[Federal Register Volume 68, Number 39 (Thursday, February 27, 2003)]
[Rules and Regulations]
[Pages 8989-8992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4747]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 103

[INS No. 2260-03]
RIN 1115-AH00


Readjustment of Immigration Benefit Application Fees

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: On January 24, 2003, the Immigration and Naturalization 
Service (Service) published an interim rule in the Federal Register 
adjusting the immigration benefit application fee schedule by 
subtracting the applicable amount of surcharges used for asylum and 
refugee services, fee exemptions and fee waivers. The Service was 
required to take that action under provisions of section 457 of the 
Homeland Security Act of 2002, Public Law 107-296. However, Congress 
has now repealed that section in the Homeland Security Act Amendments 
of 2003. Accordingly, this rule readjusts the immigration benefit 
application fee schedule to the levels that existed prior to January 
24, 2003. Fees collected from persons filing immigration benefit 
applications are deposited into the Immigration Examinations Fee 
Account and recover the cost of processing immigration benefit 
applications and associated administrative costs and the costs of 
asylum applications pursuant to law. Federal guidelines require the 
Service to establish and collect fees to recover the full costs of 
processing immigration benefit applications.

DATES: Effective date: This rule is effective February 27, 2003.
    Comment date: Written comments must be submitted on or before April 
28, 2003. Comments on the interim rule published on January 24, 2003, 
and comments on this interim rule will be addressed jointly in the 
final rule.

ADDRESSES: Please submit written comments to the Director, Regulations 
and Forms Services Division, Immigration and Naturalization Service, 
425 I Street NW., Room 4034, Washington DC 20536. To ensure proper 
handling, please reference INS Number 2260-03 on your correspondence. 
You may also submit comments electronically at [email protected]. When 
submitting comments electronically, you must include INS No. 2257-03 in 
the subject box so that your comments can be properly routed to the 
appropriate office. Comments are available for public inspection at the 
above address by calling (202) 514-3291 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Paul Schlesinger, Chief, Immigration 
Services Branch, Office of Budget, Immigration and Naturalization 
Service, 425 I Street NW., Room 5307, Washington, DC 20536, telephone 
(202) 514-3410.

SUPPLEMENTARY INFORMATION:

Legal Authority To Charge Fees

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

    As a federal agency, the Immigration and Naturalization Service 
(Service) long has had statutory authority to charge fees for services 
provided. e.g., 31 U.S.C. 9701. The Departments of Commerce, Justice, 
and State, the Judiciary, and Related Agencies Appropriation Act, 1989, 
Pub. L. No. 100-459, sec. 209, 102 Stat. 2186, 2203 (October 1, 1988), 
authorized the establishment of the Immigration Examinations Fee 
Account (IEFA) in the Treasury of the United States. All revenue from 
fees collected for immigration and naturalization benefits are 
deposited in the IEFA and remain available to provide immigration and 
naturalization services. 8 U.S.C. 1356(n).
    In subsequent legislation, the Departments of Commerce, Justice, 
and State, the Judiciary, and Related Agencies Appropriations Act, 
1991, Pub. L. No. 101-515, sec. 210(d), 104

[[Page 8990]]

Stat. 2101, 2121 (November 5, 1990), Congress further provided 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).
    The House Conference Report to the bill, entitled ``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'' H.R. Conf. Rep. No. 104-378, at 82 
(1995), directs the Service to fund the cost of the Cuban-Haitian 
Entrant Program from the IEFA. 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 [IEFA].'' Id.
    In a final rule effective October 13, 1998, (except for the Form N-
400, which took effect on January 15, 1999) the Service raised the 
majority of fees to recover the full costs of processing immigration 
benefit applications, and added a ``surcharge'' setting the fees at a 
level sufficient to fund the processing of asylum and refugee 
applications as well as those immigration benefit applications 
processed at no charge to applicants/petitioners. The Service 
subsequently adjusted the levels of fees in the IEFA, after notice and 
comment, effective February 19, 2002.

