Alien Worker.
I-485............................. Application to Register Permanent
Residence or Adjust Status.
I-539............................. Application to Extend/Change
Nonimmigrant Status.
I-600 ^{3........................... Petition to Classify Orphan as an
Immediate Relative/Application for
Advance Processing or Orphan
Petition.
I-724 ^{4........................... Waiver Forms.
I-751............................. Petition to Remove the Conditions on
Residence.
I-765............................. Application for Employment
Authorization.
I-817............................. Application for Voluntary Departure
under the Family Unity Program.
I-824............................. Application for Action on an
Approved Application or Petition.
N-400............................. Application for Naturalization.
N-565............................. Application for Replacement
Naturalization/Citizenship
Document.
N-600............................. Application for Certification of
Citizenship.
N-643 ^{5........................... Application for Certificate of
Citizenship in Behalf of an Adopted
Child.
------------------------------------------------------------------------
\1\ The I-129 includes the I-129, I-129H, and I-129L.
\2\ The I-131 includes the Reentry Permit and Advanced Parole.
\3\ The I-600 includes the I-600A.
\4\ The I-724 includes all six of the Waiver Forms--I-191, I-192, I-193,
I-212, I-601, and I-612.
\5\ N-643 fell below the 10,000 volume limit for population size;
however, during our visit to the Buffalo District Office sufficient N-
643 applications were available for sampling.

``Miss'' Rate. The Fee Study Team allowed for the possibility of
data collection ``misses'' in the statistical sampling plan and ``built
in'' additional observations above the 200 needed for a 95% confidence
level to guarantee that a statistically valid sample size would be
obtained. Data collection ``misses'' constitute possible observations
discarded as a result of inconsistencies in recording cycle times,
incomplete observations due to faulty equipment or interruptions that
caused the timer to halt an observation, and the possibility that
applications and petitions scheduled to be timed may not have been
available in sufficient numbers at the planned site visits. The Fee
Study Team recognized that at any scheduled site the number of
applications and petitions available for processing may not match the
number anticipated in the statistical sample plan. This could happen
for a number of reasons, such as applicants failing to appear for
scheduled interviews, applications and petitions not being filed in the
numbers anticipated while the Fee Study Team

[[Page 1788]]

was on-site, or the actual applications available for processing during
site visits varied from the applications reported as available during
the time when the sample plan was developed. (The Fee Study Team
observed applications and petitions that were available and scheduled
for processing while on-site; they did not interrupt the normal work
flow at the various INS district offices or service centers.) Each
application had a reserved ``miss'' rate based on the volume of
applications required for the statistical sample; the higher the
application volume, the lower the assigned ``miss'' rate. Increasing
the lower volume of application sample sizes to hedge for ``misses''
was necessary to ensure that adequate sample sizes would be collected.
Common and Unique Activities. The Fee Study Team divided the sample
into two categories based on the APM: common activities and unique
activities. Common activities are those activities that are completed
in the same amount of time regardless of the type of application or
petition. For example, the amount of time required to open an envelope
containing an application or petition is basically the same for all
application and petition types; the amount of time to record a fee is
the same regardless of form type, and the time required to request a
file is similar for all applications and petitions. Regardless of the
type of application or petition, the time to perform an activity or
task is similar. With unique activities, the processing time is
directly linked to the type of application or petition filed. For
example, adjudication of each type of application and petition is based
on specific sections in the INA, and requires specific documentation
and adjudicative review. This, logically, makes the ``Adjudicate
Application'' activity unique depending on the type of application or
petition observed. Some applications require the production of a
certificate or card that identifies the bearer as eligible for a
specific benefit (such as Form I-766, Employment Authorization
Document, or a N-550, Certificate of Naturalization). The time to
produce an ``End Product'' is unique to the type of card or certificate
created. Of the eight immigration adjudication and naturalization
activities, six were designated as ``common'' and two as ``unique.''
The six common activities are: Receive Application/Petition, Record
Fee, Input Application Data, Manage Records, Prepare Outgoing
Correspondence, and Respond to Inquiry. The two unique activities are:
Adjudicate Application and Issue End Product.
The designation of ``common'' or ``unique'' had a direct bearing on
the sample size. As stated earlier, each activity required a sample
size of 200 for a 95% confidence level. For each common activity, the
total sample size which includes all applications and petitions was
200. For unique activities, the total sample size was 200 for each type
of application and petition observed. Since the Fee Study Team observed
18 application and petition types, the sample size for the two unique
activities, Adjudicate Application, and Issue End Product, was much
larger. For the ``Adjudicate Application'' activity, the sample size
was 3,600 (the 18 observed applications and petitions times 200). For
the ``Issue End Product'' activity, the sample size was 1,400 (the
seven applications or petition types that require an end product
multiplied times 200).

B. Site Selection

Clustering. Determining which sites to visit for data collection
was based on clustering. Clustering, the grouping of similar items, is
a widely accepted technique used to achieve the most representative
sample of a population (total set of items to analyze). For this study,
INS offices of comparable size were grouped together into four clusters
based on operating environments and the volume of applications and
petitions processed: service centers, large district offices, medium
district offices, and small district offices. The large district office
cluster included those offices with a processed volume of more than
50,000 applications annually, the medium district office cluster
included offices that processed more than 20,000 applications annually,
but less than 50,000, and the small district office cluster included
offices that processed less than 20,000 applications annually. After
determining the four cluster groups, the Fee Study Team randomly
selected 15% of the offices within each cluster to visit for data
collection. Selecting 15% of offices within each cluster ensured that
the data gathered from the sites were representative of the different
size offices. The 15% selection rate is commonly accepted in
statistical sampling for selecting samples within a cluster, and helped
insure that a representative sample of office sizes was selected for
data gathering. Without clustering, the possibility existed that large,
medium, or small size district offices could have been overly
represented in the number of offices chosen. This may have skewed the
sample and increased the potential for cycle time biases. The
combination of clustering and randomly selecting 15% of each cluster
also served to reduce the cost and time of gathering data when sampling
a large and widely dispersed population.
Selecting 15% of offices within each cluster resulted in the random
selection of two sites from the large district office cluster, three
sites from the medium district office cluster, and two sites from the
small district office cluster. The sites selected included: Miami and
Los Angeles as large district offices; Honolulu, San Antonio, and
Phoenix as medium district offices; and Kansas City and Omaha as small
district offices.
Adjustments to the Site Selections. The site selections were
adjusted for various reasons: cost considerations, geographical
representation, or insufficient data collection as the site visits
proceeded. After reviewing the geographical dispersion of the original
sites selected, the Fee Study Team determined that district offices
located in the northeastern United States were not represented, even
though a large number of immigration adjudication and naturalization
applications and petitions are received and processed by offices
located in the northeast. To ensure geographical representation, an
additional office was randomly selected from a pool of district offices
located in the northeastern United States. The Boston District Office
was randomly selected through this process. The Honolulu District
Office was removed from the site selection list due to cost and time
constraints involved in visiting that office. From the pool of offices
remaining in the medium district office cluster, the Fee Study Team
randomly selected the Philadelphia District Office to replace the
Honolulu District Office. The Baltimore District Office was added to
the medium district office list to observe its use of CLAIMS. The
Baltimore District Office is piloting CLAIMS at the district office
level. At the conclusion of the site visits, the Fee Study Team
discovered that they had observed an unacceptably low number of the
Form N-565, Application for a Naturalization or Citizenship Paper, and
the Form N-600, Application for Certification of Citizenship. To bring
the sample size to acceptable levels, the Buffalo District Office was
visited to collect additional data on these applications. The Buffalo
District Office was chosen for the Form N-565 and Form N-600 data
collection because they had these forms available in sufficient numbers
for observation. Visiting the Buffalo District Office also afforded the
Fee Study Team the opportunity to visit the Toronto, Canada

