[Federal Register Volume 75, Number 112 (Friday, June 11, 2010)]
[Proposed Rules]
[Pages 33446-33488]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13991]



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Part IV





Department of Homeland Security





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8 CFR Parts 103, 204, 244, et al.



U.S. Citizenship and Immigration Services Fee Schedule; Proposed Rule

  Federal Register / Vol. 75 , No. 112 / Friday, June 11, 2010 / 
Proposed Rules  

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 103, 204, 244, and 274A

[CIS No. 2490-09; DHS Docket No. USCIS-2009-0033]
RIN 1615-AB80


U.S. Citizenship and Immigration Services Fee Schedule

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

ACTION: Proposed rule.

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SUMMARY: The Department of Homeland Security (DHS) proposes to adjust 
certain immigration and naturalization benefit fees charged by U.S. 
Citizenship and Immigration Services (USCIS). USCIS conducted a 
comprehensive fee study and refined its cost accounting process, and 
determined that current fees do not recover the full costs of services 
provided. Adjustment to the fee schedule is necessary to fully recover 
costs and maintain adequate service. DHS proposes to increase USCIS 
fees by a weighted average of 10 percent. DHS proposes among other 
amendments to add three new fees to cover USCIS costs related to 
processing the following requests: Regional center designation under 
the Immigrant Investor Pilot Program; Civil surgeon designation; and 
Immigrant visas.

DATES: Written comments must be submitted on or before July 26, 2010.

ADDRESSES: Comments, identified by DHS Docket No. USCIS-2009-0033, 
should be submitted by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Chief, Regulatory Products Division, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
111 Massachusetts Avenue, NW., Room 3008, Washington, DC 20529-2210. To 
ensure proper handling, please reference DHS Docket No. USCIS-2009-0033 
on the correspondence. This mailing address may also be used for paper, 
disk, or CD-ROM submissions.
     Hand Delivery/Courier: Regulatory Products Division, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
111 Massachusetts Avenue, NW., Room 3008, Washington, DC 20529-2210. 
Contact Telephone Number (202) 272-8377.

FOR FURTHER INFORMATION CONTACT: Timothy Rosado, Chief, Budget 
Division, U.S. Citizenship and Immigration Services, Department of 
Homeland Security, 20 Massachusetts Avenue, NW., Washington, DC 20529-
2130, telephone (202) 272-1930.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation
II. Legal Authority and Guidance
III. The Immigration Examinations Fee Account
    A. General Background
    B. Fee Review History
    C. USCIS Accomplishments Funded under the 2007 Fee Adjustment
    D. Processing Time Outlook
    E. FY 2008/2009 Fee Rule Enhancements
    F. Administration Policy
IV. FY 2010/2011 Immigration Examination Fee Account Fee Review
    A. Overall Approach
    B. Basis for Fee Schedule Changes
    1. Costs
    a. Baseline Adjustments
    b. Program Increase
    2. Revenue
    3. Refugee and Asylum Surcharge
    4. Military Naturalizations
    5. Proposed FY 2011 Appropriations for Systematic Alien 
Verification for Entitlements (SAVE) Program and the Office of 
Citizenship
    6. Establish an Immigrant Visa Processing Fee
    7. Civil Surgeon Program Fees
    8. EB-5 Regional Center Designation Fee
    9. Employment Authorization Document Fees for Applicants Covered 
by Deferred Enforced Departure (Form I-765)
    C. Summary
    D. Performance Improvements
V. Fee Review Methodology
    A. Background
    1. ABC Methodology
    a. Resources
    b. Resource Drivers and Resource Assignment
    c. Activities
    d. Activity Drivers and Activity Assignment
    e. Cost Objects
    2. Low Volume Reallocation
    3. Application for Naturalization
    B. Key Changes Implemented for the FY 2010/2011 Fee Review
    1. Appropriation for Refugee, Asylum, and Military 
Naturalization Benefits
    2. Fee Waivers and Exemptions
    3. Immigrant Visa Processing Fee
    4. EB-5 Regional Center Designation Fee
    5. Civil Surgeon Program
VI. Volume
VII. Completion Rates
VIII. Proposed Fee Adjustments
    A. Proposed Adjustments to IEFA Immigration Benefits
    B. Removal of Fees Based on Form Numbers
    C. Collection of Biometrics Fees Overseas
IX. Statutory and Regulatory Reviews
    A. Regulatory Flexibility Act
    B. Unfunded Mandates Reform Act
    C. Small Business Regulatory Enforcement Fairness Act
    D. Executive Order 12866
    E. Executive Order 13132
    F. Executive Order 12988
    G. Paperwork Reduction Act

List of Acronyms and Abbreviations

ABC--Activity-Based Costing.
AAO--Administrative Appeals Office.
AOP--Annual Operating Plan.
ASC--Application Support Centers.
BLS--Bureau of Labor Statistics.
CFO--Chief Financial Officer.
CLAIMS--Computer Linked Application Information System.
CNMI--Commonwealth of Northern Mariana Islands.
CPI-U--Consumer Price Index--Urban Consumers.
CHEP--Cuban Haitian Entrant Program.
CBP--U.S. Customs and Border Protection.
DED--Deferred Enforced Departure.
DOD--Department of Defense.
DHS--Department of Homeland Security.
DOL--Department of Labor.
DOS--Department of State.
DNB--Dun and Bradstreet.
EAD--Employment Authorization Document.
FASAB--Federal Accounting Standards Advisory Board.
FBI--Federal Bureau of Investigation.
FSM--Federated States of Micronesia.
FY--Fiscal Year.
FDNS--Fraud Detection and National Security.
FTE--Full-Time Equivalents.
GAO--Government Accountability Office.
IV--Immigrant Visa.
IEFA--Immigration Examinations Fee Account.
IT--Information Technology.
IBIS--Interagency Border Inspection System.
IO--International Operations.
NARA--National Archives and Records Administration.
OIS--Office of Immigration Statistics.
OIT--Office of Information Technology.
OMB--Office of Management and Budget.
PAS--Performance Analysis System.
PMB--Production Management Branch.
PPA--Program Project Activity Structure.
RAIO--Refugee, Asylum, and International Operations.
RFA--Regulatory Flexibility Act.
RMI--Republic of the Marshall Islands.
SLAs--Service Level Agreements.
SAM--Staffing Allocation Model.
SQA--System Qualified Adjudication.
SAVE--Systematic Alien Verification for Entitlements.
TPS--Temporary Protected Status.
TPO--Transformation Program Office.
TTPI--Trust Territory of the Pacific Islands.
USCIS--U.S. Citizenship and Immigration Services.
UMRA--Unfunded Mandates Reform Act.
USPHS--United States Public Health Service.
VPC--Volume Projection Committee.

I. Public Participation

    DHS invites interested persons to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of this 
proposed rule. Comments that will provide the most assistance to DHS 
will reference a specific portion of the proposed rule, explain the 
reason for

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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-2009-0033. All comments received will be 
posted without change to http://www.regulations.gov, including any 
personal information provided. Anonymous comments should be submitted 
to http://www.regulations.gov.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.
    The docket includes additional documents that support the analysis 
contained in this rule to determine the specific fees that are 
proposed. These documents include:
     FY 2010/2011 Fee Review Supporting Documentation; and
     Small Entity Analysis for Adjustment of the U.S. 
Citizenship and Immigration Services Fee Schedule.
    These documents may be reviewed on the electronic docket. The 
software used in computing the immigration benefit request and 
biometric fees is a commercial product licensed to USCIS that may be 
accessed on-site by appointment by calling (202) 272-1930.