The Impact of Section 457 of the Homeland Security Act on the Fee 
Structure

    In section 457 of the Homeland Security Act of 2002, Congress 
amended section 286(m) of the Immigration and Nationality Act (8 U.S.C. 
1356(m)) by striking ``services, including the costs of similar 
services provided without charge to asylum applicants or other 
immigrants.'' and inserting ``services.''. This amendment effectively 
repealed the statutory basis for surcharges. Accordingly, the Service 
reduced the immigration benefit application fees by an average of $50, 
or 25 percent, for the surcharges applied to the majority of 
immigration benefit applications (see 68 FR 3798, dated January 24, 
2003).

The Impact of the Homeland Security Act Amendments of 2003

    In section 107 of Homeland Security Act Amendments of 2003, 
Congress amended the Homeland Security Act by striking section 457, 
including the amendment made by such section. As a result, the Service 
is once again authorized to add a surcharge to immigration benefit 
applications in order to fund the processing of asylum and refugee 
applications as well as those immigration benefit applications 
processed at no charge to applicants/petitioners. Accordingly, the 
Service is readjusting the immigration benefit application fee schedule 
by adding in the surcharges that were removed on January 24, 2003, thus 
restoring the fees to the pre-January 24, 2003, levels. The submission 
of the reinstated fees reflected in the table below is required for 
applications submitted on or after February 27, 2003. The Service will 
accept applications or petitions submitted with the fee that was in 
effect before the publication of this interim rule, if the application 
or petition is postmarked on or before February 27, 2003. The following 
table displays the new immigration benefit application fees.

                        Table 1.--Current Versus New Immigration Benefit Application Fees
----------------------------------------------------------------------------------------------------------------
                                                                          Fee prior                   Fee under
                 Form No.                          Description           to 1/23/03    Current fee    this rule
----------------------------------------------------------------------------------------------------------------
I-17.....................................  Petition for Approval of             $580          $517          $580
                                            School Attendance by
                                            Nonimmigrant Student.
I-90.....................................  Application to Replace                130            95           130
                                            Permanent Resident Card.
I-102....................................  Application for Replacement/          100            73           100
                                            Initial Nonimmigrant
                                            Arrival/Departure Record.
I-129....................................  Petition for A Nonimmigrant           130            96           130
                                            Worker.
I-129F...................................  Petition for Alien                    110            81           110
                                            Fianc[eacute](e).
I-130....................................  Petition for Alien Relative           130            96           130
I-131....................................  Application for Travel                110            80           110
                                            Document.
I-140....................................  Immigrant Petition for                135            99           135
                                            Alien Worker.
I-191....................................  Application for Permission            195           142           195
                                            to Return to an
                                            Unrelinquished Domicile.
I-192....................................  Application for Advance               195           142           195
                                            Permission to Enter as a
                                            Nonimmigrant.
I-193....................................  Application for Waiver of             195           142           195
                                            Passport and/or Visa.
I-212....................................  Application for Permission            195           142           195
                                            to Reapply for Admission
                                            into the U.S. After
                                            Deportation or Removal.
I-485....................................  Application to Register               255           186           255
                                            Permanent Residence or to
                                            Adjust Status.
I-526....................................  Immigrant Petition by Alien           400           290           400
                                            Entrepreneur.
I-539....................................  Application to Extend/                140           102           140
                                            Change Nonimmigrant Status.
I-600/600 A..............................  Petition to Classify Orphan           460           332           460
                                            as an Immediate Relative/
                                            Application for Advance
                                            Processing or Orphan
                                            Petition.
I-601....................................  Application for Waiver of             195           142           195
                                            Grounds of Excludability.
I-612....................................  Application for Waiver of             195           142           195
                                            the Foreign Residence
                                            Requirement.
I-751....................................  Petition to Remove the                145           105           145
                                            Conditions on Residence.
I-765....................................  Application for Employment            120            88           120
                                            Authorization.
I-817....................................  Application for Family                140           102           140
                                            Unity Benefits.
I-824....................................  Application for Action on             140           103           140
                                            an Approved Application or
                                            Petition.
I-829....................................  Petition by Entrepreneur to           395           286           395
                                            Remove Conditions.
N-400....................................  Application for                       260           188           260
                                            Naturalization.
N-565....................................  Application for Replacement           155           113           155
                                            Naturalization Citizenship
                                            Document.
N-600....................................  Application for                       185           134           185
                                            Certification of
                                            Citizenship.
N-643....................................  Application for Certificate           145           105           145
                                            of Citizenship in Behalf
                                            of an Adopted Child.
----------------------------------------------------------------------------------------------------------------


[[Page 8991]]

The Impact of the Homeland Security Act Amendments of 2003 on Current 
Programs

    The statutory amendment restores the funding for the asylum and 
refugee programs and assures the continued ability of the Service to 
adjudicate applications for these programs. This amendment also 
restores funding for the adjudication of other applications for which 
the Service grants a fee waiver or exemption under the relevant 
standards, and allows the Service to once again process those 
applications at no charge to designated applicants and petitioners.