[[Page 1789]]

pre-inspection site to observe processing of the Form I-192,
Application for Advanced Permission to Enter as Nonimmigrant. This
additional visit was required because the planned site visits did not
encompass a field office with an available supply of this waiver form
for the Fee Study Team to observe and time. Toronto is the predominant
INS office for processing the Form I-192 and sufficient numbers of
these forms were available for observation to develop a statistically
sound sample size.
Service Center Site Visit Selection. Service centers were clustered
separately. Since service centers process high volumes of applications,
their operating procedures were very different from district offices.
In addition, service centers usually process applications that do not
require an interview and are not usually processed in district offices.
The INS has four service centers; only one service center had to be
visited to satisfy the 15% representation rule. The Nebraska Service
Center, unlike the district offices visited, was not randomly selected
for a site visit. The Fee Study Team decided to select the Nebraska
Service Center since the Nebraska Service Center was the only service
center that processed all types of applications, including the Form I-
131, Application for Travel Document. To ensure that there was no bias
in the data due to possible differences in operating procedures in the
various service centers, the Fee Study Team decided to visit the other
three service centers to collect a pro-rata share of common activity
observations and a limited number of unique observations for specific
applications and petitions.
Site-Specific Sampling Plans. After determining the number of
observations needed for each of the common and unique activities and
determining the sites to visit, observations were divided by activity
among the field sites. This process required distributing the number of
observations needed among the selected sites based on the volume of
each application and petition processed at each selected site. This was
accomplished by establishing a ratio of the processing volume for each
selected site using the FY 1995 PAS data. As field office data
collection progressed, the sampling plan was adjusted, as necessary, to
ensure adequate data collection. If the required number of applications
and petitions were not available at a planned site visit, the shortage
was pro-rated to the future site visit sampling plans. For example,
prior to the Miami District Office site visit, the sampling plan was
adjusted to increase the number of planned observations of the N-565,
Application for Replacement Naturalization Citizenship Document and
Form N-600, Application for Certification of Citizenship, to reflect
the shortage of data collection for those forms at other sites. The
site specific sampling plans are available for public inspection.
Please refer to the FOR FURTHER INFORMATION CONTACT section for
instruction on obtaining this information.

C. Controlling Sampling Bias

The Study Team took precautions to ensure that all data collectors
maintained a high level of consistency and accuracy when gathering
cycle time data. This was achieved through standard operating
procedures, training, uniform timing equipment, and the random
selection of applications and personnel observed at each site.
Training. To ensure consistency in data collection, the Fee Study
Team developed standard operating procedures for data collection and
provided training on cycle time data collection procedures. All data
collectors were required to attend the training, which was conducted by
contracted statistical sampling specialists. Participants received
instructions on standard procedures for measuring and recording data,
including an overview of how to control response and observation
biases. To reduce the response bias, the training provided the data
collectors with guidelines on how to interact with personnel being
timed, their role as a data collector, and the purpose of the
observations. Data collection bias was also reduced through the use of
uniform and consistent measuring equipment and a uniform recording
medium (optical scan forms). Data collectors were also trained on the
use of the Activity/Task Definition Report to identify the specific
activities/tasks being timed and standard start and stop points for
each observation. Procedures were also developed to help data
collectors identify anomalies that may compromise an observation, such
as interruption in the work flow, and how to manage such situations.
Selection of Observed Employees. The personnel observed at site
were selected randomly. All site personnel had an equal chance for
selection, regardless of their work experience. The Fee Study Team
randomly selected employees to be observed using a list of employees
provided by site management and a random number table to select
employees from the list. Participation by site personnel was voluntary
and no identifying information on the personnel observed, other than
length of experience, was placed on the optical scan form. This
procedure helped reduce any bias on the part of the personnel observed.
Selection of Observed Applications/Petitions. The Fee Study Team
recorded observations at the randomly selected sites, with any
application or petition having an equal chance of being observed.
Applications and petitions are processed at INS offices in a first-
come, first-served manner. That order was preserved for the Fee Study
observations. Applications or petitions were observed in the order they
were received at the various offices visited. Individual applications
or petitions were not reviewed by any INS official or Fee Study Team
member to determine whether they would or would not be observed.
Recording Data. To standardize cycle time data collection, the Fee
Study Team developed an optical scan form that lists the activities and
tasks of the APM and provides areas for the data collectors to record
the Activity/Task Observed, Decision, Application type, Number of
Employees Observed, Batch Size, Time, Employee Experience, Date,
Location, and Timer Code. The Activity/Task Definition Report was
extremely important to obtain consistent and accurate cycle times. The
definitions provided the timers with the information required to ensure
that the data collectors placed their observations under the proper
activity/tasks.

D. Collection of Cycle Time Data

From June to September 1996, the Fee Study Team collected data at
the district offices and services centers selected for cycle time data
gathering. During this period, the Fee Study Team made over 50,000
observations of the various tasks and activities involved in processing
immigration adjudication and naturalization applications and petitions.
The data was collected by office, common and unique activities, and
application and/or petitions observed. Detailed information on cycle
time data gathering is available upon request. Please refer to the FOR
FURTHER INFORMATION CONTACT section of this proposed rule for
instructions on how to obtain this information.

