[Federal Register Volume 70, Number 166 (Monday, August 29, 2005)]
[Rules and Regulations]
[Pages 50954-50957]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17132]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Citizenship and Immigration Services
8 CFR Part 103
[CIS No. 2245-02 and Docket No. DHS-2004-0021]
RIN 1615-AA88
Adjustment of the Appeal and Motion Fees To Recover Full Costs
AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security.
ACTION: Final rule.
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SUMMARY: This rule adjusts the fee for filing appeals of, and motions
to reopen or reconsider, any decision under the immigration laws in any
type of proceeding other than those described at 8 CFR 1003.1(b), over
which the Board of Immigration Appeals (BIA) in the Department of
Justice (DOJ) has appellate jurisdiction. The rule also adds a non-
substantive modification to the language of the fee regulation in order
to enhance clarity.
This rule applies to fees for appeals and motions relating to the
types of cases under the jurisdiction of the Administrative Appeals
Office (AAO). The AAO is an appellate office of U.S. Citizenship and
Immigration Services (USCIS). The BIA remains a component of DOJ, and
has appellate jurisdiction over the orders of immigration judges,
denials of relative immigrant visa petitions (Form I-130), and
decisions involving administrative fines and penalties. This rule does
not apply to, or affect in any manner, the fees associated with the
BIA. Appeals from denials of all other types of applications, such as
Applications for Temporary Protected Status (Form I-821), and
petitions, such as Petitions for Amerasian, Widow(er), or Special
Immigrant (Form I-360), and any subsequently filed motions, are under
the jurisdiction of the AAO.
The fees, deposited into the Immigration Examinations Fee Account
(IEFA), are adjusted from $110 to $385 to recover the full costs
associated with the processing of an appeal, motion to reopen or motion
to reconsider. Federal statutes authorize USCIS to establish and
collect fees to recover the full cost of processing immigration benefit
applications, rather than supporting these services with tax revenue.
Finally, the rule replaces a reference in the regulations to an
obsolete form with a reference to the revised version of that form.
DATES: Effective Date: This final rule is effective September 28, 2005.
Compliance Date: Applications mailed, postmarked, or otherwise
filed, on or after September 28, 2005 require the new fee.
FOR FURTHER INFORMATION CONTACT: Paul Schlesinger, Director, Office of
Budget, U.S. Citizenship and Immigration Services, Department of
Homeland Security, 20 Massachusetts Avenue, NW., 4th Floor, Washington,
DC 20529, telephone (202) 272-1930.
SUPPLEMENTARY INFORMATION:
I. Introduction
USCIS published a proposed rule in the Federal Register on November
30, 2004, at 69 FR 69546, to adjust the fees for processing of an
appeal, motion to reopen or motion to reconsider. The proposed rule was
published with a 30-day comment period, which closed on December 30,
2004. USCIS received 14 comments pertaining to the adjustment of the
fees for processing of an appeal or motion to reopen or motion to
reconsider.
Comments were received from 13 concerned individuals and one
association. All of the relevant comments were carefully considered
before preparing this final rule. USCIS' responses to the concerns
raised by the commenters primarily are based upon the November 2002 fee
review report provided by KMPG Consulting.
The following is a discussion of the comments received for the
November 30, 2004 proposed rule and USCIS' response.
II. Summary of Comments
A. Why Is the Fee Increase Necessary?
Eight comments were received expressing dissatisfaction with the
size of the fee increase. Three commenters also stated that the
increase in appeals and motions of 12% over the last 10 years does not
justify the proposed increased fees. USCIS notes, however, that the fee
increase is not based upon the 12% increase in the filing of motions
and appeals. While the fees for other applications have increased more
than threefold during this time, the appeal and motion fee has remained
the same.
The increase in fees is necessary so that USCIS can recover the
full costs of processing appeals and motions.
Three commenters asserted that the increase in fees should also
increase the timeliness and quality of the decisions rendered.