Good Cause Exception

    This interim rule is effective on February 27, 2003, although the 
Service invites post promulgation comments and will address any such 
comments in a final rule. The Service finds that good cause exists to 
adopt this rule without the prior notice and comment period and delayed 
effective date ordinarily required by 5 U.S.C. 553(b) and (d). The 
Service had set the pre-January 24, 2003, fee levels through a notice 
and comment rulemaking and this rule simply restores that same fee 
schedule now that Congress has reinstated the legal authority for the 
Service to collect fees at these levels.
    Since section 107 of the Homeland Security Act Amendments of 2003 
is effective upon enactment, and the past hiatus in funding the asylum 
and fee waiver programs has the potential for causing disruption of 
those programs, this rule is made effective upon publication. This rule 
merely restores the preexisting fee structure after a short lapse in 
statutory authority, and the surcharges set by this rule are needed in 
order to be able to fund asylum and refugee, fee waiver and exemption, 
and other humanitarian programs. It would be impracticable and contrary 
to the public interest to make this interim final rule effective 30 
days after publication in the Federal Register.

Regulatory Flexibility Act

    The Acting Commissioner, Immigration and Naturalization Service, 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 majority 
of applications and petitions are submitted by individuals and not 
small entities as that term is defined in 5 U.S.C. 601(6).
    The Service acknowledges that a number of small entities, 
particularly those filing business-related applications and petitions, 
such as Form I-140, Immigrant Petition for Alien Worker; Form I-526, 
Immigrant Petition by Alien Entrepreneur; and Form I-829, Petition by 
Entrepreneur to Remove Conditions, may be affected by this rule. For FY 
2003, the INS projects approximately 110,000 Forms I-140, 300 Forms I-
526, and 200 Forms I-829 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 Service does 
not collect data on the size of the businesses filing petitions, and 
therefore does not know the number of small businesses that may be 
affected by this rule. However, even if all of the employers applying 
for benefits met the definition of small businesses, the resulting 
degree of economic impact would not require a Regulatory Flexibility 
Analysis to be performed.

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 affect 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 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 rule has been submitted to the Office of 
Management and Budget (OMB) for review.
    The Service has assessed both the costs and benefits of this rule 
as required by section 1(b)(6) of Executive Order 12866 and has made a 
determination that although restoring the surcharge will increase the 
costs to individual applicants and petitioners who submitted 
applications or petitions to the Service for adjudication, the benefit 
to other applicants and the public interest of the Service being able 
to continue to provide asylum, refugee, and other humanitarian programs 
at the funding levels intended by Congress through its repeal of 
section 457 substantially exceeds the costs.
    The determination of the economic impact of the restoration of the 
immigration benefit application fee schedule to the levels that existed 
prior to January 24, 2003 depends on the baseline used for comparison. 
Although the difference in the fees collected would exceed $100 million 
a year if compared to the fees contained in the schedule made effective 
on January 24, 2003, that fee schedule is not the appropriate baseline 
for purposes of determining whether this rule has a economically 
significant regulatory impact under Executive Order 12866. By striking 
section 457 of the Homeland Security Act of 2002, Congress has 
indicated that the Service should return to the fee schedule in place 
prior to January 24, 2003. This interim rule merely restores the 
previous fee schedule. Using the pre-January 24th fee schedule as a 
baseline, this interim rule will not have a significant economic 
impact.