E. Data Normalization and Weighting

After collecting and recording the data on optical scan forms, the
Fee Study Team developed cycle times for each type of application and
petition observed. The Fee Study Team constructed an analysis process
for computing the specific time required to process each application
through the

[[Page 1790]]

normalization of data at the task level and compiled these tasks into a
cycle time at the activity level. (As stated earlier, each activity
consists of various numbers of sub-component tasks.) For each task
observed, the Fee Study Team developed an average time. This normalized
data was used to develop activity cycle times for each of the eight
activities. When appropriate, each task was weighted by the rate of
denials, approvals, requests for additional evidence (RFAE), and, for
applications that could be processed at either a district office or
service center, a percent weight based on volumes processed at each
type of office.
The Fee Study Team reviewed all optical scan forms entered into the
computer database. Data anomalies were resolved and discrepancies
clarified according to pre-defined procedures. For example, if a data
collector recorded the time in numerals in the ``Time'' section of the
optical scan form, but they did not darken the corresponding ovals for
the optical scanner to read, the written time had to be recorded in the
database. Other types of anomalies included the data collector failing
to record batch size, which resulted in an aggregate time from several
applications read as a single time, or a data collector darkening two
ovals from one observation. Each identified anomaly was researched by
interviewing the data collector. For those anomalies that were
unsatisfactorily resolved, that scan form and all corresponding data
were eliminated from the database. Less than 1% of the total 5,000 scan
forms were voided.
The optical scan form also contained a section for written comments
that had to be reviewed to determine their impact on the data. For
example, a data collector often recorded on a single scan form several
tasks that were performed concurrently. The data collector would
provide a breakdown of each task and its respective time in the written
comments section of the optical scan form. These types of observations
had to be reviewed and added to the data base.
The Fee Study Team also performed an ``outlier'' analysis. All
cycle times were plotted to uncover the outlier(s). An outlier was an
observation that fell outside two standard deviations from the average
of all observations for a particular task. When an outlier was
identified, the observation had to be analyzed to determine if the
timing pattern was reasonable. Usually, the original data collector was
contacted, if possible, to determine the reasonableness of the
observation and timing pattern. Often, human error was not the cause of
an outlier; rather the outlier was usually an exceptionally complicated
or difficult case that resulted in an activity or task taking longer
than the average time. For example, interview times often varied
depending on the applicant's language ability, the complexity of the
application, and/or the questions regarding the materials submitted
with the application. An outlier may be the result of an observation of
a particularly long interview. Most outliers were valid observations
and remained in the database. Occasionally, cycle time formulas were
developed to help determine the average time for specific activities
because some cycle times needed additional calculations to get a
complete cycle time for a task. For example, the creation of the alien
registration receipt form (``Issue End Product'' activity) for the Form
I-90, Application to Replace Alien Registration Card, Form I-485,
Application to Register Permanent Residence or Adjust Status, and Form
I-751, Petition to Remove the Conditions on Residence, requires that
the process begin at the district offices with taking fingerprints and
collecting photos. The process is finalized at the Immigration Card
Facility with the photo scanning step, etc., and the actual production
of the card. These three steps were timed separately and added to
produce a single task time.
After valid task times were produced through the normalization
process, these task times were grouped by activity to create an overall
activity cycle time. Just as data normalization was performed at the
task level, data analysis occurred at the activity level. The Study
Team designed a three-step method of computation to ensure that each
piece of data was fairly represented and carried the observation weight
through the analysis process to the final time determination. Special
protocol for recording and developing the cycle times for the approval,
denial, and RFAE data were established. Percentages for application
specific denial, approval, and RFAEs were accumulated at the service
centers and district offices and then incorporated into the respective
activity cycle times. For example, the percentage of applications that
require additional information was calculated into the cycle time.
Processing for incomplete applications had to be accounted for since
the set of tasks and thus the time to complete these tasks differed
from an approved or denied application. The same weighting process
occurred for the approval and denial rate of the various applications
and petitions. Since the time to process an application is different
depending on the adjudicative decision, the approval and denial rates
for each application or petition type was obtained and weighted to
determine the final cycle time. This is important because both approval
and denial rates are associated with different tasks. Approved
applications may require the issuance of a card or certificate, while
denied applications require a letter stating the reason for the denial.
These processing differences were accounted for by weighting various
activities and tasks.
Applications such as the Form I-751, Form I-90, and Form I-131,
Application for Travel Document, are processed at both the service
centers and district offices. Observations were collected at both
service centers and district offices and weighted accordingly to
calculate activity cycle times that represented the dual processing of
these applications. For example, approximately 36% of the Forms I-751
filed require interviews that are conducted at district offices.
Specific task average times to conduct an interview were weighted by
36% and then added to the other tasks in the timing pattern to get a
complete cycle time for adjudicating a Form I-751. Likewise, the Form
I-90 had dual processing in the service center and district office.
Approximately 4% of the tasks involved with adjudicating a Form I-90
take place at a district office and the remaining 96% of the tasks take
place at the service center. These percentages were weighted with
average cycle times for the corresponding tasks and then combined to
develop the complete cycle time for that activity.
Weighting also occurred with the ``common'' activity of ``Manage
Records.'' Although the ``Manage Records'' activity was determined to
be a common activity, application-specific cycle times were developed
by weighting the tasks of the ``Manage Records'' activity. For example,
the creation of an alien file (A-file) varies according to the
application or petition file. Since not all applications result in an
A-file creation, this task had to be weighted to produce an application
or petition-specific cycle time.
Cycle times for the unique activities for applications that were
not observed as a result of low volume and lack of opportunity to
observe were developed in two ways: (1) Using average observed timings
of similarly processed applications or (2) using expert opinion. The
Fee Study Team used the average cycle time of producing a
naturalization certificate for the ``Issue End Product'' activity for
the Form N-643, Application for Certificate of

[[Page 1791]]

Citizenship in Behalf of an Adopted Child, since the Team was unable to
observe the creation of a naturalization certificate for that form. The
Fee Study Team did, however, observe the actual adjudication of a
representative sample of the Form N-643; the cycle time for
``Adjudicate Application'' for the Form N-643 is based on those
observations. Cycle times for the Form I-17, Petition for Approval of
School for Attendance by Nonimmigrant Students, Form I-526, Immigrant
Petition by Alien Entrepreneur, and Form I-829, Petition by
Entrepreneur to Remove Conditions (applications and petitions processed
at volumes too low to qualify for statistical sampling) were based on
expert opinion of INS subject matter experts from both the field and
headquarters who contributed their knowledge of application processing
to develop cycle times for these applications.
The cycle times that resulted from the data gathering and data
normalization stages of the Fee Study were used as the activity
``drivers'' to assign costs from activities to cost objects. Detailed
information on the cycle time development process is available from the
INS upon request. Please refer to the ``For Further Information
Contract'' section of this proposed rule for instructions on obtaining
this information.

