[Federal Register Volume 66, Number 106 (Friday, June 1, 2001)]
[Rules and Regulations]
[Pages 29682-29686]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-13566]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103 and 299

[INS No. 2108-01]
RIN 1115-AG03


Establishing Premium Processing Service for Employment-Based 
Petitions and Applications

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule amends the Immigration and Naturalization Service 
(Service) regulations by establishing a Premium Processing Service for 
certain employment-based petitions and applications. If an entity pays 
the required fee for Premium Processing Service, the Service will 
process the petition or application within 15 calendar days. Premium 
Processing Service will provide American businesses with the 
opportunity to obtain faster processing of petitions and applications 
to meet their needs for foreign workers.

DATES: Effective date: This interim rule is effective June 1, 2001.
    Comment date: Written comments must be submitted on or before July 
31, 2001.

ADDRESSES: Please submit written comments to the Director, Policy 
Directives and Instructions Branch, Immigration and Naturalization 
Service, 425 I Street, NW., Room 4034, Washington, DC 20536, or via fax 
to (202) 305-0143. To ensure proper handling, please reference INS No. 
2108-01 on your correspondence. Comments are available for public 
inspection at the above address by calling (202) 514-3048 to arrange 
for an appointment.

FOR FURTHER INFORMATION CONTACT: Tracy Renaud, Adjudications Officer, 
Immigration Services Division, Immigration and Naturalization Service, 
800 K Street, NW., 10th Floor, Washington, DC 20536, telephone (202) 
305-8010.

SUPPLEMENTARY INFORMATION:

Background

What Is the Authority To Charge a Premium Processing Fee?

    On December 21, 2000, the President signed the District of Columbia 
Appropriations Act, 2001, Public Law 106-553, 114 Stat. 2762 (2000). 
The legislation added a new section 286(u) to the Immigration and 
Nationality Act (Act) that authorizes the Attorney General to collect a 
$1,000 ``premium processing'' fee in addition to the regular filing fee 
that must be paid for the filing with the Service of certain petitions 
and applications. Under this new legislation, the authority to collect 
the premium processing fee applies only to employment-based petitions 
and applications.

Why Have Premium Processing Service?

    The Premium Processing Service will enable the Service to improve 
its services to its business customers. These businesses must sometimes 
recruit and hire foreign workers to fill jobs in short time frames. The 
Service's current processing times for employment-based petitions and 
applications may not accommodate the needs of these businesses. The 
Premium Processing Service will give American businesses an option to 
pay for faster processing of petitions and applications for foreign 
workers.

What Is Premium Processing Service?

    The District of Columbia Appropriations Act of 2001, Public Law 
106-553, established ``premium processing service'' and the associated 
filing fee. It also specified that the Service was required to process 
applications under the Premium Processing Service in 15 calendar days. 
However, the legislation did not explicitly define what ``premium 
processing service'' means. Therefore, the Service is using its 
authority under section 103(a) of the Act to establish the details of 
this new service.
    For example, if the applicant or petitioner pays for Premium 
Processing Service of a petition or application, the Service will issue 
an approval notice, notice of intent to deny, request for evidence, or 
notice of an investigation for fraud or misrepresentation within 15 
calendar days. Premium Processing Service begins on the day the Service 
physically receives a petition or application and ends on the day the 
Service issues a notice or request. If the Service does not issue a 
notice or request within 15 calendar days, the Service will refund the 
fee automatically. However, when the Service fails to issue a notice or 
request within 15 calendar days and refunds the fee, the Service will 
still expeditiously process the case. If the application or petition in 
question was not eligible for Premium Processing Service, the fee will 
be refunded and the Service will continue to process the case normally.

What Are the Benefits of the Premium Processing Service?

    The Premium Processing Service provides a benefit to all entities 
that file applications and petitions with the Service, and not just to 
those employers

[[Page 29683]]

who are granted Premium Processing Service. The fee revenue generated 
by Premium Processing Service will be deposited into the Immigration 
Examinations Fee Account and used by the Service to hire additional 
adjudicators, contact representatives, and support personnel to provide 
service to all its customers. The fee will also be used for 
infrastructure improvements.

What Is the Fee for the Premium Processing Service?