II. Legal Authority and Guidance

    The Immigration and Nationality Act of 1952 (INA), as amended, 
provides for the collection of fees at a level that will ensure 
recovery of the full costs of providing adjudication and naturalization 
services, including services provided without charge to asylum 
applicants and certain other immigrant applicants. INA section 286(m), 
8 U.S.C. 1356(m).\1\ The INA provides that the fees may recover 
administrative costs as well. The fee revenue collected under section 
286(m) of the INA remains available to DHS to provide immigration and 
naturalization benefits and ensures the collection, safeguarding, and 
accounting of fees by USCIS. INA section 286(n), 8 U.S.C. 1356(n).
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    \1\ INA section 286(m), 8 U.S.C. 1356(m), provides, in pertinent 
part:
    Notwithstanding any other provisions of law, all adjudication 
fees as are designated by the [Secretary of Homeland Security] in 
regulations shall be deposited as offsetting receipts into a 
separate account entitled ``Immigration Examinations Fee Account'' 
in the Treasury of the United States, whether collected directly by 
the [Secretary] or through clerks of courts: Provided, however, * * 
*: Provided further, 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.
    Paragraph (n) provides that deposited funds remain available 
until expended ``for expenses in providing immigration adjudication 
and naturalization services and the collection, safeguarding and 
accounting for fees deposited in and funds reimbursed from the 
`Immigration Examinations Fee Account'.''
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    INA section 286(m), 8 U.S.C. 1356(m), contains both silence and 
ambiguity under Chevron USA, Inc. v. Natural Resources Defense Council, 
467 U.S. 837 (1984). Congress has not spoken directly, for example, to 
a number of issues present in this section, including the scope of 
application of the section or subsidizing operations from other 
fees.\2\ Congress has provided that USCIS recover costs ``including the 
costs of similar services'' provided to ``asylum applicants and other 
immigrants.'' Congress has not detailed the determination of what costs 
are to be included. Moreover, ``other immigrants'' has a broad meaning 
under the INA because the term ``immigrant'' is defined by exclusion to 
mean ``every alien except an alien who is within one of the following 
classes of nonimmigrant aliens.'' INA section 101(a)(15), 8 U.S.C. 
1101(a)(15). The extensive listing of exclusions from ``immigrant'' by 
the non-immigrant visa classes is replete with ambiguity evidenced by 
the detailed and complex regulations and judicial interpretations of 
those provisions.
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    \2\ Congress's intent in using individual terms, such as ``full 
cost,'' is clear, although the totality of the section is ambiguous.
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    Additionally, Congress provides appropriations for specific USCIS 
programs. Appropriated funding for FY 2010 included asylum and refugee 
operations (4th Quarter contingency funding), and military 
naturalization surcharge costs ($55 million); E-Verify ($137 million); 
immigrant integration ($11 million); REAL ID Act implementation ($10 
million); and data center consolidation ($11 million). Department of 
Homeland Security Appropriations Act, 2010, Public Law 111-83, title 
IV, 123 Stat. 2142, 2164--5 (Oct. 28, 2009) (DHS Appropriation Act 
2010). Providing these limited funds against the backdrop of the broad 
immigration examinations fee statute--together forming the totality of 
funding available for USCIS operations--requires that all other costs 
relating to USCIS and adjudication operations are funded from fees.
    When no appropriations are received, or fees are statutorily set at 
a level that does not recover costs, or DHS determines that a type of 
application should be exempt from payment of fees, USCIS must use funds 
derived from other fee applications to fund overall requirements and 
general operations. For example, when a fee such as Temporary Protected 
Status (TPS), set by statute at $50, does not cover the cost of 
adjudicating the TPS application, the excess cost must be recovered by 
fees charged to other applications. INA section 244(c)(1)(B), 8 U.S.C. 
1254a(c)(1)(B). Furthermore, when a policy decision is made by 
regulations, for example, to exempt aliens who are victims of a severe 
form of trafficking in persons and who assist law enforcement in the 
investigation or prosecution of the acts of trafficking (T Visa), and 
aliens who are victims of certain crimes and are being helpful to the 
investigation or prosecution of those crimes (U Visa), from visa fees, 
the cost of processing those fee-exempt visas must be recovered by fees 
charged against other applications. INA sections 101(a)(15)(T), (U), 
214(o), (p), 8 U.S.C. 1101(a)(15)(T), (U), and 1184(o), (p); 8 CFR 
214.11, 214.14, 103.7(c)(5)(iii); Adjustment of Status to Lawful 
Permanent Resident for Aliens in T or U Nonimmigrant Status, 73 FR 
75540 (Dec. 12, 2008).
    The proposed rule follows initial steps taken by the Administration 
within enacted FY 2010 appropriations for USCIS fee reform that moved 
some asylum, refugee, and military naturalization costs out of the fee 
structure. The purpose of this fee reform is to improve the linkage 
between fees paid by USCIS applicants and petitioners and the cost of 
programs and activities to provide immigration benefits. Because of fee 
exemptions for beneficiaries of asylum, refugee, and military 
naturalization, fee surcharges were added to other applications and 
petitions. 72 FR 29859. Similarly, costs of SAVE and the Office of 
Citizenship are currently only partially supported by fee revenue. 
Additional fee reform in these areas moves these costs out of the USCIS 
fee structure and improves the transparency of USCIS fees. 
Nevertheless, while USCIS has calculated its fees as much as possible 
to bear a relationship with the effort expended to carry out the 
adjudication, fees are the prevalent source of USCIS funding.\3\
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    \3\ INA section 286(m), 8 U.S.C. 1356(m), provides broader fee-
setting authority and is an exception from the stricter costs-for-
services-rendered requirements of the Independent Offices 
Appropriations Act, 1952, 31 U.S.C. 9701(c) (IOAA); see Seafarers 
Intern. Union of North America v. U.S. Coast Guard, 81 F.3d 179 (DC 
Cir. 1996) (IOAA provides that expenses incurred by agency to serve 
some independent public interest cannot be included in cost basis 
for a user fee, although agency is not prohibited from charging 
applicant full cost of services rendered to applicant which also 
results in some incidental public benefits). Congress initially 
enacted immigration fee authority under the IOAA. See Ayuda, Inc. v. 
Attorney General, 848 F.2d 1298 (DC Cir. 1988). Congress thereafter 
amended the relevant provision of law to require deposit of the 
receipts into the separate Immigration Examinations Fee Account of 
the Treasury as offsetting receipts to fund operations, and 
broadened the fee setting authority. Departments of Commerce, 
Justice, and State, the Judiciary, and Related Agencies 
Appropriations Act, 1991, Public Law 101-515, sec. 210(d), 104 Stat. 
2101, 2111 (Nov. 5, 1990). Additional values are considered in 
setting Immigration Examinations Fee Account fees that would not be 
considered in setting fees under the IOAA. See 72 FR at 29866--7.

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    DHS works with the Office of Management and Budget (OMB) and 
follows the guidance provided by OMB Circular A-25, establishing 
Federal policy guidance regarding fees assessed by Federal agencies for 
government services. OMB Circular A-25, User Charges (Revised), par. 6, 
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58 FR 38142 (July 15, 1993). Circular A-25 provides that:

    [i]t is the objective of the United States Government to:
    a. Ensure that each service, sale, or use of Government goods or 
resources provided by an agency to specific recipients be self-
sustaining;
    b. Promote efficient allocation of the Nation's resources by 
establishing charges for special benefits provided to the recipient 
that are at least as great as costs to the Government of providing 
the special benefits; and
    c. Allow the private sector to compete with the Government 
without disadvantage in supplying comparable services, resources, or 
goods where appropriate.

Id, par. 5. In summary, one objective of Circular A-25 ensures that 
Federal agencies recover the full costs of providing specific services 
to users and associated costs. Full costs include, but are not limited 
to, an appropriate share of:

     Direct and indirect personnel costs, including salaries 
and fringe benefits such as medical insurance and retirement;
     Physical overhead, consulting, and other indirect costs, 
including material and supply costs, utilities, insurance, travel, and 
rents or imputed rents on land, buildings, and equipment;
     Management and supervisory costs; and
     The costs of enforcement, collection, research, 
establishment of standards, and regulation.

Id. par. 6d1. INA section 286(m), 8 U.S.C. 1356(m), provides DHS 
broader discretion to include other costs.

    OMB Circular A-25 advises that fees should be set to recover these 
costs in their entirety. Full costs are determined based upon the best 
available records of the agency. Id. See also OMB Circular A-11, 
section 20.7(d), (g) (August 7, 2009, revised November 16, 2009) (FY 
2011 budget formulation and execution policy regarding user fees), 
found at http://www.whitehouse.gov/omb/assets/a11_current_year/a_11_2009.pdf. DHS and OMB use OMB Circular A-25 as the overall policy 
guidance for determining the activity based costing that forms a base 
for the ultimate decisions on appropriate fee amounts, and, in 
conjunction with OMB Circular A-11, issued each budget cycle, 
determining appropriate requests for appropriations that may offset a 
portion of the totality of fee recovery.
    OMB Circulars A-11 and A-25 provide internal Executive Branch 
direction for the development of appropriation requests and fee 
schedules (under the IOAA), but are adapted here to the activity based 
costing methodology that forms the nucleus for the proposed fee 
schedule. These internal directions remain at the discretion of the 
President and the Director of OMB. 5 CFR 1310.1.
    DHS also conforms to the requirements of the Chief Financial 
Officers Act of 1990 (CFO Act), 31 U.S.C. 901-03, requiring that each 
agency's Chief Financial Officer (CFO) ``review, on a biennial basis, 
the fees, royalties, rents, and other charges imposed by the agency for 
services and things of value it provides, and make recommendations on 
revising those charges to reflect costs incurred by it in providing 
those services and things of value.'' Id. at 902(a)(8). This proposed 
rule reflects recommendations made by the DHS CFO and USCIS CFO.
    When developing proposed fees, USCIS reviews, to the extent 
applicable, cost accounting concepts and standards recommended by the 
Federal Accounting Standards Advisory Board (FASAB). The FASAB defines 
``full cost'' to include ``direct and indirect costs that contribute to 
the output, regardless of funding sources.'' FASAB, Statement of 
Financial Accounting Standards No. 4: Managerial Cost Accounting 
Concepts and Standards for the Federal Government 36 (July 31, 1995). 
To determine the full cost of a service or services, FASAB identifies 
various classifications of costs to be included and recommends various 
methods of cost assignment. Id. at 33-42. DHS proposes complete funding 
of existing services and specific allocation methods.
    Accordingly, DHS applies the discretion provided in INA section 
286(m), 8 U.S.C. 1356(m), to (1) develop activity based costing to 
establish basic fee setting parameters that are consistent to the 
extent practical with OMB Circular A-25, (2) applies administrative 
judgment to spread those overhead and other costs that are not driven 
by the cost of services, and (3) applies policy judgments to effectuate 
the overall Administration policy.\4\ The ``full'' cost of operating 
USCIS, less any appropriated funding, has been the historical total 
basis for establishing the cost basis for the fees, and Congress has 
consistently recognized this concept on annual appropriations. This 
proposed rule reflects the authority granted to DHS by INA section 
286(m) and other statutes.
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    \4\ DHS may reasonably adjust fees based on value judgments and 
public policy reasons where a rational basis for the methodology is 
propounded in the rulemaking. See FCC v. Fox Television Stations, 
Inc., 556 U.S. ---, --, 129 S.Ct. 1800, 1811 (2009); Motor Vehicle 
Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).
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III. The Immigration Examinations Fee Account

A. General Background

    In 1988, Congress established the Immigration Examination Fee 
Account (IEFA). Public Law 100-459, section 209, 102 Stat. 2186 (Oct. 
1, 1988), enacting, after correction, INA sections 286(m) and (n), 8 
U.S.C. 1356(m) and (n). Fees deposited into the IEFA fund the provision 
of immigration and naturalization benefits and other benefits as 
directed by Congress. In subsequent legislation, Congress directed that 
the IEFA also fund the cost of asylum processing and other services 
provided to immigrants at no charge. Public Law 101-515, sec. 210(d)(1) 
and (2), 104 Stat. 2101, 2121 (Nov. 5, 1990). Consequently, the 
immigration benefit fees were increased to recover these additional 
costs. See 59 FR 30520 (June 14, 1994).

B. Fee Review History

    USCIS conducted a comprehensive fee review in 2007 and promulgated 
a revised fee schedule that amended many of the fees charged by USCIS 
to more accurately reflect the costs of the services provided by USCIS. 
72 FR 29851 (May 30, 2007) (final rule) (FY 2008/2009 Fee Rule).\5\ The 
2007 final rule was effective on July 30, 2007, covering FY 2008 and FY 
2009. The documentation accompanying this rule in the rulemaking docket 
at http://www.regulations.gov contains a historical fee schedule that 
shows the immigration benefit fee history since FY

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1985. The Immigration and Naturalization Service (INS) or USCIS also 
adjusted fees incrementally in 1994, 2002, 2004, and 2005. See, 
respectively, 59 FR 30520 (June 14, 1994); 66 FR 65811 (Dec. 21, 2001); 
69 FR 20528 (April 15, 2004); and 70 FR 56182 (Sep. 26, 2005). Prior to 
USCIS's 2007 review and update, the last comprehensive fee review was 
conducted by INS in 1998. 63 FR 43604 (Aug, 14, 1998).
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    \5\ FY 2008/2009 Fee Rule as used in this rule encompasses the 
proposed rule, final rule, fee study, and all supporting 
documentation associated with the regulations effective July 30, 
2007.
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    USCIS is committed to reviewing the IEFA every two years consistent 
with the biennial review standard of the CFO Act and guidance from OMB 
Circular A-25. The FY 2008/2009 Fee Rule followed nearly a decade 
without a comprehensive review of IEFA fees, and fees increased by a 
weighted average of 86 percent to recover both base costs and costs for 
improving operations and service-wide performance needs. By reviewing 
the IEFA every two years, USCIS is able to implement more moderate fee 
changes and avoid periods of inadequate revenue that typically precede 
large fee increases. Additionally, conducting a comprehensive review 
every two years will allow USCIS to incorporate the productivity gains 
achieved from investments in technology and modernization of agency 
operations. These investments should result in improved performance and 
lower costs.
    Table 1 sets out the current IEFA and biometric fee schedule.
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C. USCIS Accomplishments Funded Under the 2007 Fee Adjustment