Determining Application and Petition Volumes

The Service estimated FY 1998 application and petition volumes by
performing regression analysis on five years of actual receipt data
obtained from the PAS data base. As stated earlier, the PAS is an INS
system that provides operational statistics for a broad range of
services, including the numbers of immigration adjudication and
naturalization applications and petitions received and processed. The
INS'' Workload Projection Group reviews immigration and naturalization
application and petition volume projections and will adjust them,
either upward or downward, when it is determined that legislative
changes, policy decisions, operational changes, or other factors would
significantly affect the number of immigration adjudication and
naturalization applications and petitions filed. The FY 1998 projected
volumes for the applications and petitions that were reviewed during
the Fee Study are presented in Figure 4.

Figure 4.--Projected FY 1998 Application/Petition Volumes and Waiver Percentages
----------------------------------------------------------------------------------------------------------------
Projected
Form No. Description FY 1998 Waiver Fee-waived Fee-paying
volume percentage volume volume
----------------------------------------------------------------------------------------------------------------
I-17................................ Petition for Approval 800 20% 160 640
of School Attendance
by Non-immigrant
Student.
I-90................................ Application to Replace 275,500 5% 13,775 261,725
Alien Registration
Card.
I-102............................... Application for 8,000 0% 0 8,000
Replacement/Initial
Nonimmigrant Arrival/
Departure Document.
I-129/I-129H/I-129L................. Petitions for 253,500 15% 38,025 215,475
Nonimmigrant Worker.
I-129F.............................. Petition for Alien 109,000 0% 0 109,000
Fiance(e).
I-130............................... Petition for Alien 657,000 0% 0 657,000
Relative.
I-131............................... Application for Travel 365,000 0% 0 365,000
Document.
I-140............................... Immigrant Petition for 56,000 0% 0 56,000
Alien Worker.
I-485............................... Application to 423,930 0% 0 423,930
Register Permanent
Residence or Adjust
Status.
I-526............................... Immigrant Petition by 500 0% 0 500
Alien Entrepreneur.
I-539............................... Application to Extend/ 206,9001 10% 20,690 186,210
Change Nonimmigrant
Status.
I-600/I-600A........................ Petition to Classify 14,000 0% 0 14,000
Orphan as an
Immediate Relative/
Application for
Advance Processing or
Orphan Petition.
I-724............................... Waiver Applications 27,000 2% 540 26,460
\1\.
I-751............................... Petition to Remove the 130,000 0% 0 130,000
Conditions on
Residence.
I-765............................... Application for 972,000 50% 486,000 486,000
Employment
Authorization.
I-817............................... Application for 22,000 0% 0 22,000
Voluntary Departure
under the Family
Unity Program.
I-824............................... Application for Action 44,000 0% 0 44,000
on an Approved
Application or
Petition.
I-829............................... Petition by 403 0% 0 403
Entrepreneur to
Remove Conditions.
N-400............................... Application for 1,306,900 17% 222,173 1,084,727
Naturalization.
N-565............................... Application for 16,700 0% 0 16,700
Replacement of
Naturalization/
Citizenship Document.
N-600............................... Application for 32,700 0% 0 32,700
Certification of
Citizenship.
N-643............................... Application for 7,400 0% 0 7,400
Certification of
Citizenship in Behalf
of an Adopted Child.
----------------------------------------------------------------------------------------------------------------
\1\ Waiver Applications include the Forms I-191, Application for Advance Permission to Return to Unrelinquished
Domicile; I-192, Application for Advance Permission to Enter as a Non-immigrant; I-193, Application for Waiver
of Passport and/or Visa; I-212, Application to Reapply for Admission into the U.S. After Deportation; I-601,
Application for Waiver on Grounds of Excludability; and I-612, Application for Waiver of the Foreign Residence
Requirement.

Assigning Activity Costs to Immigration Adjudication and
Naturalization Applications and Petitions

The cycle times for each activity were converted to percentages to
assign activity costs to the various applications and/or petitions that
consume the resources of that activity. Cycle time assignment
percentages were calculated for each activity. The assignment
percentages were applied to total activity costs to determine an
application or petition's pro-rata share of the activity cost. Each
application or petition could have up to eight different activity
costs. Each application or petition's pro-rata share of the activity
cost was then divided by its anticipated FY 1998 volume to arrive at a
per application or petition activity cost. The activity cost for each
application or petition was totaled, along with any application-
specific cost assigned directly, to arrive at the total processing cost
for each application or petition. Figure 5 displays the processing
costs for each application and petition by activity. In order to arrive

[[Page 1792]]

at a final fee amount, however, an amount to recover fee waiver and
exempt costs, and the asylum and refugee surcharge must be added to the
application and petition processing costs.