Similarly, one commenter suggested that the AAO be added to the USCIS
backlog reduction plan, while another indicated support for the
proposed increase with the stipulation that the increase be used to
fund additional resources for the AAO.
USCIS agrees with commenters that the timeliness and quality of the
decisions is important, as are increases in personnel and resources and
notes that such considerations were taken into account during the fee
review. In response to the commenter's suggestion that the AAO be added
to the USCIS backlog reduction plan, we note that the AAO has been a
part of the backlog reduction plan since its inception. As indicated in
the proposed rule, based on the increase in motion and appeal filings
from 1993 to 2002, a fee review was conducted by a consulting firm to
determine the fee necessary to ensure that USCIS was able to collect
the full cost for processing motions and appeals. According to Office
of Management and Budget (OMB) Circular A-25, the ``full
[[Page 50955]]
cost'' includes direct and indirect personnel costs, physical overhead,
consulting, and other indirect costs (e.g., material and supply costs,
utilities, insurance, travel and rents), management and supervisory
costs, and the costs of collection, research, and regulation. Included
as part of the fee study was a determination of increased staffing
necessary to meet the President's 5-year goal of processing immigration
benefit applications in 6 months or less, as well as the cost of labor-
intensive activities such as legal research, decision writing, and
decision review.
Three commenters opposed the proposed fee increase because USCIS
provides no recourse to waive fees or refund fees in order to correct
an obvious error on the part of USCIS. Examples of obvious errors
include an erroneous finding that an appeal or motion was not timely
filed or an erroneous finding related to statutory eligibility such as
age or marital status. Additionally, one commenter suggested that USCIS
waive or refund fees when a decision is reversed on a motion to
reconsider due to USCIS error.
In response to these comments, USCIS notes that it does have the
authority to reopen a case sua sponte and utilizes this ability in
instances where, in its discretion, it determines that there is an
obvious error. An applicant may bring such an error to the attention of
the AAO, and the AAO may reopen the case on its own motion. In such
cases, the applicant does not need to submit any fee for the motion, so
that waiver of the fee or refund of the fee is not an issue. In
instances where an applicant pays a fee for a motion to reopen or
reconsider, without first attempting to resolve the error with the AAO,
the AAO may refund the fee if, in its discretion, it determines that
there clearly was an error in the AAO's original decision. Service
centers and district offices also have procedures in place to issue
refunds in certain instances where USCIS error can be demonstrated.
One commenter stated that the administrative costs for processing
one particular type of appeal should not be ``anything close to'' $385,
because the decisions of the AAO often ``fail to address the issues
presented, fail to provide any legal or factual analysis, fail to cite
any legal authority, inconsistently apply general principles to
identical factual situations, and completely disregard various
contractual obligations of the DHS.'' USCIS and the AAO are very
careful about the quality of appellate decisions. Decisions are
reviewed before issuance to ensure that there are no such failings.
Moreover, as indicated above and in the proposed rule, the $385 fee is
necessary to maintain USCIS appellate operations without passing costs
on to taxpayers.
B. Why Doesn't USCIS Charge a Lower Fee for Motions to Reconsider?
Five comments were received opposing the increase in fees for so-
called ``simpler'' appeals and motions to reconsider, while supporting
the fee increase for more complex appeals and motions to reopen. USCIS
does not accept the premise that there is a standard by which the
complexity of appeals can be measured, or that the differences between
the two types of motions can be apportioned in order to justify
separate fees.
USCIS regulations set forth a uniform appeals process. Appeals are
considered on a case-by-case basis. Each case has unique substantive
components that impact the ease or complexity of review. A motion to
reconsider can, in a particular case, consume more USCIS resources than
a motion to reopen. The process, however, is consistent throughout. In
each case, the adjudicating office initially reviews each Form I-290B
(Notice of Appeal to the AAO) on a case-by-case basis. The adjudicating
office then decides the next appropriate step (i.e., forward the matter
to AAO for review, re-adjudicate and approve, or re-adjudicate and
issue another request for evidence). Depending upon the timeframe and
action, additional background checks may also be required.