    The 2007 adjustment to USCIS's fee schedule enabled USCIS to 
accomplish several critical service actions and improvements, including 
improved service delivery. The following are some of the key 
accomplishments:
     USCIS processed nearly 1.2 million naturalization 
applications in FY 2008, 56 percent more than FY 2007. As of March 
2010, approximately 262,000 naturalizations cases were pending--one of 
the lowest levels in recent history.
     A surge response plan implemented in FY 2008 enabled USCIS 
to meet nearly all FY 2008/2009 Fee Rule processing time goals by the 
end of FY 2009.
     In FY09 USCIS and the FBI effectively eliminated the 
National Name Check Program (NNCP) backlog. NNCP now is able to 
complete 98 percent of name check requests submitted by USCIS within 30 
days, and the remaining 2 percent within 90 days.
     Refugee admissions totaled 74,652 for FY 2009, a 25 
percent increase over the FY 2008 admissions level. This figure 
includes the processing of 18,833 Iraqi refugees, up from 13,000 in FY 
2008.
     USCIS is using System Qualified Adjudication (SQA) to 
electronically adjudicate some cases and determine those that require 
closer review. This improvement helps staff focus attention on more 
complex cases including those where discrepancies have been found. 
USCIS uses SQA on about 5 percent of immigration benefit requests.
     USCIS implemented a secure mail delivery process whereby 
USCIS delivers re-entry permits and refugee travel documents to 
applicants via the U.S. Postal Service Priority Mail. This process 
allows documents to be delivered in two to three days with delivery 
confirmation.
     USCIS is transitioning to a U.S. Department of the 
Treasury Lockbox provider and away from dispersed collection points to 
improve intake operations and control the timing of fee deposits. Two 
major forms--Form N-400, Application for Naturalization, and Form I-90, 
Application to Replace Permanent Resident Card--have already been 
centralized for filing at the Lockbox. Likewise, forms related to 
international adoptions that are filed domestically have been 
centralized for filing at the Lockbox: (Form I-800, Petition to 
Classify Convention Adoptee as an Immediate Relative; Form I-800A, 
Application for Determination of Suitability to Adopt a Child from a 
Convention Country; Form I-600, Petition to Classify Orphan as an 
Immediate Relative; and Form I-600A, Application for Advance Processing 
of Orphan Petition). USCIS centralized eight more application types in 
December 2009.
    In tandem with the additional capacity and efficiency improvements 
in the FY 2008/2009 Fee Rule, USCIS committed to reducing immigration 
benefit request processing times. Two performance goals were specified:
     Reduce processing times by the end of FY 2008 for four key 
benefits:

    [cir] Application to Register Permanent Residence or Adjust Status 
(Form I-485), from six months to four months;
    [cir] Application for Naturalization (Form N-400) from seven months 
to five months;
    [cir] Application to Replace Permanent Residence Card (Form I-90) 
from six months to four months; and
    [cir] Immigrant Petition for Alien Worker (Form I-140), from six 
months to four months.

     Achieve a 20 percent reduction in average application 
processing times by the end of FY 2009.
    During the period between the 2007 notice of proposed rulemaking 
and implementation of a final rule on July 30, 2007, USCIS received a 
substantial surge in immigration benefit requests. This surge more than 
doubled the number of naturalization applications received for the 
entire year--at the lower fee level which the fee study had found 
insufficient to cover the costs of processing those applications. 
Naturalization applications are very labor-intensive and the additional 
surge had a significant impact on USCIS resources.
    USCIS responded to the 2007 surge by rapidly adding capacity in 
2008 in excess of the increases planned in connection with the FY 2008/
2009 Fee Rule. Despite completing 1.6 million more requests than 
received during FY 2008, USCIS could not meet its processing time 
goals. As a result, all of the FY 2008 goals for key immigration 
benefits were postponed until the end of FY 2009. No change was made to 
the existing 20 percent processing time reduction goal slated to be 
reached by the end of FY 2009. USCIS achieved nearly all of the goals 
set for the FY 2008/2009 Fee Rule by the end of FY 2009.

D. Processing Time Outlook

    USCIS met or exceeded nearly all FY 2008/2009 Fee Rule processing 
time performance goals by the end of FY 2009. Processing time progress 
updates are posted monthly to the USCIS Web site. For the FY 2010/2011 
period, USCIS intends to ensure that the FY 2008/2009 Fee Rule average 
processing time goals are met and maintained. Wherever appropriate and 
feasible, USCIS aims to exceed target performance goals through 
existing staff levels, efficiency improvements, and systems 
modernization. USCIS does not plan to increase adjudication staffing 
levels and, in fact, has and will continue to reduce staff during the 
FY 2010/2011 biennial period based on current revenue trends and the 
institutional focus on countering fee increases to the extent possible.

E. FY 2008/2009 Fee Rule Enhancements

    Table 2 provides a status summary of all fee rule initiatives by 
program. USCIS set forth 43 enhancements and initiatives in the FY 
2008/2009 fee rule. See, e.g., 72 FR 4888 at 4898-4902 (Feb

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1, 2007); 72 FR 29851 at 29855 (May 30, 2007). USCIS has successfully 
implemented these enhancements and initiatives, and, of 43 initiatives, 
35 are complete.
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F. Administration Policy

    President Obama launched a multi-year effort in his fiscal year 
(FY) 2010 Budget to reform immigration fees. The purpose of reforming 
immigration fees is to improve the transparency and precision of how 
fees are determined and to develop, as a matter of discretion, fees 
that reflect more closely actual costs of adjudication and assignable 
associated costs. The President's FY 2010 Budget requested 
appropriations from Congress to allow USCIS to remove the surcharge for 
refugee and asylum program costs and military naturalizations. 
Additional steps to reform immigration fees have continued in the 
President's FY 2011 Budget request and in this proposed fee rule.
    DHS has calculated the proposed changes to the fee schedule based 
on the fee reform steps taken in the FY 2010 Budget and FY 2011 Budget 
request. These changes may require adjustment if USCIS's appropriation 
requests are not enacted or are reduced for FY 2011. Accordingly, DHS 
is proposing a range of fees to account for fee increases that would be 
necessary if the requested appropriations for FY 2011 are not enacted.

IV. FY 2010/2011 Immigration Examination Fee Account Fee Review

A. Overall Approach

    USCIS manages three fee accounts: The IEFA (which includes premium 
processing revenues set aside for infrastructure improvements by the 
Office of Transformation Coordination for near- and long-term 
investments to strategically improve USCIS operations),\6\ the Fraud 
Prevention and Detection Account (immigration benefit fraud),\7\ and 
the H-1B Nonimmigrant Petitioner Account.\8\ The Fraud Prevention and 
Detection account and the H-1B Nonimmigrant Petitioner Account are both 
funded by statutorily-set fees. The proceeds of these fees are used for 
fraud detection and prevention activities and to provide training for 
American workers in order to reduce employer reliance on nonimmigrant 
workers, respectively. DHS has no authority to adjust fees for these 
accounts.
---------------------------------------------------------------------------

    \6\ INA sections 286(m), (n), 8 U.S.C. 1356(m), (n).
    \7\ INA sections 214(c), 286(v), 8 U.S.C. 1184(c) 1356(v).
    \8\ INA sections 214(c), 286(s), 8 U.S.C. 1184(c), 1356(s).
---------------------------------------------------------------------------

    The IEFA account comprised approximately 95 percent of total 
funding for USCIS in FY 2009, excluding premium processing, and is the 
focus of this proposed rule. The FY 2010/2011 Fee Review encompasses 
three core elements:
     Cost Projections--The cost baseline is the estimated level 
of funding necessary to maintain an adequate level of operations and 
does not include program increases for new development, modernization, 
or acquisition. Proposed program increases are considered outside of 
the baseline. Cost projections for FY 2010/2011 are derived from the 
USCIS operating plan for FY 2010.
     Revenue Status and Projections--Actual revenue collections 
for FY 2009 are used to derive projections for the two-year period of 
the fee review based on current and anticipated trends.
     Cost and Revenue Differential--The difference between 
anticipated costs and revenue, assuming no change in fees, is 
identified.
    The primary objective of this fee review is to ensure immigration 
benefit request fee revenue provides sufficient funding to meet ongoing 
operating costs, including national security, customer service, and 
business adjudicative processing needs which are essential to provide 
immigration benefits and services.

B. Basis for Fee Schedule Changes

    When conducting the comprehensive fee review, USCIS reviewed its 
recent cost history, operating environment, and current service levels 
to determine the appropriate method to assign costs to particular form 
types. Overall, USCIS kept costs as low as possible and minimized non-
critical program changes that would increase costs.
1. Costs
a. Baseline Adjustments
    The cost baseline is comprised of the resources (such as personnel 
and