Figure 5.--Immigration Adjudication and Naturalization Application and Petition Processing Costs Application Process Model
--------------------------------------------------------------------------------------------------------------------------------------------------------
Activity costs
-------------------------------------------------------------------------------------------------------- Unit
Form No. Input Prepare Issue Respond Application processing
Receive Record application Manage Adjudicate outgoing end to specific cost
application fee data records application correction product inquiry costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
I-17................................ $1.91 $1.09 $3.52 $10.37 $99.60 $6.60 $0.00 $10.43 $9.61 $143.13
I-90................................ 1.94 1.30 3.55 10.83 22.68 6.88 5.58 10.59 16.13 79.48
I-102............................... 1.91 1.37 3.52 10.03 12.87 6.60 0.00 10.43 16.01 62.74
I-129............................... 1.94 1.15 3.55 9.76 26.08 8.31 0.00 10.59 16.11 77.49
I-129F.............................. 1.91 1.36 3.49 19.85 9.96 7.89 0.00 10.43 12.56 67.45
I-130............................... 1.94 1.37 3.55 10.50 27.79 6.88 0.00 10.59 16.13 78.75
I-131............................... 1.94 1.37 3.55 9.33 10.13 6.88 8.12 10.59 16.07 67.98
I-140............................... 1.94 1.37 3.55 10.64 29.92 7.08 0.00 10.59 16.78 81.87
I-485............................... 1.94 1.37 3.55 21.28 58.79 12.49 5.58 10.59 43.15 158.74
I-526............................... 1.91 1.36 3.49 10.45 200.36 6.55 0.00 10.43 16.06 250.61
I-539............................... 1.91 1.24 3.52 9.46 36.75 6.60 0.00 10.43 16.31 86.22
I-600/I-600A........................ 19.18 3.50 0.98 13.76 69.88 59.86 5.55 98.26 20.58 291.55
I-724 \1\........................... 1.91 1.34 3.52 9.19 55.98 11.90 0.00 10.43 27.00 121.27
I-751............................... 1.94 1.37 2.69 16.39 28.93 6.88 5.55 10.59 16.31 90.65
I-765............................... 1.94 0.68 3.55 10.19 12.13 6.88 11.76 10.59 16.07 73.79
I-817............................... 2.54 1.36 4.57 9.63 13.98 3.61 13.04 10.43 27.00 86.16
I-824............................... 1.91 1.37 3.52 9.74 18.40 11.90 0.00 10.43 27.80 85.07
I-829............................... 1.91 1.36 2.65 10.68 200.36 6.55 0.00 10.43 16.03 249.97
N-400............................... 1.94 1.16 3.55 16.96 47.08 12.51 15.44 10.59 54.59 163.82
N-565............................... 1.91 1.37 3.52 11.10 32.83 6.60 13.23 10.43 16.02 97.01
N-600............................... 1.91 1.37 3.52 11.58 49.99 7.95 13.23 10.43 16.66 116.64
N-643............................... 1.91 1.37 3.52 10.33 12.51 7.95 23.93 10.43 18.90 90.85
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Waiver Forms Include: I-191, Application for Advance Permission to Return to Unrelinquished Domicile; I-192, Application for Advance Permission to
Enter as a Nonimmigrant; I-193, Application for Waiver of Passport and/or Visa; I-212, Application to Reapply for Admission into the U.S. After
Deportation; I-601, Application for Waiver on Grounds of Excludability; and I-612, Application for Waiver of the Foreign Residence Requirement.

Waiver/Exempt Costs and the Asylum and Refugee (International
Affairs) Surcharge

The final step in calculating the immigration adjudication and
naturalization fees is to add amounts to recover waiver/exempt costs,
and the surcharge to recover the cost of asylum and refugee services
funded by the Examinations Fee Account. For purposes of this document,
the surcharge that recovers the cost of the International Affairs
program is known as the asylum and refugee surcharge. As stated earlier
in this proposed rule, P.L. 101-515 authorizes the INS to set the
immigration adjudication and naturalization fees at a level that will
recover the costs of providing all immigration adjudication and
naturalization services ``including the costs of similar services
provided without charge to asylum applicants or other immigrants.'' (8
U.S.C. 1356(m)) The INS adds a surcharge to its immigration
adjudication and naturalization fees to recover the cost of providing
asylum and refugee services, and adds an additional amount to each fee
to recover the cost of application and petitions that the INS processes
at no charge, either through exempting certain classes of applicants
from paying a fee or waiving the fee for those applicants for whom
paying the fee would constitute a financial hardship.
Previously, the INS had assigned waiver/exempt costs and the asylum
and refugee surcharge as a flat ``per application'' amount. While this
method produced a single surcharge amount, the total percent of the
surcharge to each fee type varied greatly. For example, as a result of
the last fee adjustment in July 1994, the asylum and refugee surcharge
was determined to be $9.00 per application. This $9.00 surcharge
represented an assessment of 10% for an application costing $90.00, but
it was an assessment of nearly 30% for an application costing $30.00.
Audits of the INS fee setting methodology had been critical of this
method of assigning the surcharge and other costs. The auditors felt
that a more equitable method for assigning these amounts would be to
base them on the relationship of the cost of the various applications
and petitions. To prevent the disparity in the percentage of an
application's or petition's fee that was attributable to the surcharge
and waiver/exempt amount, the INS now assesses it waiver/exempt costs
and surcharge as a flat percentage of each application's or petition's
processing costs. While the amount of the waiver/exempt cost and
surcharge will vary between fee types, the percentage of cost is
constant.
The Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA) states that ``asylum cannot be granted until the identity
of the applicant has been checked against all appropriate records or
databases maintained by the Attorney General and by the Secretary of
State. . .'' (INA, section 208(d)(5)(A)(I)) Under this provision,
fingerprint checks will have to be completed prior to approving any
asylum application. This requirement was not effective during the fee
study, and is not reflected in the asylum and refugee surcharge. This
requirement may result in additional resource requirements for the
International Affairs program and an increase in the asylum and refugee
surcharge amount to recover these resources.
The INS specifically solicits comments on whether a flat rate or

[[Page 1793]]

percentage should be used to assign waiver costs.

A. Waiver/Exempt Costs

The INS provides the initial Form I-765, Application for Employment
Authorization, at no charge to persons granted asylum or refugee
status, or when the INS cannot adjudicate an asylum or refugee
application within 180 days of filing. For FY 1998, the INS estimates
that approximately 50% of the Form I-765 applications will be processed
at no charge to applicants, at a total cost of $35.9 million. In
addition, persons filing certain applications or petitions may apply
for a waiver of the fee when paying the fee would constitute a
financial hardship. For FY 1998, the INS estimates that it will incur
costs of approximately $42.3 million to process applications and
petitions for which the fee has been waived. As stated previously, the
revenue generated from the immigration adjudication and naturalization
fees is the sole source of funding for these services. The INS does not
receive appropriated funds (tax dollars) to provide these services. As
a result, the fees must be set at a level that will recover the full
cost of processing immigration adjudication and naturalization
applications and petitions, including those applications and petitions
for which the fees have been waived. The waiver/exempt costs were
assessed to the various application and petition types in relation to
the total cost assigned to each application/ petition type; this amount
was then divided by the estimated fee-paying volume of for each
application/petition type to determine the per application/petition
amount.
The INS is currently evaluating under what conditions a waiver of
the fee should be granted. The INS specifically seeks comments on
setting standards for application fee waivers.

B. Asylum and Refugee Surcharge

As noted previously, Congress has directed the INS to set its fees
at a level that will generate sufficient revenue to fund the processing
of asylum and refugee applications. Within the INS, the International
Affairs program administers the adjudication of asylum and refugee
applications. Approximately 15% of the total immigration adjudication
and naturalization resource base funds asylum and refugee adjudications
administered by the INS' International Affairs program. This amount is
recovered through the fees by adding a surcharge to the immigration
adjudication and naturalization fees. This surcharge is calculated
similar to the assignment of waiver/exempt costs. The total amount of
the International Affairs program is assigned to each application/
petition type in the same ratio as their total processing costs. The
amount assigned to each application/petition type is then divided by
the total volume of applications/petitions expected to be received for
the application/petition type to arrive at a per application/petition
surcharge amount.