    The fee for Premium Processing Service is $1,000 in addition to the 
filing fee for the petition or application. As an example, H-2B cases 
are eligible for Premium Processing Service. There are two fees 
involved: The Form I-129, Petition for Nonimmigrant Worker, filing fee 
of $110 and the $1,000 Premium Processing fee.

Can the Fee for Premium Processing Service Be Waived?

    The fee for Premium Processing Service is set by law and cannot be 
waived for any reason. However, the Service will refund the fee if it 
cannot complete its adjudication within 15 calendar days or if Premium 
Processing for a particular application or petition has been suspended.
    The Service will continue its existing policy and procedures for 
requesting expeditious processing, without any additional fee, of 
petitions that are filed by petitioners designated as non-profit by the 
Internal Revenue Service and for petitions and applications that are 
not designated for Premium Processing Service.

How Do I Request Premium Processing Service?

    You may request Premium Processing Service by filing a completed 
Form I-907, Request for Premium Processing Service, with the petition 
or application and paying the Premium Fee. You must pay the Premium Fee 
with a separate check or money order in the amount of $1,000. This 
check is in addition to the check for the regular filing fee for the 
application or petition.

Can I Request Premium Processing Service for a Pending Petition or 
Application?

    Yes, if you want to request Premium Processing Service, you can 
file Form I-907, Request for Premium Processing Service, with the 
Premium Fee, either at the same time as or after a petition or 
application. If you file Form I-907, after you file the related 
petition or application, the 15 calendar day processing period will 
begin when the Service receives the Form I-907.

Where Should I Mail My Request for Premium Processing?

    If the Form I-907 is filed at the same time as the related 
petition, submit both forms to the designated Premium Processing 
address for the INS Service Center indicated on the petition. If the 
Form I-907 is filed after the related petition, submit it to the 
designated Premium Processing Address for the INS Service Center where 
the related petition was previously filed. When submitting a Form I-907 
after a related petition, if possible, include a copy of the Form I-
797, Notice of Action, showing receipt of the related petition.
    A designated Premium Processing address for each of the four 
centers will be published on the instruction sheet to Form I-907. The 
designated address must be used to be sure the Premium Processing 
petition immediately enters the Premium Processing unit. If an 
alternate address is used, the 15 calendar day processing time will 
begin when the Service initially identifies the case as a request for 
Premium Processing.
    In addition, the employer must file the Premium Processing request 
at the INS Service Center designated for the specific application or 
petition. The Service has established special filing procedures for 
certain applications and petitions. For example, petitions involving 
the E-1 and E-2 nonimmigrant classifications must be filed at either 
the Texas or California Service Center. Therefore, the Premium 
Processing request must also be filed at these locations. A Form I-907 
filed in connection with a petition involving the E-1 or E-2 
nonimmigrant classification must be submitted to the designated Premium 
Processing address for the Texas or California Service Center, as 
appropriate.

What if I Have a Question About My Premium Processing petition?

    Designated customer service e-mail addresses will be provided on 
the instruction sheet to Form I-907. The Service will also provide 
customers with designated phone numbers on receipt notices for the Form 
I-907. The phone numbers and e-mail addresses will be for use by 
Premium Processing customers only.

Can I Request Premium Processing Service for any Employment-Based 
Petition or Application?

    The Service will designate certain employment-based petitions or 
applications for Premium Processing Service. Absent the Premium fee, 
the Service will process the petition or application under normal 
procedures. If you request Premium Processing Service for a petition or 
application that has not been designated by the Service, the Service 
will return the Premium Processing Fee and Form I-907 and continue 
normal processing of the petition or application.

How Will the Service Designate Petitions and Applications for Premium 
Processing Service?

    The Service will designate petitions and applications for Premium 
Processing Service by publishing notices in the Federal Register. These 
notices will specify the form types and the visa classifications for 
which Premium Processing Service is available. The notices will also 
specify the dates on which the availability of Premium Processing 
Service begins and ends.
    The Service is designating Form I-129, Petition for Nonimmigrant 
Worker, for Premium Processing Service beginning on June 1, 2001. 
Classifications within the Form I-129 eligible for the Premium 
Processing program as of June 1, 2001 are:

(1) E-1 Treaty Trader;
(2) E-2 Treaty Investor;
(3) H-2A Agricultural Worker;
(4) H-2B Temporary Worker;
(5) H-3 Trainee;
(6) L-1 Intracompany Transferree;
(7) O-1 and O-2 Aliens of Extraordinary Ability or Achievement;
(8) P-1, P-2, and P-3 Athletes and Entertainers; and
(9) Q-1 International Cultural Exchange Aliens.