[[Page 33454]]

general expenses) necessary for each USCIS office to sustain 
operations. The baseline excludes new or expanded programs or 
significant policy changes. A detailed USCIS annual operating plan 
(AOP) is the starting point for baseline estimates.
    In developing estimates of program needs for FY 2010/2011, USCIS 
used the FY 2010 AOP as the starting point. In response to reduced 
workload and declining revenue during both FY 2008 and FY 2009, USCIS 
reduced baseline costs for FY 2010.
    Expenditures were reduced by $111 million in such areas as staffing 
and correspondingly reduced introductory training programs, overtime, 
and facilities improvement.
    These reductions were offset by necessary pay adjustments and 
increases to programs to maintain current services, particularly 
adjustments to programs that received one-time reductions during FY 
2009. Examples of necessary adjustments include:
     Pay inflation ($15.1 million in FY 2010 and $16.5 million 
in FY 2011). The assumed government-wide pay inflation rate for FY 2010 
and FY 2011 is 2 percent and 2.1 percent respectively;
     Within-grade pay step increases ($15.4 million in FY 2010 
and $16 million in FY 2011);
     Rent increases ($15.1 million in FY 2010 and $27.6 million 
in FY 2011). Rent increases as existing leases expire and are 
renegotiated. Rent is projected to increase by 9 percent in FY 2010 and 
15 percent in FY 2011. The increase in rent is attributable to several 
factors including the size of the facilities, the growth of USCIS, the 
timing of facility projects, and the cost of construction. Many 
facility projects that are scheduled for completion in FY 2010 
commenced in FY 2008. The additional space was acquired based on 
increased staffing levels (a direct result of the FY 2008/2009 Fee Rule 
enhancements). Outside of the acquisition of new facilities, annual 
rent costs increase due to higher operating costs (such as utilities) 
that USCIS must pay to the General Services Administration.
    Table 3 summarizes adjustments to the FY 2009 cost baseline, as 
well as the cost increases and decreases to reach the FY 2010 and FY 
2011 cost baselines. Overall, the IEFA cost baseline decreases by 
approximately 1.5 percent in FY 2010 from FY 2009 and increases by 2.7 
percent for FY 2011.
[GRAPHIC] [TIFF OMITTED] TP11JN10.007

b. Program Increase
    USCIS has included only one program increase, encompassing $30 
million in infrastructure funding to support the transformation of 
USCIS operations under its transformation program. To improve 
operational efficiency, enhance customer service, and increase national 
security, USCIS is centralizing and consolidating the electronic 
environments used for case processing and management and to standardize 
and improve business processes. A large portion of this effort is 
dedicated to developing and integrating information management systems. 
USCIS will migrate from a paper file-based, non-integrated systems 
environment to an electronic customer-focused, centralized case 
management environment for benefit processing. This transformation will 
allow USCIS to streamline benefit processing, eliminate the capture and 
processing of redundant data, and reduce the number of and automate its 
forms. This process will be a phased multi-year initiative to 
restructure USCIS business processes and related information technology 
systems.
    Direct transformation program costs are currently funded through 
premium processing fees. Some supporting infrastructure upgrades 
outside of the Transformation Program are necessary to enable 
implementation such as upgrades to existing network, communication, and 
supporting systems. USCIS is assuming a $30 million program increase 
each year, for a total of $60 million in additional costs over the fee 
review period.
2. Revenue
    During the fourth quarter of FY 2007, USCIS received over 2.5 
million filings, compared to 1.3 million received in the same period of 
FY 2006, as applicants attempted to file before the July 30, 2007 fee 
adjustment and in response to adjustments made by the Department of 
State (DOS) to its July 2007 visa bulletin. This filing surge created a 
delay in receipting, which led to an increase in revenue at the 
beginning of FY 2008. The additional applications received were charged 
lower pre-FY 2008/2009 Fee Rule fees. The increase in early filings 
meant that FY 2008 application levels were substantially below 
expectations. The decrease in FY 2008 filings began the last two 
quarters of FY 2008 and continued throughout FY 2009. IEFA revenue for 
FY 2008 was $75 million below the estimated FY 2008 projection of 
$2.329 billion, despite an estimated $300 million of FY 2007 
applications receipted in FY 2008. IEFA revenue for FY 2009 was $345 
million below the $2.329 billion projection.

[[Page 33455]]

    Actual FY 2009 IEFA revenue includes the revenue associated with 
the temporary protected status (TPS) registration that was not included 
in the FY 2008/2009 Fee Rule projections. In order to have a more 
reliable budget estimate upon which to base its fees, USCIS chose not 
to rely on temporary funding sources such as TPS that are subject to 
being discontinued annually. Therefore, USCIS cannot build TPS cost and 
revenue into long-term plans. Thus the fees proposed in this rule are 
based on the TPS Program for re-registrants of certain nationalities 
not continuing and their associated fees not being collected. When 
estimated TPS revenue of $120 million is factored out, the IEFA revenue 
was $465 million below the FY 2008/2009 Fee Rule projections.
    USCIS fee revenue collections are affected by many things including 
the economy, debate in Congress over immigration legislation, and 
business cycles. A significant downward trend in employment benefit 
receipts in FY 2009 suggests that the primary cause of reduced receipts 
was the downturn in the economy. Employment-based workload, adjustment 
of status and naturalization requests--both primary consumers of work 
hours and sources of revenue--were also significantly lower than FY 
2007 receipts. In addition, there is anecdotal evidence that there was 
a ``surge'' in the volume of certain applications, the Application for 
Naturalization in particular, just before the previous fee rule went 
into effect that may have had an impact on application volume in FY 
2009. The fee increase may have been the reasons for this surge, 
although other factors, such as the immigration legislation that was 
considered but not enacted by Congress in 2007, and the 2008 
Presidential election, are believed to have had an impact on filing 
volumes during FY 2008.
    Given the downward revenue trend for FY 2008 and FY 2009, USCIS has 
formulated conservative volume and revenue projections. Overall, this 
fee review assumes that baseline revenue will decline from an FY 2008/
2009 Fee Rule projection of $2.329 billion to $2.056 billion, a 
decrease of approximately 12 percent. This determination is based on a 
workload volume reduction from the FY 2008/2009 projections of 
approximately 1.6 million benefit requests (including biometrics) and a 
fee-paying volume reduction of 827,689. See 72 FR 29851. Table 4 
summarizes the projected cost differential.
[GRAPHIC] [TIFF OMITTED] TP11JN10.008

    Historically and for the purpose of the fee review, USCIS has 
reported costs and revenue using an average over the biennial time 
period. In Table 5, FY 2010 and 2011 costs and revenue are averaged to 
determine the projected fee rule revenue and cost amounts. Based on 
current immigration benefit and biometric service fees and projected 
volumes, fees are expected to generate $2.056 billion in annual revenue 
in FY 2010 and FY 2011. For the same period, the average cost of 
processing those benefit requests is $2.417 billion. This calculation 
results in an average annual deficit of $361 million.
3. Refugee and Asylum Surcharge
    The President's FY 2010 Budget requested $200 million to eliminate 
estimated asylum and refugee surcharges. See Office of Management and 
Budget, Budget of the United States Government, Fiscal Year 2010, at 
510-1 (2009), available at http://www.gpoaccess.gov/usbudget/fy10/pdf/appendix/dhs.pdf. Congress enacted $50 million for FY 2010, contingent 
upon conforming rulemaking to adjust the surcharges accordingly (i.e., 
the $50 million represents an annualized figure of $200 million, 
appropriated in the expectation that it will fund the final quarter of 
FY 2010 rather than the entire year). DHS Appropriation Act 2010, 123 
Stat. at 2164-5. Costs of refugee and asylum processing are currently 
borne by all fee-paying applicants as a surcharge applied to each fee-
paying immigration benefit request. See 72 FR at 29859 (all immigration 
benefit and petition fees include a total of $72 in ``surcharges'' to 
recover asylum and refugee costs, and fee waiver and exemption costs). 
While consistent with the Immigration and Nationality Act, this 
surcharge raises fees for those applying for other benefits. Estimated 
costs in these areas include:
     The budgets of both the Refugee and Asylum Divisions of 
the Refugee, Asylum, and International Operations (RAIO) Directorate, 
along with the cost of RAIO Headquarters;
     Five percent of the International Operations (IO) office, 
representing the portion of IO that completes refugee work;
     A proportionate share of overhead costs of USCIS; and
     The cost of the Cuban-Haitian Entrant Program.
    The $50 million appropriation enacted by Congress only replaces a 
portion of the surcharge for FY 2010 representing one-quarter of the 
fiscal year. DHS Appropriation Act 2010, 123 Stat. at 2164-5. President 
Obama requested an appropriation from Congress of $207 million to 
replace the full, annualized costs of these activities in FY 2011. 
Office of Management and Budget, Budget of the United States 
Government, Fiscal Year 2011, at 521-2 (2010) (2011 Budget Request), 
available at http://www.whitehouse.gov/omb/budget/fy2011/assets/dhs.pdf. If Congress enacts the requested FY 2011 appropriations, 
surcharges for this category of costs will be eliminated when this 
proposed rule is promulgated as a final rule and becomes effective. If 
the requested appropriation is not enacted, or a different amount is 
appropriated, the final rule will adjust the fee schedule accordingly. 
See Table 16 (comparative fee schedule with and without requested 
appropriations).
4. Military Naturalizations
    Service members in any of the branches of the U.S. Military who 
meet certain requirements may apply for naturalization and are exempt 
from paying the fee for the Application for Naturalization (Form N-
400). INA sec. 328(a)(4), 8 U.S.C. 1439(a)(4); INA sec. 329(b)(4), 8 
U.S.C. 1440(b)(4). Congress provided $5 million in FY 2010 to cover the 
estimated cost to USCIS of processing military naturalization 
applications. DHS Appropriation Act 2010, Public Law 111-83, 123 Stat. 
at 2164-5. As recognized by Congress in providing this appropriation, 
these costs

[[Page 33456]]

should not be borne by other fee-payers, particularly since this volume 
increases as the Department of Defense expands its recruitment efforts 
to certain aliens and other than lawful permanent residents. The 
estimated cost is based on a projected workload of 9,500 military 
naturalizations multiplied by the current fee of $595. The FY 2011 
Budget Request of $5 million in appropriations for the Department of 
Defense is reflected in the recalculation of the proposed fees. See 
2011 Budget Request, at 521-2. If Congress appropriates a different 
amount, the fees will be adjusted accordingly in the final rule. Table 
5 depicts the cost and revenue differential after appropriations for 
refugee, asylum, and military naturalizations are assumed.
[GRAPHIC] [TIFF OMITTED] TP11JN10.009

5. Proposed FY 2011 Appropriations for Systematic Alien Verification 
for Entitlements (SAVE) Program and the Office of Citizenship
    The $385,800,000 for USCIS funding in the FY 2011 Budget Request 
seeks appropriations to cover the estimated cost of the SAVE program 
($34 million) and the Office of Citizenship ($18 million) for FY 2011. 
See 2011 Budget Request, at 521-2. If Congress appropriates a different 
amount, the fees will be adjusted accordingly in the final rule. The 
fees proposed in this rule are based on the costs of the SAVE program 
and the Office of Citizenship not being financed by fee revenue and, 
instead, paid with appropriated funds. The baseline costs (without 
program increases) are approximately $26.1 million in FY 2011. If 
appropriations are not approved for these activities, USCIS will be 
required to adjust fees to reflect costs for the programs.
    The proposal follows initial steps taken within enacted FY 2010 
appropriations for USCIS fee reform that moved some asylum, refugee, 
and military naturalization costs out of the fee structure. The purpose 
of this fee reform is to improve the linkage between fees paid by USCIS 
applicants and petitioners and the cost of programs and activities to 
provide immigration benefits. Because of fee exemptions for 
beneficiaries of asylum, refugee, and military naturalization, fee 
surcharges were added to other applications and petitions. 72 FR 29859. 
Similarly, costs of SAVE and the Office of Citizenship are currently 
only partially supported by fee revenue. Additional fee reform in these 
areas moves these costs out of the USCIS fee structure and improves the 
precision and transparency of USCIS fees.
    The IEFA cost baseline is increasing while anticipated volumes and 
revenue are expected to decrease compared to the last fee rule. Table 6 
depicts the cost and revenue differential after appropriations for 
refugee, asylum, military naturalizations, SAVE, and the Office of 
Citizenship are assumed.
[GRAPHIC] [TIFF OMITTED] TP11JN10.010