Proposed Fee Adjustments

The INS is proposing to increase 30 fees on the Examinations Fee
Account fee schedule. The INS must adjust its fee schedule due to the
increased costs experienced since the last fee adjustment in July 1994,
which was based on resource requirements of $331 million. The INS
estimates resource requirements in FY 1998 of $638.6 million for the
processing of immigration adjudication and naturalization applications
and petitions. Revenue projections for FY 1998, based on the current
fee schedule and an estimated fee-paying volume of 4.3 million
applications, are only $368.4 million. Increases in fees are necessary
to generate sufficient revenue to ensure that funds are available to
continue providing services to customers.
The INS performed a thorough review of its immigration adjudication
and naturalization resources and activities, and the relationship of
these resources and activities to the various applications and
petitions for which a fee is charged. The resources were assigned to
applications and petitions based on causal relationships, with the
exception of the waiver/exempt costs, and the asylum and refugee
surcharge. These costs were assigned to each application and petition
based on their relationship to processing costs. The proposed
adjustments to the fee schedule of the Examinations Fee Account is the
total resource costs assigned to each application and petition type,
plus the pro-rata share of waiver/exempt costs and the asylum and
refugee surcharge. This amount is then rounded to the nearest whole
five-dollar amount. The proposed adjusted fee schedule for the
Immigration Examinations Fee Account is illustrated in Figure 6. Figure
6 provides information on the application or petition the INS proposes
to adjust, the total processing costs assigned to each application or
petition, the asylum and refugee surcharge, the amount for waiver/
exempt costs, and the total costs per application and petition. The
proposed rounded fees are compared to the current fee. (A summary of
the approach and methodology used in the fee study is explained in this
proposed rule. A comprehensive Fee Study report is available upon
request. Please refer to the FOR FURTHER INFORMATION CONTACT section of
this proposed rule for instructions on obtaining a copy of the fee
schedule.)

Figure 6.--Immigration Examinations Fee Account Proposed Fee Schedule Adjustments
--------------------------------------------------------------------------------------------------------------------------------------------------------
Asylum and
Application No. Description Processing Waiver/ refugee Total cost Proposed Current
cost exempt cost surcharge fee fee
--------------------------------------------------------------------------------------------------------------------------------------------------------
I-17....................................... Petition for Approval of $143.13 $24.71 $30.84 $198.68 $200.00 $140.00
School for Attendance by
Nonimmigrant Student.
I-90....................................... Application to Replace Alien 79.48 13.72 17.12 110.32 110.00 75.00
Registration Card.
I-102...................................... Application for Replacement/ 62.74 10.83 13.52 87.09 85.00 65.00
Initial Nonimmigrant Arrival/
Departure Record.
I-129/I-129H/I-129L........................ Petitions for Nonimmigrant 77.49 13.38 16.69 107.56 110.00 \1\ 75.00
Worker.
I-129F..................................... Petition for Alien Fiance(e). 67.45 11.64 14.53 93.62 95.00 75.00
I-130...................................... Petition for Alien Relative.. 78.75 13.59 16.96 109.30 110.00 80.00
I-131...................................... Application for Travel 67.98 11.73 14.64 94.35 95.00 70.00
Document.
I-140...................................... Petition for Alien Worker.... 81.87 14.13 17.64 113.64 115.00 75.00

[[Page 1794]]

I-485...................................... Application to Register 158.74 27.40 34.19 220.33 220.00 130.00
Permanent Residence or
Adjust Status.
I-526...................................... Immigrant Petition by Alien 250.61 43.26 53.99 347.86 350.00 155.00
Entrepreneur.
I-539...................................... Application to Extend/Change 86.22 14.88 18.58 119.68 120.00 75.00
Nonimmigrant Status.
I-600/I-600A............................... Petition to Classify Orphan 291.55 50.33 62.81 404.69 405.00 155.00
as an Immediate Relative/
Application for Advance
Processing of Orphan
Petition.
I-724...................................... Waiver Forms \2\............. 121.27 20.93 26.13 168.33 170.00 95.00
I-751...................................... Petition to Remove the 90.65 15.65 19.53 125.83 125.00 80.00
Conditions of Residence.
I-765...................................... Application for Employment 73.79 12.74 15.90 102.43 100.00 70.00
Authorization.
I-817...................................... Application for Voluntary 86.16 14.87 18.56 119.59 120.00 80.00
Departure under the Family
Unity Act.
I-824...................................... Application for Action on an 85.07 14.68 18.32 118.07 120.00 30.00
Approved Application or
Petition.
I-829...................................... Petition by Entrepreneur to 249.97 43.15 53.85 346.97 345.00 90.00
Remove Conditions.
N-400...................................... Application for 163.82 28.28 35.29 227.39 225.00 95.00
Naturalization.
N-565...................................... Application for Replacement 97.01 16.74 20.90 134.65 135.00 65.00
Naturalization/Citizenship
Document.
N-600...................................... Application for Certification 116.64 20.13 25.13 161.90 160.00 100.00
of Citizenship.
N-643...................................... Application for Certificate 90.85 15.68 19.57 126.10 125.00 80.00
of Citizenship on Behalf of
an Adopted Child.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ This amount represents the base fee currently charged for the Form I-129. In addition to the base fee, petitioners are currently required to add
additional amounts depending upon the number of non-immigrant workers on each petition, or whether the petition is for an extension of stay, change of
status, reclassification as a temporary worker or trainee, or to employee an intracompany transferee. The INS has simplified this fee structure by
charging a uniform fee for each type of non-immigrant worker petition filed.
\2\ Waiver Forms Include: I-191, Application for Advance Permission to Return to Unrelinquished Domicile; I-192, Application for Advance Permission to
Enter as a Nonimmigrant; I-193, Application for Waiver of Passport and/or Visa; I-212, Application to Reapply for Admission into the U.S After
Deportation; I-601, Application for Waiver on Grounds of Excludability; and I-612, Application for Waiver of the Foreign Residence Requirement.