    Classifications within the Form I-129 eligible for the Premium 
Processing program as of July 30, 2001 are:

(1) H-1B Temporary Worker with Specialty Occupation;
(2) R-1 Temporary Worker in Religious Occupations; and
(3) TN NAFTA Professional.

    These designations will continue until the Service publishes a 
notice amending or terminating them.

What if the Beneficiary of a Premium Processing Petition Has Dependent 
Family Members Who Are Seeking Derivative Benefits?

    If the family members application(s) is filed concurrently with the 
Premium Processing petition, the Service will process the 
application(s) for the family members with the Premium Processing 
petition in 15 calendar days without requiring an additional $1,000 fee 
for the family member's application(s). This

[[Page 29684]]

applies only to dependents of the beneficiary of the Premium Processing 
petition.

How Will the Service Process Requests for Premium Processing Service of 
Petitions for Nonimmigrant Classifications Subject to Annual Numerical 
Limitations?

    The Service is designating Premium Processing Service for certain 
nonimmigrant classifications that are subject to annual numerical 
limitations. Like petitions filed under regular procedures, petitions 
for which Premium Processing Service is requested will be processed in 
the order of receipt. Once the annual limitation for a nonimmigrant 
classification is met (e.g., when the Service has received a volume of 
H-1B petitions sufficient to reach the annual numerical limitation), 
INS will temporarily terminate Premium Processing Service for all 
pending petitions filed for entry in that fiscal year. The Service will 
then process all pending petitions (regular and premium together) in 
the order of receipt.
    The Service believes that temporary termination of Premium 
Processing Service is the fairest method to balance the interest of 
expedited processing while reasonably preserving the ability of all 
individuals to access numerically limited immigration programs.
    The Service will announce the temporary termination by publication 
of a notice in the Federal Register. When the Service announces 
temporary termination of Premium Processing Service for a particular 
nonimmigrant classification, it will return the Form I-907 and Premium 
Fee for all requests subject to the termination.

Explanation of Changes

What Changes Is the Service Making to the Regulations?

1. Changes in Sec. 103.2
    In Sec. 103.2 the Service is adding a new paragraph (f) to describe 
the process that the Service will use to process requests for Premium 
Processing Service.
2. Changes in Sec. 103.7
    In Sec. 103.7, the Service is amending the regulations to add the 
fee for Premium Processing Service for certain employment-based 
petitions and applications. The fee is established at $1,000 per 
petition or application requesting Premium Processing Service. Payment 
of the fee guarantees 15 calendar day processing of the petition or 
application. The fee for Premium Processing Service cannot be waived.
3. Changes in Sec. 299.1 and Sec. 299.5
    In Sec. 299.1 and Sec. 299.5, the Service is amending the 
regulations to add the Form I-907, Request for Premium Processing 
Service, to the listing of forms. This form must be filed in 
conjunction with a petition or application to request Premium 
Processing Service.

Good Cause Exception

    This interim rule is effective on June 1, 2001, although the 
Service invites post-promulgation comments and will address any such 
comments in a final rule. For the following reasons, the Service finds 
that good cause exists for adopting this rule without the prior notice 
and comment period or the delay in the effective date ordinarily 
required by 5 U.S.C. 553(b)(3)(B) and (d)(3). Section 112 of Public Law 
106-553 specifically authorizes the Attorney General to collect a fee 
for employment-based petitions and applications to be used to provide 
certain Premium Processing Services to business customers. By delaying 
implementation of this rule, these business customers will not be able 
to immediately benefit from the Premium Processing Services. Premium 
Processing Services allows for United States employers to fill key 
vacancies expeditiously allowing these employers to enhance their 
profitability and productivity. The benefit will result in certain 
businesses saving valuable time in hiring foreign-workers that can 
result in benefits to the entire country. A delay in the implementation 
of this statutory process would, therefore, be contrary to the public 
interest. Accordingly, the Service finds that it is impracticable and 
contrary to the public interest to publish this rule with prior notice 
and comment period or a delay in the effective date normally required 
under 5 U.S.C. 553.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, in 
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has 
reviewed this regulation and, by approving it, certifies that this rule 
will not have a significant economic impact on a substantial number of 
small entities. Although there is an additional cost for entities (both 
large and small) to obtain Premium Processing Service, the $1,000 
Premium Processing Fee is established by statute. The Premium 
Processing Service is voluntary and is intended to expedite requests by 
American businesses to hire foreign workers.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely effect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100 million or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and export markets.

