[Federal Register Volume 71, Number 99 (Tuesday, May 23, 2006)]
[Rules and Regulations]
[Pages 29571-29574]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-4754]


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DEPARTMENT OF HOMELAND SECURITY

U.S. Citizenship and Immigration Services

8 CFR Part 103

[DHS Docket No. USCIS-2005-0038; CIS No. 2367-05]
RIN 1615-AB40


Changes to the Procedures for Notifying the Public of Premium 
Processing Service Designations and Availability

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule amends Department of Homeland Security 
regulations to change the process whereby U.S. Citizenship and 
Immigration Services will notify the public of the dates and conditions 
for Premium Processing Service of designated employment-based petitions 
and applications. This interim rule also clarifies that notices 
announcing the designation of petitions and applications for Premium 
Processing Service will identify the individual classifications within 
each designated petition or application that will be eligible for 
premium processing.

DATES: Effective date: This interim rule is effective May 23, 2006.
    Comment date: Written comments must be submitted on or before July 
24, 2006.

ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS 
2005-0038, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: You may submit comments directly to USCIS by e-
mail at [email protected]. Include DHS Docket No. USCIS-2005-0038 in the 
subject line of the message.
     Mail: The Director, Regulatory Management Division, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529. To 
ensure proper handling, please reference DHS Docket No. USCIS-2005-0038 
on your correspondence. This mailing address may also be used for 
paper, disk, or CD-ROM submissions.
     Hand Delivery/Courier: U.S. Citizenship and Immigration 
Services, Department of Homeland Security, 111 Massachusetts Avenue, 
NW., 3rd Floor, Washington, DC 20529. Contact Telephone Number is (202) 
272-8377.

FOR FURTHER INFORMATION CONTACT: Kristina Carty-Pratt, Adjudications 
Officer, Office of Program and Regulations Development, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
111 Massachusetts Avenue, NW., Washington, DC 20536. Contact Telephone 
Number (202) 272-8400.

SUPPLEMENTARY INFORMATION:

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of the 
interim rule. Comments that will provide the most assistance to U.S. 
Citizenship and

[[Page 29572]]

Immigration Services (USCIS) in developing these procedures will 
reference a specific portion of the interim rule, explain the reason 
for any recommended change, and include data, information, or authority 
that support such recommended change.
    Instructions: All submissions received must include the agency name 
and DHS docket No. USCIS-2005-0038 for this rulemaking. All comments 
received will be posted without change to http://www.regulations.gov, 
including any personal information provided. See ADDRESSES above for 
information on how to submit comments.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov. Submitted comments 
may also be inspected at the office of the Director, Regulatory 
Management Division, U.S. Citizenship and Immigration Services, 
Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd 
Floor, Washington, DC 20529.

II. Background

    The District of Columbia Appropriations Act of 2001 added section 
286(u) to the Immigration and Nationality Act (INA), 8 U.S.C. 1356(u), 
authorizing the collection of a $1,000 ``premium fee,'' in addition to 
the regular filing fee, from persons seeking expedited processing of 
eligible employment-based petitions and applications. See District of 
Columbia Appropriations Act of 2001, Public Law 106-553, tit. I, sec. 
112, 114 Stat. 2762, 2762A-68 (Dec. 21, 2000). Based upon this 
statutory authority, the former Immigration and Naturalization Service 
issued an interim rule establishing its Premium Processing Service on 
June 1, 2001. See 66 FR 29682.
    Under the Premium Processing Service, in exchange for the $1,000 
premium processing fee, USCIS guarantees that designated petitions and 
applications will be processed within 15 calendar days. 8 CFR 
103.2(f)(1). USCIS regulations state that USCIS will designate the 
petitions and applications eligible for the Premium Processing Service 
by notices published in the Federal Register. 8 CFR 103.2(f)(2). This 
interim rule amends USCIS regulations to change the information 
required to be included in the designation notices and to state USCIS' 
intention to inform the public by announcements on its Web site of the 
dates of availability, or termination, of Premium Processing Service 
for individual petitions, applications or classifications of aliens 
within such documents.