6. Establish an Immigrant Visa Processing Fee
    DHS proposes to establish a new fee for immigrant visas to recover 
the costs to USCIS for related activities. Immigrant visas are issued 
by the Department of State (DOS) in overseas consulates to foreign 
nationals seeking to reside permanently in the United States. INA 
section 221-222, 8 U.S.C. 1201-1202. Although DOS issues the visas, 
USCIS must complete several visa application-related activities prior 
to issuance of a permanent resident card. USCIS must create a file, 
review the application, correspond with the applicant, and produce and 
issue a secure card upon approval. DOS charges fees for immigrant 
visas, but USCIS does not. The DOS fee is currently established, using 
DOS's fee-setting methodology, at $355. 22 CFR 22.1. The DOS fee was 
established to recover DOS costs only, and the USCIS FY 2010/2011 Fee 
Review was performed without consideration of fees paid by applicants 
to DOS. Other USCIS applicants have historically borne the cost of 
processing this immigrant visa workload.
    The USCIS fee only reflects the costs incurred by USCIS. Although 
USCIS projects an annual volume of 430,000 requests, in anticipation of 
the timing of implementation of a final rule promulgating the fee, 
USCIS only accounts for revenue for the second half of the first fiscal 
year, or 215,000 immigrant visas. USCIS projects that the collection of 
the immigrant visa fee will be implemented beginning in FY 2011. The 
proposed fee based on the workload analysis is $165. The additional 
revenue from implementing this fee will reduce

[[Page 33457]]

fees paid by, and fee increases charged to, other applications.
7. Civil Surgeon Program Fees
    DHS proposes to establish new fees for processing civil surgeon 
designations. Medical examinations are needed for most adjustment of 
status cases (Form I-485) and requests for V nonimmigrant status (Form 
I-539). The medical examination must be conducted by a civil surgeon 
who has been designated by USCIS. USCIS traditionally has not charged 
civil surgeons seeking this designation a fee to recover the costs 
associated with this application; these costs have been recovered as 
part of the administrative overhead charged to all fee-paying 
applicants and petitioners. The process for receiving and reviewing the 
information required for a civil surgeon designation, however, is labor 
intensive. For USCIS to continue to provide civil surgeon designations 
in a timely manner and to further refine the cost analysis and fee 
setting, USCIS must establish a fee of $615 to cover the cost of 
processing requests for such designations. Collecting a fee for these 
services will ensure that other fee-paying applicants do not bear these 
costs.
8. EB-5 Regional Center Designation Fee
    DHS proposes to add a fee for adjudication of regional center 
designations under the Immigrant Investor Pilot Program. See Public Law 
102-395, tit. VI, sec. 610, 106 Stat. 1874 (1992) (8 U.S.C. 1153 note). 
This program, implemented by Congress in 1990 to stimulate the U.S. 
economy, allows certain foreign investors to obtain lawful permanent 
resident status in the United States as EB-5 immigrants by making 
certain levels of capital investment and associated job creation or 
preservation. One aspect of this program (the Regional Center Pilot 
Program) encourages foreign investors to invest funds in a distinct 
economic ``regional center.'' A regional center is an economic unit, 
public or private, engaged in the promotion of economic growth, 
improved regional productivity, job creation, and increased domestic 
capital investment. See 8 CFR 204.6(e). An individual or entity 
interested in participating in the Regional Center Pilot Program must 
file a Regional Center Proposal with USCIS to request USCIS approval of 
the proposal and designation of the entity as a regional center. The 
proposal must provide a framework within which individual alien 
investors affiliated with the regional center can satisfy the EB-5 
eligibility requirements and create qualifying EB-5 jobs.\9\
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    \9\ See ``Adjudication of EB-5 Regional Center Proposals and 
Affiliated Form I-526 and Form I-829 Petitions; Adjudicators Field 
Manual (AFM) Update to Chapters 22.4 and 25.2,'' Donald Neufeld, 
Acting Associate Director, Domestic Operations, USCIS (Dec. 11, 
2009); http://www.uscis.gov.
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    USCIS's fee study found that these designations are exceptionally 
labor intensive for USCIS. Historically, the cost of this designation 
process has been borne by all fee-paying applicants and beneficiaries. 
Accordingly, to refine the cost accounting and fee structure, and to 
make the distribution of costs more equitable, DHS proposes a new fee 
of $6,230 per request for designation.
9. Employment Authorization Document Fees for Applicants Covered by 
Deferred Enforced Departure (Form I-765)
    DHS proposes to collect a fee for an Application for Employment 
Authorization and the associated biometrics for aliens granted deferred 
enforced departure (DED). DHS also proposes to remove an extraneous 
provision from the employment authorization regulations relating to 
aliens granted ``extended voluntary departure by the Attorney General 
as a member of a nationality group pursuant to a request by the 
Secretary of State.'' 8 CFR 274a.12(a)(11).
    In the Immigration Act of 1990, Congress established the temporary 
protected status (TPS) program and instructed that TPS constitutes the 
exclusive authority of the Attorney General (now the Secretary of 
Homeland Security) to permit deportable or paroled aliens to remain in 
the United States temporarily because of their particular nationality. 
See INA sec. 244(g), 8 U.S.C. 1254a(g). Accordingly, since 1990 neither 
the Attorney General nor the Secretary have designated a class of 
aliens for nationality-based ``extended voluntary departure,'' and 
there no longer are aliens in the United States benefiting from such a 
designation. Accordingly, DHS proposes to remove the obsolete reference 
to extended voluntary departure.
    On occasion, however, Presidents have issued executive orders or 
memoranda directing the deferral of enforced departure from the United 
States of certain nationals of a particular country for temporary 
periods and have directed that eligible individuals be provided 
employment authorization during the period of deferral. See, e.g., 
Exec. Order No. 12711, 55 FR 13897 (April 11, 1990) (deferring 
departure of certain Chinese nationals); Memorandum from President 
Barack Obama to Secretary of Homeland Security Janet Napolitano 
Extending Deferred Enforced Departure for Liberians (Mar. 20, 2009), 
available at http://www.whitehouse.gov/the_press_office/Presidential-Memorandum-Regarding-Deferred-Enforced-Departure-for-Liberians. DHS 
proposes changes that will clarify its authority to process and collect 
a fee for EADs and associated biometrics for aliens eligible for DED. 
Proposed 8 CFR 103.7(b) and 274a.12(a)(11). Collection of the EAD fee 
from individuals who are covered by an occasional Presidential 
directive to defer their departure temporarily will facilitate 
adjudication of the benefit, and the production of secure, biometric 
EADs, as with other EAD-eligible groups, such as aliens granted TPS. An 
EAD applicant may request a fee waiver based on an inability to pay the 
fee. The new provision will still be in regulations governing work 
authorization incident to status. 8 CFR 274a.12(a). The proposed change 
specifies that work authorization will be provided under terms and 
conditions set by the Secretary consistent with the President's DED 
directive. Proposed 8 CFR 274a.12(a)(11).

C. Summary

    Projected costs are expected to exceed projected revenue. This 
differential must be addressed with increased revenue, notwithstanding 
new appropriations and cost adjustments. Increased revenue will be 
derived from new immigrant visas, civil surgeon designations, and 
immigrant investors. Increased revenue will also be derived from a 
weighted average fee increase on existing immigration benefits. Some 
fees will be reduced due to lower processing costs; other fees will 
increase. The level of fee increase necessary to align costs and 
revenue is a weighted average of 10 percent after adjusting prices to 
account for reduced surcharges and other costs from appropriations for 
SAVE, Office of Citizenship, refugee and asylum costs, and military 
naturalization reimbursements from DOD. USCIS will adjust fees 
consistent with the details of this supporting documentation if 
proposed appropriations are not approved.

D. Performance Improvements

    In the FY 2008/2009 fee rule, USCIS committed to a series of 
performance improvements and reduced processing time goals. For the FY 
2010/2011 period, USCIS is identifying in this fee rule a new set of 
goals and performance improvements that are aimed at increasing 
accountability, providing

[[Page 33458]]

better customer service, and increasing efficiency. These enhancements 
include:
     Expanding the use of Systems Qualified Adjudication to a 
larger share of USCIS's workload. USCIS expects all Form I-90, I-765, 
and I-821 re-registration applications will be supported by electronic 
adjudication by September 2011. In addition to improving the processing 
of these requests, this step will provide adjudicators with more time 
to focus on more complex applications.
     Begin Deployment of Transformed Processes and System. 
USCIS expects to deploy the initial increment of its transformation 
program by the end of FY 2011. As one of the Administration's High 
Priority Performance Goals,\10\ USCIS has committed to ensuring that at 
least 25 percent of applications will be electronically filed and 
adjudicated using the new transformed integrated operating environment 
by FY 2012.
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    \10\ See Memorandum for the Heads of Departments and Agencies, 
Planning for the President's Fiscal Year 2011 Budget and Performance 
Plans, from Peter R. Orszag, Director, Office of Management and 
Budget, June 11, 2009.
---------------------------------------------------------------------------

     Integration of productivity measures in future fee review 
methodology. Beginning with the next fee rule, USCIS will integrate 
productivity measures into the underlying methodology USCIS uses to 
conduct fee studies. This means that efficiency gains resulting from 
information technology investments and process improvements will be 
clearly identified, including the cost savings that occur due to these 
changes, ensuring that those savings are incorporated into new fee 
amounts.