Executive Order 12866

    This rule is considered by the Department of Justice, Immigration 
and Naturalization Service, to be a ``significant regulatory action'' 
under Executive Order 12866, section 3(f), Regulatory Planning and 
Review. Accordingly, this regulation has been submitted to the Office 
of Management and Budget for review. It is estimated that petitioners 
and applicants will pay $25 million in fiscal year 2001 for Premium 
Processing Services, and $80 million in fiscal year 2002.

Executive Order 13132

    This rule 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 section 6 of 
Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

Executive Order 12988 Civil Justice Reform

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

Paperwork Reduction Act

    Since this interim rule takes effect on June 1, 2001, and the Form 
I-907, is

[[Page 29685]]

required by the business community to request Premium Processing 
Services, the Service is using emergency review procedures for review 
and clearance by the Office of Management and Budget (OMB) in 
accordance with the Paperwork Reduction Act (PRA) of 1995. The Service 
has requested that OMB waive the comment period for the emergency 
paperwork review. If granted, the emergency approval is only valid for 
180 days.
    A regular review of this information collection will also be 
undertaken. Written comments are encouraged and will be accepted until 
July 31, 2001. Submit comments to: Director, Policy Directives and 
Instructions Branch, Immigration and Naturalization Service, 425 I 
Street, NW., Room 4034, Washington, DC 20536, or via fax to (202) 305-
0143. Your comments should address one or more of the following points:
    (1) Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden of 
the proposed collection of information, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses.
    The Service in calculating the overall burden this requirement will 
place upon the public, estimates 80,000 applications for Premium 
Processing Services will be requested annually. The Service estimated 
that it will take approximately .25 hours to comply with the 
requirements of Form I-907. This amounts to 20,000 total burden hours.
    Organizations and individuals interested in submitting comments 
regarding this burden estimate or any aspect of these information 
collection requirements, including suggestions for reducing the burden, 
should direct them to the Immigration and Naturalization Service, 
Policy Directives and Instructions Branch, 425 I Street, NW., Suite 
4034, Washington, DC 20536; Attention: Richard A. Sloan, Director, 
(202) 514-3048.

List of Subjects

8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(Government agencies), Reporting and recordkeeping requirements.

8 CFR Part 299

    Immigration, Reporting and recordkeeping requirements.

    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations is 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, 
1252 note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 
14874, 15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.

    2. Section 103.2 is amended by adding a new paragraph (f) to read 
as follows:


Sec. 103.2  Applications, petitions, and other documents.

* * * * *
    (f) Requests for Premium Processing Service.--(1) Filing 
information. A petitioner or applicant requesting Premium Processing 
Service shall submit Form I-907, with the appropriate fee to the 
Director of the service center having jurisdiction over the application 
or petition. Premium Processing Service guarantees 15 calendar day 
processing of certain employment-based petitions and applications. The 
15 calendar day processing period begins when the Service receives Form 
I-907, with fee, at the designated address contained in the 
instructions to the form. The Service will refund the fee for Premium 
Processing Service, but continue to process the case, unless within 15 
calendar days of receiving the application or petition and Form I-907, 
issues and serves on the petitioner or applicant an approval notice, a 
notice of intent to deny, a request for evidence, or opens an 
investigation relating to the application or petition for fraud or 
misrepresentation.
    (2) Applications and petitions eligible for Premium Processing 
Service. The Service will designate and terminate petitions and 
applications as eligible for Premium Processing Service by publication 
of notices in the Federal Register.
    (3) Fees for Premium Processing Services. The fee for Premium 
Processing Service may not be waived. The fee for Premium Processing 
Service is in addition to all other filing fees for the application or 
petition as provided for in Sec. 103.7. A separate remittance must be 
submitted for the filing fee for Form I-907. If the Service fails to 
process a petition or application with the 15 calendar day period, the 
fee for Premium Processing Services will be automatically refunded to 
the petitioner or applicant, and the Service will continue to process 
the application/petition on the premium processing track.
    (4) Temporary termination of Premium Processing Service. The 
Service may designate as eligible for Premium Processing Service 
certain petitions or applications filed on behalf of nonimmigrant 
aliens that are subject to annual numerical limitations. In order to 
ensure equitable access to these limited visa programs, the Service may 
temporarily terminate the availability of Premium Processing Service 
for certain petitions or applications. The Service will announce a 
temporary termination by publication of a notice in the Federal 
Register. Upon temporary termination of a classification the petition 
or application will not be rejected. Instead, the petition or 
application will be moved into the pool of normal processing cases and 
only the Form I-907 will be rejected and the Fee for Form I-907 will be 
returned to the applicant or petitioner.
* * * * *