Impact on Applicants and Petitioners

The INS recognizes that this proposed rule will have an impact on
persons who file the effected applications and petitions, with a total
impact in excess of $100 million annually. The fee increases will
affect the over 4 million applicants who file immigration adjudication
and naturalization applications and petitions each year. The financial
impact on persons who file these applications and petitions will vary;
the proposed fee increases range from $20.00 to $255.00 depending on
the type of application or petition filed. Three fees will increase by
amounts between $20.00 and $25.00; 11 fees will increase by amounts
between $30.00 and $45.00; seven fees will increase by amounts between
$60.00 and $75.00; four fees will increase by amounts between $80.00
and $90.00; and five fees will increase by amounts in excess of
$100.00. (Please refer to Figure 6 for details on the proposed fee
increases.)
During this fee setting process the INS used statistically valid
methods to determine the processing time and the related costs of
providing immigration adjudication and naturalization services. These
processing times include the time necessary to receive applications,
process data, manage records and files, adjudicate applications
(including interviewing), provide clerical support, produce cards and
certificates, and respond to inquiries. Prior fee setting efforts only
considered the adjudicative and clerical time as direct costs of the
immigration adjudication and naturalization applications and petitions.
For this reason, some applications and petitions may increase more
dramatically than others. These applications, particularly the Form N-
400, Application for Citizenship, and the Form I-600, Petition to
Classify Orphan as an Immediate Relative, require considerable time and
attention to receive, process, and adjudicate. In past fee setting
efforts, any costs that were not direct adjudicative, clerical, or card
production costs were assigned to an indirect cost pool and spread
evenly over all application and petitions types. This method obscured
the true full cost of the individual applications and petitions. The
current fee setting effort more closely aligns costs to application and
petition type.
The fee increases are necessary to fund the various immigration
adjudication and naturalization services provided by the INS. The INS
does not receive an appropriation (tax dollars) to fund these
activities and must rely on the revenue generated from its various
immigration adjudication and naturalization fees to continue providing
such services. The favorable

[[Page 1795]]

adjudication of immigration and naturalization applications and
petitions results in the granting of status, rights, and benefits upon
which it is difficult to place a monetary value. The INS accepts and
adjudicates applications and petitions that: confer legal permanent
resident, asylee, and refugee status; allow for family reunification;
permit non-immigrants to enter the United States for employment
purposes; allow legal permanent residents, asylees, and refugees to
seek employment in the United States; allow foreign students to enter
the United States for educational purposes; allow for the
classification of non-resident orphans as immediate relatives for the
purpose of adoption; provide reentry rights into the United States for
persons who may otherwise be excludable; and allow immigrants to apply
for and become citizens of the United States and partake of the
benefits of a democratic society.
Without the funding provided through these fees, the INS could not
continue to provide such services. The INS conducted a lengthy and
thorough review of the costs of providing immigration adjudication and
naturalization services and assigned those costs to the various
immigration adjudication and naturalization applications and petitions
in accordance with legislative intent and Federal cost accounting
guidelines. The fee setting process is explained in this proposed rule
and detailed documentation of the Fee Study is available from the INS
upon request. The INS attempted to set each fee at the cost of
resources consumed to providing specific services and without unduly
burdening any particular class of applicants or petitioners. The INS
has also established procedures by which applicants and petitioners may
apply for a waiver of certain fees when paying the fee constitutes a
financial hardship.

Changes in Certain Specific Fees

The INS is proposing to change the structure and eliminate several
fees. The fee for the Form I-485A, Application to Register Permanent
Residence or Adjust Status--Cuban Refugees, has been eliminated because
the INS has rescinded the use of this form.
The maximum amount payable for families filing the Form I-817,
Application for Voluntary Departure under the Family Unity Act, is also
being eliminated. The INS is changing the processing procedures for the
Form I-817. (New procedures for filing the I-817 will be addressed in a
separate rule.) Previously, applicants for Family Unity benefits who
desired employment authorization were required to file a separate Form
I-765, Application for Employment Authorization, and pay the
appropriate fee for that form. As part of the new processing procedures
for the Form I-817, the INS will now issue an Employment Authorization
Card (EAD) to each approved Form I-817 applicant. Family Unity
applicants will no longer be required to file a Form I-765 and pay the
additional fee in order to obtain an EAD. The INS had previously
established a maximum fee amount for families of four or more that
filed Forms I-817 concurrently. Most families of four or more members
who filed for Family Unity benefits had heads of households, spouses,
or minor children that wished to obtain employment authorization. The
INS recognized that the cost of filing the Forms I-817 and I-765
concurrently for multiple family members would be a financial hardship.
To mitigate this financial hardship, the INS capped the amount of the
Form I-817 fee for families of four at $225.00.
With the new procedure of issuing an EAD with each approved Form I-
817 application, the INS' processing costs will increase, but the
burden on families of four or more filing concurrent Forms I-817 will
decrease since these families will no longer be required to file the
Form I-765 and pay the additional fee.
The INS has also simplified the fee structure for the Form I-129,
Petition for Non-Immigrant Worker. Previously, the INS charged an
additional fee for petitions with named beneficiaries requesting
consulate or port-of-entry notification, and additional fees for
workers requesting a change of status or extension of stay. Since the
Form I-129 allows a petitioner to apply for several benefits on the
same form, petitioners found the fee structure very confusing, and
often submitted petitions with the wrong fee amount. This caused delays
in adjudication since any application or petition filed with the wrong
fee amount must be returned to the applicant or petitioner with a
request to re-submit the application with the correct fee. To mitigate
this confusion and prevent any delays in processing, the INS is
proposing a single fee for each Form I-129 filed, regardless of the
type of benefit requested. Future fees studies will further examine the
fee structure of the Form I-129 and refine the fee structure, if
necessary. For the same reasons, the INS is eliminating the co-
applicant fee on the Form I-539, Application to Extend or Change
Nonimmigrant Status.

Regulatory Flexibility Act

The Attorney General, in accordance with 5 U.S.C. 605(b), has
reviewed this regulation and by approving it has determined that this
rule will not have a significant economic impact on a substantial
number of small entities. The INS does acknowledge, however, that a
number of small entities, particularly those filing business-related
applications and petitions such as the Form I-129, Petition for
Nonimmigrant Worker, may be affected by this rule. For FY 1998, the INS
projects that approximately 254,000 Forms I-129 will be filed. However,
this volume represents petitions filed by a variety of businesses,
ranging from large multi-national corporations to small domestic
businesses. The INS does not have statistics on the number of small
businesses that may be affected by this rule. The INS tracks the number
of petitions filed; these volume statistics do not indicate which types
of businesses file petitions, or the size of the businesses filing the
Form I-129.
The INS conducted an exhaustive review of the costs incurred by the
INS for the processing the various immigration adjudication and
naturalization applications and petitions. The INS believes that, as a
result of this study, the proposed fees reflect, as closely as
possible, the full cost of providing the specific service provided
through the filing of an application or petition. The INS conducted its
review and adjusted its fees in accordance with statutory mandates and
Federal cost accounting standards. These statutes and standards require
the INS to recover the full cost of providing services that confer a
benefit that does not accrue to the public at large. The Form I-129
will increase from the current base fee of $75.00 to $110.00, an
increase of $35.00. While this increase is notable, it is important to
note that the immigration adjudication and naturalization fees have not
increased in the past three years; during the same period the INS has
experienced a significant increase in its costs. Additionally, the
increased cost for the Form I-129 is modest indeed in the context of
the total costs businesses incur in relocating non-immigrant workers to
the United States.