This procedure does not vary significantly by application or
petition type. It is true that in certain cases an application or
petition is not forwarded to the AAO for review, but the conclusion
that this path would mean a significantly lower administrative cost to
USCIS does not necessarily follow. A service center or district office,
after the preliminary review of the material provided, must complete
many of the same tasks normally completed by the AAO: Data entry,
additional review of the record, security checks, and issuance of a
decision. These offices may even have to issue an additional Request
For Evidence.
A more varied fee structure that accommodated perceived differences
in the degree of complexity for appeals would be more difficult to
administer and could, itself, increase costs. These increased costs
would necessarily be reflected in higher overall fees.
Although there are 66 separate petitions or applications which may
underlay the actual appeal or motion, because the processes for an
appeal and motion are similar, USCIS and the consulting firm treated
them similarly for purposes of the fee review and arrived at a
statistically meaningful average processing time due to the fact that
the appeals and motion process is singular as set forth in the
regulations.
Similarly, despite the fact that the regulations provide different
eligibility requirements for the filing of a motion to reopen versus a
motion to reconsider, because the process for filing and adjudicating
each motion is the same, a separate fee is not warranted. It is common
practice with other USCIS applications and petitions to charge one
standard application processing fee despite the fact that one
application or petition may be used for the adjudication of benefits
under several different statutory and/or regulatory provisions and may
require the demonstration of various, unique eligibility requirements.
For example, the Form I-485, Application to Register Permanent
Residence or Adjust Status, covers not only family as well as
employment-based and Diversity Visa adjustment of status, but also
adjustment under Registry, the Haitian Refugee Immigration Fairness Act
(HRIFA), the Nicaraguan Adjustment and Central American Relief Act
(NACARA), the Legal Immigration and Family Equity (LIFE) Act, the Cuban
Adjustment Act and others. The Form I-129, Petition for a Nonimmigrant
Worker, likewise covers change or extension of nonimmigrant status as
well as the beneficiary's eligibility for a variety of classifications
of nonimmigrant status. Nonetheless, one application processing fee is
charged. One fee will similarly be assessed for the Form I-290B.
Another commenter stated that, despite the statement to the
contrary in the proposed rule, the new fee will have a negative impact
on small businesses. The commenter challenges the validity of the small
business analysis in the proposed rule, and recommends that USCIS
``take into consideration the levels at which small companies are not
appealing denials.'' It would be possible for USCIS to examine the
percentage of denials for which no appeal is filed, but it would not be
practical or cost effective for USCIS to assess the extent to which the
fee for the appeal served as the basis for the decision to not file an
appeal. The Regulatory Flexibility Act portion of this rule discusses
more fully USCIS' perspective on how the appeal fee increase may or may
not affect the decision to pursue an appeal. The commenter also
recommended that the number of denials of Form I-129, Petition for
Nonimmigrant Worker, be included in the analysis of the effect of
[[Page 50956]]
this rule on small businesses. That recommendation has been adopted.
Another comment noted that the proposed rule failed to remove
reference to the obsolete Form I-290A in all pertinent areas of the
regulation. The commenter is incorrect, because the listing for the
Form I-290A in 8 CFR 103.7(b) was removed by the Final Rule published
April 15, 2004 (69 FR 20527).
Finally, several additional comments were received that were beyond
the scope of the proposed rule and, therefore, are not mentioned
herein.
Accordingly, this final rule implements the new fees as outlined in
the proposed rule, without substantive change. Any applications or
petitions mailed, postmarked, or otherwise filed, on or after September
28, 2005 will require the new fee.