III. Notification of Premium Processing Service Designations and 
Availability

A. Designating Classifications Within Designated Petitions and 
Applications by Federal Register Notice

    The preamble to the June 2001 interim rule establishing the Premium 
Processing Service filing requirements states that USCIS will specify 
the forms and visa classifications that will be eligible for premium 
processing, as well as the dates on which the availability of Premium 
Processing Service will begin and end.\1\ 66 FR at 29683. Today's 
interim rule codifies USCIS' practice of specifying in the designation 
notice which visa classifications within designated petitions and 
applications are eligible for Premium Processing. See Revised 8 CFR 
103.2(f)(2). USCIS is adding this requirement to the regulations to 
ensure that the public consistently receives complete information 
regarding each designation.
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    \1\ ``Form type'' is a phrase USCIS uses to describe the form 
number assigned to the petition or application. For example, the 
form type for the ``Petition for Nonimmigrant Worker'' is Form I-
129. ``Visa classifications'' is a phrase that USCIS uses to refer 
to categories of aliens whom Congress has identified by statute as 
permitted to seek immigrant or nonimmigrant status in the United 
States. See INA sec. 203, 8 U.S.C. 1153 (immigrants); INA sec. 
101(a)(15), 8 U.S.C. 1101(a)(15) (nonimmigrants). For example, an 
alien seeking to come to the United States temporarily to perform 
services in a specialty occupation would fall within the ``H-1B'' 
nonimmigrant visa classification, authorized by section 
101(a)(15)(H)(i)(b) of the INA, 8 U.S.C. 1101(a)(15)(H)(i)(b).
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    Further, under this interim rule, USCIS will specify in the 
designation notice the ``classifications'' within the designated 
petitions and applications that are eligible for Premium Processing 
Service, rather than only ``visa classifications.'' This change is 
necessary to take into account the fact that not all petitions and 
applications are filed on the basis of a visa classification. For 
example, the Form I-765 ``Application for Employment Authorization'' 
may be filed by aliens who have a pending application to adjust status 
to that of a lawful permanent resident. This classification does not 
correspond to a particular visa classification.
    USCIS regulations also currently state that USCIS will announce a 
decision to terminate Premium Processing Service by notice published in 
the Federal Register. This interim rule amends the regulations to state 
that USCIS also will specify individual classifications within 
petitions and applications for which USCIS has terminated eligibility 
for Premium Processing Service. See Revised 8 CFR 103.2(f)(2).

B. Web Site Notification of Dates and Conditions of Premium Processing 
Service Availability

    Currently, USCIS announces the date that Premium Processing Service 
will become available for designated forms in the designation notices 
published in the Federal Register. See 66 FR at 29683. This rule states 
USCIS' intention to announce the date of availability of Premium 
Processing Service for specific forms, or classifications within the 
forms, by USCIS' public Web site (http://www.uscis.gov) rather than 
including that information in the designation notice published in the 
Federal Register. Revised 8 CFR 103.2(f)(2). This process allows for 
more flexibility for USCIS in beginning or ending the availability of 
Premium Processing Service and maximizes public access to this 
information.
    The public frequently turns to the USCIS Web site for information. 
The USCIS Web site receives millions of hits per month. The public uses 
the USCIS Web site for general information on immigration benefits 
rules and processes, statutes and regulations, downloading immigration 
forms, specific case status information, and processing times at the 
various service centers and district offices. Some members of the 
public sign up for e-mail alerts that provide the latest information 
posted on the USCIS Web site regarding particular applications, 
petitions, or visa classifications. Because of the wide use of the Web 
site by the public, USCIS believes that posting information on the 
dates of availability for, or termination of, Premium Processing 
Service for specific petitions and applications on USCIS' Web site 
would be a more timely and efficient method of disseminating such 
information to the public.
    Accordingly, this rule amends 8 CFR 103.2(f)(2) to state USCIS' 
intention to post on its Web site the beginning and ending dates of 
availability for Premium Processing Service for the petitions and 
applications, and classifications within such petitions and 
applications, that USCIS previously designated by notice published in 
the Federal Register.
    This rule also announces that USCIS will post any conditions that 
it determines are necessary to impose on the availability of Premium 
Processing Service. This change will accord USCIS the flexibility to 
adapt to contingencies affecting its ability to provide Premium 
Processing Service. For example, USCIS may need to suspend the 
availability of Premium Processing Service for certain applications or 
petitions, or for certain classifications within designated 
applications or petitions, in the event

[[Page 29573]]

that USCIS receives a flood of requests for the service and determines 
that it will not be able to handle new requests until the pending 
requests are processed. USCIS also may need to suspend the availability 
of Premium Processing Service in emergent situations that require USCIS 
to redirect its resources, such as when a new law requires USCIS to 
extend immigration benefits to large classes of individuals within a 
short timeframe. This rule affords USCIS the flexibility to adapt 
quickly when these various contingencies arise while providing the 
public with adequate notice of any impact on Premium Processing Service 
availability.
    As a result of this amendment to 8 CFR 103.2(f)(2), a designation 
for Premium Processing Service eligibility in a Federal Register notice 
will no longer mean that the public can immediately request Premium 
Processing Service for a particular application or petition. Rather, 
the public will need to refer to the USCIS public Web site to determine 
when USCIS will begin to accept requests for Premium Processing Service 
for the new designation. By this change, applicants and petitioners 
relying on information that USCIS posts on its Web site concerning the 
availability of Premium Processing Service will have confidence that 
the information is timely and accurate, and that their resulting 
request for Premium Processing Service will not be rejected based on 
timeliness.

C. Technical Change

    This rule makes one technical change to 8 CFR 103.2(f)(2). It 
replaces the reference to ``Service'' with ``USCIS.'' ``Service'' 
refers to the former Immigration and Naturalization Service. The 
administration of Premium Processing Service was transferred from the 
former Immigration and Naturalization Service to USCIS on March 1, 
2003. See Homeland Security Act of 2002, Public Law 107-296, sections 
451(b) & 471, 116 Stat. 2135, 2196, 2205 (codified as amended at 6 
U.S.C. 271(b) & 291(a)). This amendment to 8 CFR 103.2(f)(2) is 
necessary to reflect the transfer of this function.