Unfunded Mandates Reform Act of 1995

This rule will not impose a mandate or enforceable duty on State,
local and tribal governments, in the aggregate, or on the private
sector, and it will not significantly or uniquely affect small
governments. This rule will only affect persons who file applications
or petitions for immigration benefits. The increase in fees is
necessary to defray the higher costs of adjudicating and

[[Page 1796]]

granting the benefits sought. The Supplementary Information portion of
this rule explains in detail the basis for calculating these fee
increases. No further actions are necessary under the provisions of the
Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is a major rule as defined by the Small Business
Regulatory Enforcement Act of 1996. This rule will result in an annual
effect on the economy of more than $100 million, in order to generate
the revenue necessary to fund the increased expenses of the INS
adjudication and naturalization program. The increased fees will be
paid by persons who file applications or petitions to obtain
immigration benefits.

Executive Order 12866

This rule is considered by the Department of Justice to be an
economically ``significant regulatory action'' under Executive Order
12866, Regulatory Planning and Review, section 3(f), because it will
have an annual effect on the economy of $100 million or more. Without
the proposed increases, the INS estimates that it will collect $368.4
million in fees for immigration adjudication and naturalization
services in FY 1998; with the proposed increase, the INS will collect
approximately $648.7 million. The implementation of this proposed rule
will provide the INS with an additional $280.3 million in revenue over
the revenue that would be collected under the current fee structure.
This increase in revenue will be used to fund the processing of
immigration adjudication and naturalization applications and petitions.
The revenue increase is based on INS costs and workload volumes that
were available at the time of the fee study. The volume of applications
and petitions filed is projected based on a regression analysis of a
five-year history of actual applications and petitions received by the
INS. The regression analysis is adjusted for any anticipated or actual
changes in laws, policies, or procedures that may affect future filing
patterns. The proposed fees will be paid by an estimated 4.3 million
individuals and businesses filing immigration adjudication and
naturalization applications and petitions. Accordingly, this regulation
has been submitted to the Office of Management and Budget for review.

Executive Order 12612

The regulations proposed herein will not have substantial direct
effects on the States, on the relationship between the National
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this rule
does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.

Executive Order 12988

This proposed rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

This proposed rule does not impose any new reporting or
recordkeeping requirements.

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. In Sec. 103.7, paragraph (b)(1) is amended by removing the entry
for ``Form I-485A'' and revising the entries for the following forms
listed, to read as follows:

Sec. 103.7 Fees.

* * * * *
(b) * * *
(1) * * *
* * * * *
Form I-17. For filing an 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--$200.00.
* * * * *
Form I-90. For filing an 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 for a change in name-$110.00.
* * * * *
Form I-102. For filing a petition for an application (Form I-
102) for Arrival-Departure Record (Form I-94) or Crewman's Landing
(Form I-95) , in lieu of one lost, mutilated, or destroyed--$85.00.
Form I-129. For filing a petition for a non-immigrant worker--
$110.00.
Form I-129F. For filing petition to classify nonimmigrant as
fiancee or fiance under section 214(d) of the Act--$95.00.
Form I-129H. For filing a petition to classify nonimmigrant as
temporary worker or trainee under section 214(c) of the Act--
$110.00.
Form I-129L. Petition to employ intracompany transferee--
$110.00.
Form I-130. For filing a petition to classify status of alien
relative for issuance of immigrant visa under section 204(a) of the
Act--$110.00.
Form I-131. For filing an application for travel documents--
$95.00.
Form I-140. For filing a petition to classify preference status
of an alien on basis of profession or occupation under section
204(a) of the Act--$115.00.
* * * * *
Form I-191. For filing applications for discretionary relief
under section 212(c) of the Act--$170.00.
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--$170.00.
Form I-193. For filing an application for waiver of passport
and/or visa--$170.00.
Form I-212. For filing an application for permission to reapply
for an excluded, deported or removed alien, an alien who has fallen
into distress, an alien who has been removed as an alien enemy, or
an alien who has been removed at Government expense in lieu of
deportation--$170.00.
* * * * *
Form I-485. For filing application for permanent resident status
or creation of a record of lawful permanent residence--$220.00 for
an applicant 14 years of age or older; $160.00 for an applicant
under the age of 14 years.
* * * * *
Form I-526. For filing a petition for an alien entrepreneur--
$350.00.
* * * * *
Form I-539. For filing an application to extend or change
nonimmigrant status--$120.00.
* * * * *
Form I-600. For filing a 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.)--$405.00.
Form I-600A. For filing an 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.)--$405.00.
Form I-601. For filing an application for waiver of ground of
inadmissability under section 212(h) or (i) of the Act. (Only a
single application and fee shall be required when

[[Page 1797]]

the alien is applying simultaneously for a waiver under both those
sub-sections.)--$170.00.
Form I-612. For filing an application for waiver of the foreign-
residence requirement under section 212(e) of the Act--$170.00.
* * * * *
Form I-751. For filing a petition to remove the conditions on
residence, based on marriage--$125.00.
Form I-765. For filing an application for employment
authorization pursuant to 8 CFR 274a.13--$100.00.
* * * * *
Form I-817. For filing an application for voluntary departure
under the Family Unity Program--$120.00.
* * * * *
Form I-824. For filing for action on an approved application or
petition--$120.00
Form I-829. For filing petition by entrepreneur to remove
conditions--$345.00.
* * * * *
Form N-400. For filing an application for naturalization--
$225.00. For filing an application for naturalization under section
405 of the Immigration Act of 1990, if the applicant will be
interviewed in the Philippines--$250.00.
* * * * *
Form N-565. For filing an 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--$135.00.
Form N-600. For filing an application for certificate of
citizenship under section 309(c) or section 341 of the Act--$160.00.
Form N-643. For filing an application for a certificate of
citizenship on behalf of an adopted child--$125.00.
* * * * *
Dated: January 5, 1998.
Janet Reno,
Attorney General.
[FR Doc. 98-576 Filed 1-9-98; 8:45 am]
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