III. Fee Adjustments
The fee adjustments, as adopted in this rule, are shown as follows:
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Description Fee
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Appeal/Motion Fee............................................ $385.00
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IV. Technical Improvements
This rule also clarifies that the fee amount of $385 also applies
when an appeal is filed based on the denial of a petition with multiple
beneficiaries, provided they are all beneficiaries of the same
petition, and therefore affected by the same decision. In so doing, it
corrects a transcription error in the Code of Federal Regulations in
1989 that failed to amend the fee amount from $50 to $110 for two or
more aliens when the aliens are covered by one decision at the same
time that the base fee (for one alien) was raised from $50 to $110, as
provided in the final rule dated April 4, 1989 (54 FR 13513). The error
resulted in an unintended discrepancy between the base fee, and the fee
for two or more aliens when the aliens are covered by one decision.
Notwithstanding this transcription error, the form instructions
reflected the proper fee amount. Accordingly, affected aliens have been
properly charged, and the former Immigration and Naturalization Service
as well as USCIS have collected the correct fee since the 1989
amendment. This rule corrects the discrepancy in 8 CFR 103.7(b)(1) and
brings this fee as properly amended ($50 to $110) from $110 to $385 so
that both fees are now equal as intended.
Finally, this final rule also makes a conforming change to 8 CFR
103.5(a)(1)(iii) to replace an obsolete reference to a withdrawn form,
Form I-290A, with a reference to Form I-290B.
Regulatory Flexibility Act
DHS has reviewed this regulation in accordance with 5 U.S.C.
605(b), and by approving it, DHS has determined that this rule will not
have a significant economic impact on a substantial number of small
entities since a majority of motions and appeals are submitted by
individuals and not small entities as that term is defined in 5 U.S.C.
601(6).
DHS acknowledges, however, that some small entities, particularly
those filing appeals of and/or motions to reopen or to reconsider
denials of business-related petitions, such as the Form I-140,
Immigrant Petition for Alien Worker; Form I-526, Immigrant Petition for
Alien Entrepreneur; Form I-129, Petition for Nonimmigrant Worker; and
Form I-829, Petition for Entrepreneur to Remove Conditions; may be
affected by this rule. USCIS does not collect data on the size of the
businesses filing appeals or motions related to employment-based
petitions, and therefore does not know the precise number of small
businesses that may be affected by this rule (as the majority of
petitions are filed by individuals). USCIS records indicate that the
following numbers of business-related petitions were denied during the
Fiscal Year 2003/2004 biennial period:
Form I-140, Immigrant Petition for Alien Worker (35,866 denials)
Form I-526, Immigrant Petition by Alien Entrepreneur (217 denials)
Form I-829, Petition by Entrepreneur to Remove Conditions (174 denials)
Form I-129, Petition for Nonimmigrant Worker (171,154 denials)
Based on these figures, the volume of denied petitions that might
be appealed to the USCIS over a two-year period is 207,411. During the
fiscal years 2003 and 2004, the AAO received approximately 50,000
appeals.
USCIS is unable to determine how many of these petitioners are
small businesses. In the past, some large employers have filed hundreds
of petitions in a single year. Therefore, the number of small entities
that have filed petitions and subsequently, appeals, is less than
207,411 and 50,000, respectively. Nevertheless, even assuming that all
of these petitioners were small entities, economic impact on those
businesses would not be substantial within the meaning of the
Regulatory Flexibility Act.
According to the Bureau of Labor Statistics, the average wage of a
worker in the United States in 2002 was $36,764. Cost to an employer
would include benefits, social security, payroll taxes and other items
not reflected in the wage itself.
It is reasonable to assume that a small business would be less
likely to expend resources pursuing appeals or litigating decisions
regarding lower-paid and less skilled immigrant employees. Accordingly,
small businesses which choose to file appeals on behalf of immigrant
employees are likely to do so only for more skilled, and therefore
higher paid, immigrant employees. Such employees, presumably, would be
paid in excess of the $36,764 average wage. Thus, the $275 increase in
fees imposed by this rule would represent well under one percent of the
total annual wage cost of the employee on whose behalf the pleading was
filed and would represent an even smaller percentage of the cost of the
employee's combined salary and benefits.