V. Fee Review Methodology

    When conducting a fee review, USCIS reviews its recent cost 
history, operating environment, and current service levels to determine 
the appropriate method to assign costs to particular benefit requests. 
The methodology used in the review reflects a robust capability to 
calculate, analyze, and project costs and revenues.
    USCIS uses commercially available activity-based costing (ABC) 
software to create financial models to calculate immigration benefit 
requests and biometric service fees. Following the FY 2008/2009 Fee 
Rule, USCIS identified several key methodology changes to improve the 
accuracy of the ABC model. Improvements were also suggested by the 
Government Accountability Office (GAO) following a review and 
completion of the FY 2008/2009 Fee Rule.\11\ These changes include 
analyzing cost allocation methods to evaluate methods that may offer 
greater precision and fully documenting the rationale and any related 
analysis for using the assumptions and cost assignment methods 
selected. USCIS continues to update the ABC model with the most current 
information for fee review and cost management purposes.
---------------------------------------------------------------------------

    \11\ Government Accountability Office, Immigration Application 
Fees: Costing Methodology Improvements Would Provide More Reliable 
Basis for Setting Fees (GAO-09-70, Jan. 23, 2009); Government 
Accountability Office, Federal User Fees: Additional Analyses and 
Timely Reviews Could Improve Immigration and Naturalization User Fee 
Design and USCIS Operations (GAO-09-180, Jan. 23, 2009); Statement 
of Susan J. Irving, Government Accountability Office, Federal User 
Fees: Fee Design Characteristics and Trade-Offs Illustrated by 
USCIS's Immigration and Naturalization Fees, Testimony before the 
Subcommittee on Immigration, Citizenship, Refugees, Border Security, 
and International Law, Committee on the Judiciary, U.S. House of 
Representatives, 18 (March 23, 2010) (Noting that ``Any user fee 
design embodies trade-offs among equity, efficiency, revenue 
adequacy, and administrative burden.'').
---------------------------------------------------------------------------

A. Background

    ABC is a business management tool that assigns resource costs to 
operational activities and then to products and services. These 
assignments provide an accurate cost assessment of each work stream 
involved in producing the individual outputs of an agency or 
organization. ABC is a preferred cost accounting method endorsed by the 
FASAB and enables USCIS to conform to Managerial Cost Accounting 
Concepts and Standards for the Federal Government.\12\
---------------------------------------------------------------------------

    \12\ Federal Accounting Standards Advisory Board, Statement of 
Financial Accounting Standards No. 4: Managerial Cost Accounting 
Concepts and Standards for the Federal Government 36 (July 31, 
1995).
---------------------------------------------------------------------------

1. ABC Methodology
a. Resources
    The total resource base for the ABC model is the FY 2010/2011 cost 
baseline and assumes that USCIS will receive $55 million in FY 2010 and 
$238 million in FY 2011 from appropriations to replace surcharges. The 
resulting $2.271 billion (see Table 6) is the estimated cost of FY 2010 
and FY 2011 resources necessary to fund the full cost of processing 
immigration benefit requests and biometric services for which USCIS 
charges a fee, as well as the cost of providing similar services at no 
cost. This represents the first stage of the ABC process.
    The ABC model structure for FY 2010/2011 was designed to closely 
resemble the structure of the FY 2009 Annual Operating Plan (AOP). The 
AOP is the detailed budget execution plan USCIS establishes at the 
beginning of the fiscal year consistent with the Congressionally 
approved fiscal year appropriation and forecasted fee revenue. The 
model includes the same USCIS offices and individual line items 
associated with these offices. This structure provides a common format 
and creates a means to project out-year budgets and potentially track 
commitments, obligations, and expenditures by the operating plan line 
item description in the model.
    The ABC model structure for the FY 2008/2009 Fee Rule was based on 
the FY 2007 AOP. Headquarters payroll and agency-wide non-payroll were 
very similar to the operating plan; however, payroll for field offices 
(Service Centers, District Offices, National Benefits Center, and 
National Records Center) was broken down into sub-categories similar to 
the internal USCIS Staffing Allocation Model (SAM).\13\
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    \13\ The Staffing Allocation Model is a model used to calculate 
estimates of staffing types and levels necessary to undertake 
specific workload (e.g., applications and petitions) levels at 
target processing times.
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b. Resource Drivers and Resource Assignment
    ABC methodology uses resource drivers to assign resources to 
activities. Using the resource base of $2.271 billion, costs are 
assigned to activities using resource drivers. All resource costs are 
assigned to activities, so the total resources in the model equal the 
total cost of activities. This represents the second stage of the ABC 
process.
    A commonly used resource driver in ABC is an organization's number 
of employees and the percentage of time they spend performing certain 
activities. The FY 2010/2011 ABC model uses this methodology to assign 
resources to activities. The ABC model assigns resources to activities 
using authorized positions by funding stream (fund code) and Program, 
Project, and Activity (PPA) for each USCIS office. This driver is then 
weighted by the percentage of on-board positions performing specific 
activities within each USCIS office. These percentages are determined 
using a payroll position title analysis. The payroll position title 
analysis identifies the percentage of each office that is dedicated to 
the nine ABC activities (for more information see the section titled 
``Activities'' below) by reviewing the titles and position descriptions 
of its workforce.
    Other resource drivers in the FY 2010/2011 model include a direct 
driver

[[Page 33459]]

and a rent driver that are similar to those used in the FY 2008/2009 
model. The direct driver assigns specific resources directly to 
activities. For example, the contract issued for USCIS Application 
Support Centers (ASCs) only pertains to the capture biometrics 
activity. Therefore, the costs associated with this contract are 
assigned directly to the capture biometrics activity using a direct 
driver. The rent driver assigns estimated rent costs for each fiscal 
year to each USCIS office based on projected FY 2010 rent costs by 
location. Other overhead costs, such as the Office of Information 
Technology, service-level agreements, and the DHS working capital fund 
costs are distributed to each USCIS office on a prorated basis by 
authorized positions.
    The FY 2008/2009 model used total authorized positions as the 
primary resource driver. For Headquarters offices, this driver was 
weighted by the estimated percentage of time spent performing certain 
activities, based on operational knowledge. For field offices, total 
positions were weighted by the time spent performing certain 
activities, based on operational knowledge as well as time percentages 
determined using officer hour data from the USCIS Performance Analysis 
System (PAS).\14\
---------------------------------------------------------------------------

    \14\ The USCIS Performance Analysis System (PAS) is an online 
data entry and retrieval system used to track workload 
accomplishments and human resources expenditures.
---------------------------------------------------------------------------

    The allocation methods in the FY 2008/2009 Fee Rule, as well as the 
FY 2010/2011 Fee Review, are consistent with the FASAB Standard 4 on 
managerial cost accounting concepts. They fulfill the mandate to 
directly trace costs when feasible, and to either assign costs on a 
cause-and-effect basis or allocate them in a reasonable and consistent 
way.
c. Activities
    In ABC, activities are the critical link between resources and cost 
objects. This represents the third stage of the ABC process. Projected 
operating costs (resources) for FY 2010/2011 are spread to nine 
activities. They are:
     Inform the Public involves receiving and responding to 
applicant and petitioner inquires through telephone calls, written 
correspondence, or walk-in inquiries;
     Capture Biometrics involves the electronic capture of 
biometric information (fingerprint and photograph), background checks 
performed by the FBI, and use of the collected biometrics for verifying 
the identity of the applicants;
     Intake involves mailroom operations, data capture and 
collection, file assembly, fee receipting, and file room operations;
     Conduct Interagency Border Inspection System (IBIS) Checks 
involves the process of comparing information on applicants, 
petitioners, beneficiaries, derivatives, and household members who 
apply for an immigration benefit against various Federal lookout 
systems;
     Review Records involves searching and requesting files; 
creating temporary and/or permanent alien files; consolidating files; 
connecting returned evidence with application or petition files; 
pulling, storing, and moving files upon request; auditing and updating 
systems on the location of files; and archiving inactive files;
     Make Determination involves the tasks of adjudicating 
immigration benefits; making and recording adjudicative decisions; 
requesting and reviewing additional evidence; interviewing applicants; 
consulting with supervisors or legal counsel; and researching 
applicable laws and decisions on non-routine adjudications;
     Fraud Detection and Prevention involves activities 
performed by the Fraud Detection and National Security Directorate in 
detecting, combating, and deterring immigration benefit fraud, and 
addressing national security and intelligence concerns;
     Issue Document involves the tasks of producing and 
distributing secure cards that identify the holder as an alien and also 
identify his or her status or employment authorization;
     Management and Oversight involves activities in all 
offices that provide broad, high-level leadership to meet USCIS goals.
    Management and Oversight is an activity designed to capture 
managerial activities at Headquarters and in the field. This activity 
provides a more specific depiction of the work performed by certain 
offices. All Headquarters offices \15\ are allocated to Management and 
Oversight in their entirety, including the Executive Secretariat; 
Office of Administration; Office of the Chief Financial Officer; Office 
of Citizenship; Office of Communications; Office of Congressional 
Relations; Office of Emergency Preparedness and Coordination; Office of 
Equal Opportunity & Inclusion; Office of Human Capital, Training, and 
Management; Office of Policy & Strategy; Office of Privacy; Office of 
Security & Integrity; Office of the Chief Counsel; Office of the Deputy 
Director/Chief of Staff; Office of the Director; Office of 
Transformation Coordination;\16\ and Office of Records.
---------------------------------------------------------------------------

    \15\ In January 2010, USCIS realigned its structure and 
management functions that created new offices and modified the 
reporting relationship between others. For the purpose of this fee 
review, the previous organizational chart, valid as of February 
2009, was used.
    \16\ The only portion of the Office of Transformation 
Coordination that is treated as a Headquarters office is funding for 
staff (payroll, overtime, and awards) and related general expenses. 
Other programmatic costs are funded by premium processing revenue.
---------------------------------------------------------------------------

    The payroll title analysis allowed USCIS to identify leadership 
positions in the field offices that should be allocated to the 
Management and Oversight activity. Projected operating costs for FY 
2008/2009 were spread to the nine activities (Inform the Public, 
Intake, Capture Biometrics, Conduct IBIS Check, Review Records, Fraud 
Detection and Prevention, Make Determination, and Issue Document). 
Management and Oversight was not a separate activity.
d. Activity Drivers and Activity Assignment
    The fourth stage in the ABC process is driving the activity costs 
to the immigration benefits (cost objects). Activity costs are 
primarily spread to immigration benefit requests based on the 
percentage of total projected volume, as similar time and effort are 
involved in processing each application. There are unique drivers used 
for two of the activities--Capture Biometrics and Make Determination. 
The Make Determination activity is spread to requests by a factor of 
average adjudication time and projected volume (i.e., projected 
adjudication hours) as these metrics pertain directly to the 
adjudication function and can vary significantly by application. The 
general premise is that the more time spent adjudicating a request, the 
higher the fee. Exceptions to this general rule occur when volumes skew 
unit costs (e.g., high-volume applications tend to have lower unit 
costs since costs are allocated over a higher volume base) or 
additional activities are performed (e.g., some applications require 
the creation of secure cards). Capture Biometrics uses a direct 
activity driver to drive all of the costs associated with this activity 
to Biometric Services.
    Activity costs are spread to immigration benefit requests by the 
locations where they are processed apart from the Intake activity. 
Intake is primarily performed at the Lockbox; however, some intake is 
performed at the field offices. Due to varying costs at field 
locations, spreading intake costs by a percentage of total field office 
costs introduces inaccurate variability in