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, the Department of Justice has 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 rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

    This rule requires that the fees for application and petition forms 
identified in this interim rule be increased in light of section 107 of 
Homeland Security Act Amendments of 2003. Since this is merely a 
reinstatement of fees prior to Section 457 of Public Law 107-296, the 
net effect of the cost burden on the public is negligible, the Service 
has submitted

[[Page 8992]]

the required Paperwork Reduction Change Worksheet (OMB-83C) to the OMB 
reflecting the new fees and cost burdens on the public, and the OMB has 
approved the changes.
    To ensure that the public is fully aware of these changes the new 
fees will be highlighted on the Service's Web site at: 
www.ins.usdoj.gov.

List of Subjects in 8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(government agencies), 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 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, 552(a); 8 U.S.C. 1101, 1103, 1304, 
1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874, 15557; 3 CFR, 1982 
Comp., p.166; 8 CFR part 2.


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


Sec.  103.7  Fees.

* * * * *
    (b) * * *
    (1) * * *
* * * * *
    Form I-17. For filing a petition for school approval or 
recertification--$580 plus $350 per additional campus listed on Form I-
17B.
* * * * *
    Form I-90. For filing an application for a Permanent Resident 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--$130.
* * * * *
    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--$100.
    Form I-129. For filing a petition for a nonimmigrant worker, a base 
fee of $130. For filing an H-1B petition a base fee of $130 plus an 
additional $1,000 fee in a single remittance of $1,130. The remittance 
may be in the form of one or two checks (one in the amount of $1,000 
and the other in the amount of $130). Payment of this additional $1,000 
fee is not waivable under Sec.  103.7(c)(1). Payment of this additional 
$1,000 fee is not required if an organization is exempt under Sec.  
214.2(h)(19)(iii) of this chapter, and this additional $1,000 fee also 
does not apply to certain filings by any employer as provided in Sec.  
214.2(h)(19)(v) of this chapter.
    Form I-129F. For filing a petition to classify nonimmigrant as 
fianc[eacute]e or fianc[eacute] under section 214(d) of the Act--$110.
    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--$130.
    Form I-131. For filing an application for travel documents--$110.
    Form I-140. For filing a petition to classify preference status of 
an alien on the basis of profession or occupation under section 204(a) 
of the Act--$135.
* * * * *
    Form I-191. For filing applications for discretionary relief under 
section 212(c) of the Act--$195.
    Form I-192. For filing an 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--$195.
    Form I-193. For filing an application for waiver of passport and/or 
visa--$195.
    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--
$195.
* * * * *
    Form I-485. For filing an application for permanent resident status 
or creation of a record of lawful permanent residence--$255 for an 
applicant 14 years of age or older--$160 for an applicant under the age 
of 14 years; no fee for an applicant filing as a refugee under section 
209(a) of the Act.
* * * * *
    Form I-526. For filing a petition for an alien entrepreneur--$400.
    Form I-539. For filing an application to extend or change 
nonimmigrant status--$140.
* * * * *
    Form I-600. For filing a petition to classify an 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.)--$460.
    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.)--$460.
    Form I-601. For filing an application for waiver of ground of 
inadmissibility under section 212(h) or (i) of the Act. (Only a single 
application and fee shall be required when the alien is applying 
simultaneously for a waiver under both those subsections.)--$195.
    Form I-612. For filing an application for waiver of the foreign-
residence requirement under section 212(e) of the Act--$195.
* * * * *
    Form I-751. For filing a petition to remove the conditions on 
residence, based on marriage--$145.
    Form I-765. For filing an application for employment authorization 
pursuant to 8 CFR 274a.13--$120.
* * * * *
    Form I-817. For filing an application for voluntary departure under 
the Family Unity Program--$140.
* * * * *
    Form I-824. For filing for action on an approved application or 
petition--$140.
    Form I-829. For filing a petition by entrepreneur to remove 
conditions--$395.
* * * * *
    Form N-400. For filing an application for naturalization--$260.
* * * * *
    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(c) 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(b) of the Act--$155.
    Form N-600. For filing an application for a certificate of 
citizenship under section 309(c) or section 341 of the Act--$185.
    Form N-643. For filing an application for a certificate of 
citizenship on behalf of an adopted child--$145.
* * * * *

    Dated: February 25, 2003.
Michael J. Garcia,
Acting Commissioner, Immigration and Naturalization Service.
[FR Doc. 03-4747 Filed 2-25-03; 11:36 am]
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