Moreover, based upon the appeals received by the AAO, we note that
the majority of small businesses impacted by this rule would have more
than one employee; in all probability, a minority of those employees
would require the filing of one of the pleadings impacted by this rule.
The overall economic impact of this rule on affected small businesses
would therefore amount to substantially less than one percent of
overall payroll and benefit expenses and an even smaller percentage of
overall revenues.
Accordingly, the degree of economic impact resulting from this rule
would not be deemed significant under the Regulatory Flexibility Act.
Therefore, an analysis of the economic impact on a substantial number
of small entities under 5 U.S.C. 603 is not required for this rule.
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 of costs or prices, significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based
[[Page 50957]]
companies to compete with foreign-based companies in domestic and
export markets.
Executive Order 12866
This rule is considered by DHS 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. DHS 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 increasing the
fee to $385 will increase the cost to the individual applicant and/or
petitioner, USCIS must establish and collect fees to recover the full
costs of processing immigration benefit applications, as required by
the authorizing statute, the INA. The implementation of this rule also
will provide USCIS with an additional $6.7 million in FY 2005 over the
fee revenue that would be collected under the current fee structure. If
USCIS does not adjust the current fees to recover the full costs of
processing immigration benefit applications, our programs will not be
fully funded and we will not be able to process applications in a
timely manner. Thus, the backlog will likely increase. The results of
the review showed that if the AAO's staffing increased, processing
times would likely meet the President's mandate regarding backlog
reduction. The revenue increase is based on USCIS costs and projected
volumes that were available at the time of this rule.
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, DHS 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
Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109
Stat. 163 (1995), all Departments are required to submit to OMB, for
review and approval, any reporting or record-keeping requirements
inherent in a rule. This rule does not impose any new reporting or
record-keeping requirements under the Paperwork Reduction Act.
However, it should be noted that USCIS solicited public comments on
the change of fees in the proposed rule that was published in the
Federal Register on November 30, 2004. Because the change to the fees
requires a change to Form I-290B, USCIS submitted a change request to
OMB indicating the fee change from $110 to $385. OMB has approved
changes to this form, consistent with the provisions in this final
rule. The fee change is now reflected on USCIS Form I-290B.
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.
0
Accordingly, part 103 of chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 103--POWERS AND DUTIES; AVAILABILITY OF RECORDS
0
1. The authority citation for part 103 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304,
1356; 31 U.S.C. 9701; Public Law 107-296, 116 Stat. 2135 (6 U.S.C. 1
et seq.); E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166;
8 CFR part 2.
0
2. In Sec. 103.5(a)(1)(iii), the introductory text is revised to read
as follows:
Sec. 103.5 Reopening or reconsideration.
(a) * * *
(1) * * *
(iii) Filing Requirements--A motion shall be submitted on Form I-
290B and may be accompanied by a brief. It must be:
* * * * *
0
3. Section 103.7(b)(1) is amended by:
0
a. Revising the entry for the form ``I-290B''; and by
0
b. Revising the fee ``$110'' to read ``$385'' wherever that fee appears
in the entry for ``Motion.''
The revision reads as follows:
Sec. 103.7 Fees.
* * * * *
(b) * * *
(1) * * *
* * * * *
Form I-290B. For filing an appeal from any decision under the
immigration laws in any type of proceeding over which the Board of
Immigration Appeals does not have appellate jurisdiction--$385.00 (the
fee will be the same when an appeal is taken from the denial of a
petition with one or multiple beneficiaries, provided that they are all
covered by the same petition, and therefore, the same decision).
* * * * *
Dated: August 22, 2005.
Michael Chertoff,
Secretary.
[FR Doc. 05-17132 Filed 8-26-05; 8:45 am]
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