[[Page 33460]]

intake costs by request. There is little variability in the intake 
process by request type and therefore, intake costs are spread using an 
average cost per request. Ultimately, nearly all immigration benefit 
request types will be received only by Lockbox locations.
    Activity costs for the FY 2008/2009 Fee Rule were spread by 
projected volume weighted by average adjudication time for the Make 
Determination activity. All other activity costs were spread using an 
average activity cost per application.
e. Cost Objects
    Cost objects are the immigration benefits and biometric services 
for which USCIS charges a fee. Driving activity costs to the cost 
objects is the final stage of the ABC process.
    Application costs were derived for virtually every immigration 
benefit that USCIS adjudicates including those filed for asylum and 
refugee protection, Temporary Protected Status, Premium Processing, and 
H-1B nonimmigrant petitions. The IEFA cost of requests for which no 
revenue is recovered is redistributed to other applications in a 
prorated manner similar to the way the FY 2008/2009 Fee Rule handled 
requests. Temporary Protected Status (Form I-821), Nicaraguan 
Adjustment and Central American Relief Act (NACARA) (Form I-881)--
Suspension of Deportation or Application Special Rule, are temporary 
programs. Thus USCIS does not rely on their revenue in the FY 2010/2011 
Fee Review to support baseline operations, although their costs are 
analyzed.
    A separate fee for biometric services was also derived. The 
proposed rule continues to provide for a separate $85 biometric fee to 
accommodate national security and fraud detection decisions that may 
require extension of biometric requirements to additional immigration 
benefit requests that do not already include that fee. Table 7 outlines 
the fees for immigration benefits that require biometric services. 
These fees assume receipt of $283 million in appropriated funds in FY 
2011 for refugee, asylum, military naturalization, SAVE, and Office of 
Citizenship activities.
[GRAPHIC] [TIFF OMITTED] TP11JN10.011

    Table 8 outlines the fees for immigration benefits if Congress does 
not enact the requested appropriations for SAVE and the Office of 
Citizenship.
---------------------------------------------------------------------------

    \17\ Applicants submitting a Form I-131, Travel Document--
Advance Parole, are not required to pay the biometrics fee.
    \18\ Amerasian applicants are the only class of I-360 applicants 
required to pay for biometric services.

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[[Page 33461]]

[GRAPHIC] [TIFF OMITTED] TP11JN10.012

2. Low Volume Reallocation
    USCIS is using its fee setting discretion to adjust certain 
application and petition fees when the low volume that is projected 
leads to particularly high unit cost increases. USCIS determined in its 
fee study that the combined effect of cost, revenue estimates, and 
methodology results in an inordinate fee burden being placed on these 
requests relative to other benefit requests. For example, without 
reallocation for an orphan petition, the fee for that form would be 
$1,455. USCIS believes it would be contrary to the public interest to 
impose a fee of this size on an estimated 25,000 potential adoptive 
parents each year. Similar disparate effects occur for all of the form 
types that are being adjusted using a low volume reallocation. Thus, 
USCIS has decided, based on its experience in carrying out immigration 
benefit programs, assessing fees, and the characteristics of various 
applicants, that reasonable adjustments based on such equitable 
considerations are justified.
    USCIS will therefore limit the fee increase for these forms to an 
increase equal to the weighted average percentage fee increase of all 
immigration benefits. The additional costs from these form types are 
then prorated to other benefits. This same methodology was used 
effectively in the FY 2008/2009 Fee Rule. 72 FR at 4910. The benefit 
requests requiring a low volume adjustment for the FY 2010/2011 Fee 
Rule are:
     Petition for Amerasian, Widow(er), or Special Immigrant 
(with respect to Form I-360 applicants who are not already exempt from 
paying the fee);
     Application for Waiver of Grounds of Inadmissibility (Form 
I-690);
     Application to File Declaration of Intention (Form N-300);
     Application to Preserve Residence for Naturalization 
Purposes (Form N-470);
     Orphan Petitions (Forms I-600/I-600A and I-800/I-800A,);
     Notice of Appeal or Motion (Form I-290B);
     Request for Hearing on a Decision in Naturalization 
Proceedings (Form N-336); and
     Waiver Forms (Forms I-191, I-192, I-193, I-212, I-601, I-
612).
    Public comments would be particularly useful on whether to maintain 
fees for certain low volume applications and petitions at levels below 
the ABC model.
3. Application for Naturalization
    DHS proposes to provide special consideration to the fee for an 
Application for Naturalization (Form N-400), by limiting the fee at its 
current level of $680 ($595 current fee with the $85 biometrics fee). 
USCIS received many comments on the FY 2008/2009 Fee Rule expressing 
concern that the N-400 fee had been increased inordinately. 72 FR at 
29856.
    DHS has determined that the act of requesting and obtaining U.S. 
citizenship deserves special consideration given the unique nature of 
this benefit to the individual applicant, the significant public 
benefit to the Nation, and the Nation's proud tradition of welcoming 
new citizens. DHS believes this action to retain the naturalization fee 
at the current level will reinforce these principles, allow more 
immigrants to fully participate in civic life, and is consistent with 
other DHS efforts to promote citizenship and immigrant integration.\19\ 
For these reasons, and based on its experience in administering the 
naturalization program, DHS proposes to retain the fee for 
naturalization at the current level over the FY 2010/2011 biennial 
period.
---------------------------------------------------------------------------

    \19\ See USCIS Office of Citizenship Vision and Mission at 
http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=a5e314c0cee47210VgnVCM100000082ca60aRCRD&vgnextchannel=a5e314c0cee47210VgnVCM100000082ca60aRCRD.
---------------------------------------------------------------------------

    DHS recognizes that limiting the fee at its current level would 
lead to the subsidization of naturalization by other fee-paying 
applicants as allowed by INA section 286(m), 8 U.S.C. 1356(m). Charging 
``other immigrants'' who file an Application for Naturalization (Form 
N-400) less than full cost of adjudicating that petition, or spreading 
the costs of administration of USCIS more fully among non-
naturalization applicants, may be fairly interpreted as providing the 
naturalization applicants with a part of that service ``without 
charge.'' As

[[Page 33462]]

discussed in the Authority section of this rule, DHS is proposing to 
shift this amount to other applicants as part of full cost recovery in 
compliance with INA section 286(m).
    This proposal would result in setting the fee for the Application 
for Naturalization (Form N-400) at less than what the ABC model 
generates as the full cost of adjudicating that application. A model-
based fee for naturalization would have increased the current fee level 
by as much as $60 per application. DHS is anticipating receiving an 
annual volume of 684,390 fee-paying naturalization applications (Form 
N-400); accordingly, forgoing the $60 fee increase for the Form N-400 
thus would reduce fee collections by approximately $41 million, as 
compared to using the adjusted fee. As a result, retaining the current 
fee will spread this portion of the cost from naturalization applicants 
to other applicants and petitioners as part of full cost recovery in 
implementing INA section 286(m), 8 U.S.C. 1356(m). The estimated fee 
impact of this policy on other application and petition types is a 
weighted average of $8.00 per application and petition (i.e., the 
impact is greater or less than $8.00 for each application and petition, 
with the weighted average being $8.00). DHS is specifically requesting 
comments on this policy decision. The comments will be considered in 
determining whether the final rule provides a fee of $680 as proposed 
or a higher amount as calculated in the FY 2010/2011 Fee Review using 
ABC methodology and all other factors that are part of calculations for 
the final rule.\20\ Table 9 illustrates the impact of this proposed 
policy decision across all fee paying applications and petitions.
---------------------------------------------------------------------------

    \20\ The fees established in the final rule may vary based on 
cost figures that are current when the final rule is drafted, 
enacted appropriations, and adjustments made as a result of public 
comments on all fees, waivers, exemptions, reallocations, and 
general methodology. Adjustment of one fee will result in changes in 
the fees for other benefit requests (raising or reducing fees) 
depending on the action. The effect of a change in one fee on all 
other fees cannot be precisely stated because of the other 
adjustments that will be made.
    Costs not recovered with respect to immigration benefits for 
which the fee is set below the ABC model amount are spread to other 
immigration benefits by the ABC model output amount. First these 
redistributed costs are added to all non-held immigrant benefits. 
Then these redistributed costs, as an average, are spread to the 
fee-paying volume of each of the non-held immigrant benefit fees. 
This methodology is consistent with the methodology used in the FY 
2007 Fee Rule to spread these costs equitably to the benefit instead 
of applying a fixed ``surcharge.''
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BILLING CODE 9111-97-P

[[Page 33463]]

[GRAPHIC] [TIFF OMITTED] TP11JN10.013


[[Page 33464]]


[GRAPHIC] [TIFF OMITTED] TP11JN10.014

BILLING CODE 9111-97-C

B. Key Changes Implemented for the FY 2010/2011 Fee Review

1. Appropriation for Refugee, Asylum, and Military Naturalization 
Benefits
    Fee setting authority for the IEFA provides that fees may be set at 
a level to fund the full cost of processing immigration benefit 
requests and the full cost of providing similar benefits to asylum and 
refugee applicants. INA sec. 286(m); 8 U.S.C. 1356(m). In the FY 2008/
2009 Fee Rule, USCIS attached a $72 surcharge to every immigration 
benefit request representing the cost of workload for asylum and 
refugee applicants as well as the cost of estimated fee waivers and 
exemptions. 72 FR 29859. For the fees proposed in this rule, USCIS will 
exclude the costs incurred for refugee, asylum, and military 
naturalization workload from the ABC model. Appropriated funding for 
these purposes was requested and partially approved for FY 2010; 
additional appropriations to fund operations were requested for FY 
2011.
    International Operations (IO) processes immigration benefits and 
petitions, facilitates the international adoption process, and serves 
the immediate family members of U.S. citizens residing abroad who want 
to adjust their status. In the FY 2008/2009 Fee Rule, IO's costs were 
part of the Refugee/Asylum surcharge applied to all fee-paying 
applications and petitions. In this proposed rule, the portion of IO's 
budget attributable to processing refugee benefits has been included in 
the requested appropriation. The remaining costs are included in the 
IEFA cost baseline and recovered by fee revenue. The portion of IO that 
processes fee-paying benefits will be funded using IEFA revenue. If the 
FY 2011 request for appropriated funds is not enacted or enacted at a 
reduced level, the model will be revised and the final fee structure 
will reflect the costs of these activities.
2. Fee Waivers and Exemptions
    DHS proposes to modify the regulatory language and clarify 
eligibility for an individual fee waiver in 8 CFR 103.7(c). Where 
appropriate in the IEFA fee structure, USCIS exempts certain classes of 
applicants and petitioners from paying fees, and certain applicants may 
be granted a fee waiver due to verifiable financial hardship. DHS 
proposes to modify 8 CFR 103.7(c) to list benefit requests for which 
applicants may request fee waivers.
    DHS also proposes to add a new 8 CFR 103.7(d) to provide USCIS with 
the discretion to approve and revoke exemptions from fees, or provide 
that the fee may be waived for a case or class of cases that is not 
otherwise provided in 8 CFR 103.7(c). To exercise this authority, the 
Director of USCIS must determine that such an exemption or waiver would 
be in the public interest and the exception is not inconsistent with 
other applicable law or regulation. DHS proposes that this exception 
authority will be vested with the Director of USCIS and cannot be 
delegated to any other official other than his or her deputy. USCIS 
plans to issue internal guidance that will require requests for a 
Director's waiver to be sent to the USCIS District Office. The guidance 
will require the District Office and applicable program directorate to 
recommend approval, outline the reasons for the recommendation in their 
transmission of the waiver or exemption request to the Director, and 
certify that no other law or regulations are violated by granting the 
waiver or exemption.
    In addition, DHS proposes to remove the separate fee waiver 
provisions that relate to applications for temporary protected status 
(TPS). See 8 CFR 244.20. The applicant must show that he or she is 
unable to pay the prescribed fees to establish eligibility for a waiver 
of the fee for an application for TPS. Those requirements differ only 
slightly from the more general fee waiver eligibility in 8 CFR 103.7(c) 
and the redundant provisions have been the source of confusion. These 
proposed modifications ensure that waivers and exemptions are applied 
in a fair and consistent manner.
3. Immigrant Visa Processing Fee
    DHS is proposing to collect a fee for processing immigrant visas. 
USCIS does not currently recover fees for the cost of processing visas 
issued overseas by DOS, although USCIS offices expend time and effort 
to process those visas. This practice is inconsistent with Executive 
Branch guidance in OMB Circular A-25 to recover the full cost of 
providing a service to the public. Historically, these costs were 
carried as overhead and spread across all fee-paying applicants. By not 
collecting a fee for this service while incurring significant 
associated costs, USCIS is placing additional burdens on all fee-paying 
applicants. The fee proposed in this rule for immigrant visas was 
calculated at the amount necessary to fully recover the costs to USCIS 
for processing these requests. This new fee will result in a smaller 
increase in the fees proposed for other benefit requests absent this 
action.
    While USCIS does not adjudicate immigrant visas applications, USCIS 
resources are required to complete the processing of this benefit when 
an immigrant visa is granted by a DOS