    3. Section 103.7 is amended by:
    a. Amending paragraph (b)(1) by adding the entry ``Form I-907'' in 
proper alpha-numerical sequence to the listing of fees; and
    b. Revising paragraph (c)(1).
    The addition and revision read as follows:


Sec. 103.7  Fees.

* * * * *
    (b)  * * * (1)  * * *
* * * * *
    Form I-907. For filing a request for Premium Processing Service for 
certain employment based applications and petitions-$1,000. The fee for 
Premium Processing Service may not be waived.
* * * * *
    (c)(1) Except as otherwise provided in this paragraph (c) and in 
Sec. 3.3(b) of this chapter, any of the fees prescribed in paragraph 
(b) of this section relating to applications, petitions, appeals, 
motions, or requests may be waived by the Immigration Judge in any case 
under his/her jurisdiction in which the alien or other party affected 
is able to substantiate that he or she is unable to

[[Page 29686]]

pay the prescribed fee. The person seeking a fee waiver must file his 
or her affidavit, or unsworn declaration made pursuant to 28 U.S.C. 
1746, asking for permission to prosecute without payment of fee of the 
application, petition, appeal, motion, or request, and stating his or 
her belief that he or she is entitled to or deserving of the benefit 
requested and the reasons for his or her inability to pay. The officer 
of the Service having jurisdiction to render a decision on the 
application, petition, appeal, motion, or request may, in his 
discretion, grant the waiver of fee. Fees for ``Passenger Travel 
Reports via Sea and Air'' and for special statistical tabulations may 
not be waived. The payment of the additional sum prescribed by section 
245(i) of the Act when applying for adjustment of status under section 
245 of the Act may not be waived. The payment of the additional $500 
fee prescribed by section 214(c)(9) of the Act when applying for 
petition for nonimmigrant worker under section 101(a)(15)(H)(i)(b) of 
the Act may not be waived. The fee for Form I-907, Request for Premium 
Processing Services, may not be waived.
* * * * *

PART 299--IMMIGRATION FORMS

    4. The authority citation for part 299 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.

    5. Section 299.1 is amended in the table by adding the entry for 
Form I-907, in proper alpha-numerical sequence, to read as follows:


Sec. 299.1  Prescribed forms.

* * * * *

----------------------------------------------------------------------------------------------------------------
            Form No.               Edition date                                Title
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
I-907..........................        05-16-01   Request for Premium Processing Services.
 
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------


    6. Section 299.5 is amended in the table by adding the entry for 
Form ``I-907'', in proper alpha-numerical sequences, to read as 
follows:


Sec. 299.5  Display of control numbers.

* * * * *

------------------------------------------------------------------------
                                                            Currently
          INS form No.               INS form title        assigned OMB
                                                           control No.
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*                  *                  *                  *
                  *                  *                  *
I-907..........................  Request for Premium          1115-0241
                                  Processing Services.
 
*                  *                  *                  *
                  *                  *                  *
------------------------------------------------------------------------


    Dated: May 24, 2001.
Kevin D. Rooney,
Acting Commissioner, Immigration and Naturalization Service.
[FR Doc. 01-13566 Filed 5-31-01; 8:45 am]
BILLING CODE 4410-10-P