IV. Regulatory Requirements

A. Administrative Procedure Act

    USCIS has determined that the public notice and comment 
requirements of the Administrative Procedure Act (APA), 5 U.S.C. 
553(b), do not apply to this rule because the rule is procedural in 
nature and does not alter the substantive rights of the affected 
parties. Therefore, this rule satisfies the exemption from notice and 
comment rulemaking in 5 U.S.C. 553(b)(A). USCIS nevertheless invites 
comments on this rule and will consider all timely comments in the 
preparation of a final rule.
    Premium Processing Service is an established USCIS program. This 
rule is limited to modifying how USCIS will notify the public of 
Premium Processing Service availability and requiring more specificity 
in notifications. It does not modify any of the eligibility 
requirements for Premium Processing Service, nor does it modify the 
standards under which USCIS will grant a request from the public for 
Premium Processing Service.
    USCIS expects that this rule will further the public's interest in 
receiving timely processed employment-based immigration benefits. The 
rule requires that USCIS provides more detailed information to the 
public regarding the availability of Premium Processing Service to new 
petitions and applications. Also, by permitting USCIS to post 
availability information on its popular Web site, the public will be 
informed of changes to Premium Processing Service as those changes 
occur. This will allow the public to seek the benefits of the service 
more quickly, including U.S. employers filling vacancies, individuals 
finding needed jobs, and dependent family members rejoining their loved 
ones.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 603(b)), as amended 
by the Small Business Regulatory Enforcement and Fairness Act of 1996 
(SBREFA), requires an agency to prepare and make available to the 
public a regulatory flexibility analysis that describes the effect of a 
proposed rule on small entities (i.e., small businesses, small 
organizations, and small governmental jurisdictions) when the agency is 
required ``to publish a general notice of proposed rulemaking for any 
proposed rule.'' Because this rule is being issued as an interim rule, 
on the grounds set forth above, a regulatory flexibility analysis is 
not required under the RFA.

C. Unfunded Mandates Reform Act of 1995

    This interim 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.

D. Small Business Regulatory Enforcement Fairness Act of 1996

    This interim rule is not a major rule as defined by section 251 of 
the Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. 
This rule will not result in (i) an annual effect on the economy of 
$100 million or more; (ii) a major increase in costs or prices; or 
(iii) significant adverse effects on competition, employment, 
investment, productivity, innovation, or on the ability of the United 
States-based companies to compete with foreign-based companies in 
domestic and export markets.

E. Executive Order 12866

    The Office of Management and Budget has determined that this rule 
is not a significant regulatory action under Executive Order 12866. 
Accordingly, this regulation has not been submitted to the Office of 
Management and Budget (OMB) for review.
    This rule does not place new costs or burdens on the public. The 
only modification this rule is making to Premium Processing Service is 
the location and specificity of information that USCIS will disseminate 
to the public concerning the availability of Premium Processing 
Service. This rule permits USCIS to use its Web site to notify the 
public of the availability of Premium Processing Service. The USCIS Web 
site is more readily accessible to the public than the current form of 
notification, which is by notice published in the Federal Register. 
Recognizing that not all members of the public utilize the Internet, 
USCIS will make available by telephone the same information contained 
on its Web site concerning Premium Processing Service availability. To 
obtain Premium Processing Service availability information, the public 
will be able to call the National Customer Service Center at 1-800-375-
5283.
    The changes made by this rule will benefit the public with overall 
improved customer service by allowing USCIS to disseminate to the 
public information related to Premium Processing Service quickly and 
efficiently. The changes also are expected to benefit USCIS by 
increasing its flexibility in the management of the service to 
accommodate contingencies as they arise.

F. 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

[[Page 29574]]

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.

G. Executive Order 12988

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

H. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, all 
Departments are required to submit to the Office of Management and 
Budget (OMB), for review and approval, any reporting requirements 
inherent in a rule. This interim rule does not impose any additional 
information collection burden or affect information currently collected 
by USCIS.

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. Section 103.2(f)(2) is revised to read as follows:


Sec.  103.2  Applications, petitions, and other documents.

* * * * *
    (f) * * *
    (2) Applications and petitions eligible for Premium Processing 
Service. USCIS will designate and terminate petitions and applications 
and classifications within such petitions and applications as eligible 
for Premium Processing Service by publication of notices in the Federal 
Register. USCIS will announce by its Web site at http://www.uscis.gov 
the dates upon which the availability of Premium Processing Service 
begins and ends for a designated petition or application and any 
designated classifications within a designated petition or application, 
and applicable conditions of availability.
* * * * *

    Dated: May 4, 2006.
Michael Chertoff,
Secretary.
[FR Doc. 06-4754 Filed 5-22-06; 8:45 am]
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