[[Page 33465]]

consular officer. An individual receiving a visa from a DOS consulate 
overseas receives visa documentation and his or her photograph in a 
sealed application package. The individual takes the application 
package with him or her for use at the U.S. port of entry. At the port 
of entry, a U.S. Customs and Border Protection (CBP) officer will 
inspect the individual and fill out remaining information and collect 
remaining application documentation. CBP forwards the immigrant visa 
package to USCIS for review and entry into USCIS data systems. If a 
deficiency is found, the visa case is referred to a USCIS District 
Office for resolution. Typical deficiencies include missing 
documentation, missing biometric information, unacceptable photographs, 
and mismatches of admission stamp information. Some of the deficiencies 
are resolved between USCIS and CBP.
    When an immigrant visa is deemed complete and satisfactory, USCIS 
enters the data; scans photographs, signatures and fingerprints; and 
issues a permanent resident card. USCIS Service Centers often take 
inquiries from immigrants until the card is received in the mail. USCIS 
integrates visa documentation within a central alien file (A-File) and, 
if none exists, a new A-File is created and stored. Of the nine ABC 
activities, the following activities apply directly to processing 
immigrant visas:
     Intake--USCIS must receive immigrant visa packets from 
CBP, perform data entry, and create a file for each individual packet.
     Review Records--USCIS must ensure that inter-agency forms 
that are essential to the immigrant visa process are received from the 
appropriate source and collated into one A-file. Each immigrant visa 
application becomes a record that must be stored, retrieved, and 
archived as needed.
     Issue Document--Each approved immigrant visa applicant 
receives a permanent resident card (green card) created by the USCIS 
Integrated Document Production office.
     Inform the Public--USCIS receives and processes applicant 
and petitioner service inquiries from immigrant visa applicants related 
to their permanent resident status.
     Management and Oversight--All applications processed by 
USCIS receive a portion of the cost of high-level leadership and non-
adjudicative support from Headquarters offices.
    The proposed fee to service each of the immigrant visas and issue a 
permanent resident card, based on these activities, is $165.
4. EB-5 Regional Center Designation Fee
    DHS is proposing an immigrant investor fee for individuals, State 
or local government agencies, partnerships, or any other business 
entity requesting approval and designation to be a regional center 
under the Immigrant Investor Pilot Program (Pilot Program). See Public 
Law 102-395, tit. VI, section 610, 106 Stat. 1874 (1992) (8 U.S.C. 1153 
note). This program is distinct in certain ways from the basic EB-5 
investor program. Foreign investors are encouraged to invest funds in 
an economic unit known as a ``regional center.'' A regional center is 
defined under 8 CFR 204.6(e) to mean any economic unit, public or 
private, engaged in the promotion of economic growth, improved regional 
productivity, job creation, and increased domestic capital investment. 
USCIS regulations establish eligibility criteria for a regional center 
and the related reporting requirements. 8 CFR 204.6(m)(3). In 
conjunction with the new fee, the regional center reporting 
requirements are proposed to be clarified in this rule. The reporting 
requirements will make it clearer that the designation as a regional 
center is subject to maintenance of the eligibility requirements, and 
the provision of reports to USCIS showing continued compliance. 
Proposed 8 CFR 204.6(m)(6).
    The FY 2010/2011 fee study found that USCIS expends a lot of effort 
to adjudicate a request for designation as an approved EB-5 regional 
center. These applicants do not pay fees to cover the costs incurred to 
carry out this program's activities. As a result, the costs of staff 
and resources necessary to carry out the regional center program have 
been paid from revenue derived from other applications. In addition to 
providing a vehicle for fee collection, the standardized ``Application 
for Regional Center under the Immigrant Investor Pilot Program,'' (Form 
I-924); will clarify requirements for a regional center document; 
improve the quality of applications; better document eligibility for 
the Pilot Program; alleviate content inconsistencies among applicants' 
submissions; and support a more efficient process for adjudication of 
applications.
    Of the nine ABC activities, the following apply directly to 
processing applications for Regional Centers:
     Intake--USCIS must receive applications from individuals 
or entities desiring to receive regional center designation, perform 
data entry, and create a file for each individual packet.
     Review Records--USCIS must ensure that evidence essential 
to the adjudications process is received from the appropriate source 
and collated into one file. Each application becomes a record that must 
be stored, retrieved, and archived as needed.
     Inform the Public-- USCIS receives and processes applicant 
and petitioner service inquiries from applicants related to the status 
of their applications.
     Fraud Prevention and Detection--The authenticity of each 
application must be analyzed in order to prevent immigration benefit 
fraud.
     Make Determination--The Regional Center application 
requires the submission of extensive documentation and statistical data 
concerning the geographical region the center will affect. Applicants 
must also provide thorough business plans, analysis of the potential 
economic impact the center will have, and proof of immigration status 
for review by USCIS.
     Management and Oversight--All applications processed by 
USCIS receive a portion of the cost of high-level leadership and non-
adjudicative support from Headquarters offices.
    Based on these activities, a proposed fee of $6,230 has been 
calculated for servicing these applications. USCIS estimates that it 
will receive an average of 132 applications for regional centers per 
year. Based on the experience USCIS has in administering the regional 
center and EB-5 investor program, and knowledge of the entities that 
file the typical application, this fee is affordable and it is 
reasonable to collect it from the affected applicants. For example, a 
review of investment subscription agreements and limited partnership 
membership agreements provided in support of recently submitted 
proposals during the USCIS adjudication process indicates that multiple 
investors typically paid from $25,000 to $50,000 each for the 
opportunity to invest in a project, in addition to the minimum 
investment required by DHS regulations to be a EB-5 investor.\21\ Thus, 
regardless of the low annual volume estimate, no low volume 
reallocation of the costs of the EB-5 investor program is being 
proposed. Thus, the fee of $6,230 will be collected from each 
applicant.
---------------------------------------------------------------------------

    \21\ http://www.uscis.gov/eb-5centers.
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5. Civil Surgeon Program
    DHS is proposing a new fee for individuals requesting civil surgeon 
designation. Civil surgeons are physicians who are authorized to 
conduct medical examinations that are required of applicants for 
certain immigration benefits. 42 CFR part 34. See also ch. 373, title 
III, secs. 325, 361, 58 Stat. 697, 703 (Jul. 1, 1944); 42 U.S.C.

[[Page 33466]]

252, 264 (requiring the Secretary of HHS to make and enforce 
regulations necessary to prevent the introduction, transmission, or 
spread of communicable diseases from foreign countries into the 
States). Section 232(b) of the INA, 8 U.S.C. 1222(b), provides for 
officers of the United States Public Health Service (USPHS) to conduct 
physical and mental examinations of arriving aliens. If there are not 
enough USPHS officers to conduct these examinations, section 232(b) 
provides for the designation of civilian physicians as ``civil 
surgeons,'' who are then authorized to conduct the examinations. Under 
section 451(b) of the Homeland Security Act of 2002, Public Law 107-
296, 116 Stat. 2135, 2195 (2002), the authority to designate civil 
surgeons transferred on March 1, 2003, from the Attorney General to the 
Secretary of Homeland Security. 6 U.S.C. 271(b), 557; see also 8 CFR 
part 2.1. The Secretary of Homeland Security has delegated the 
authority to designate civil surgeons to USCIS. The civil surgeon must 
conduct all examinations in accordance with Technical Instructions for 
the Medical Examination of Aliens in the United States, adopted by the 
Centers for Disease Control and Prevention of the United States 
Department of Health and Human Services. See http://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/technical-instructions-civil-surgeons.html. The INA provides that officers of the United States 
Public Health Service (USPHS) or civil surgeons, when USPHS officers 
are not available, conduct physical and mental examinations of arriving 
aliens. INA section 232(b), 8 U.S.C. 1252(b). The civil surgeon 
designation is required for physicians wishing to conduct physical and 
mental examinations of those seeking admission into the United States 
or applying for adjustment of status. Id.; 8 CFR 232.2(b). It is 
currently within the authority of the District Directors to designate 
civil surgeons for each district. See 8 CFR 232.2(b). Currently, USCIS 
does not recover the costs of granting civil surgeon designation and 
managing the Civil Surgeon Program. This is inconsistent with OMB 
Circular A-25 requirements that USCIS recover the full cost of services 
provided to the public. DHS, therefore, proposes a fee to correct that 
oversight in this proposed rule.
    In the future, the civil surgeon designation process will be 
standardized. USCIS will develop a standard designation process and 
form, maintain an accurate, regularly-updated list of civil surgeons, 
ensure that the program is self-funded, and improve communication 
between USCIS and civil surgeons. Six of the nine ABC activities apply 
to the civil surgeon designation process:
     Intake--USCIS must receive requests for civil surgeon 
designation, perform data entry, and create a file for each individual 
application.
     Review Records--USCIS must ensure that evidence essential 
to the designations process is received from appropriate sources and 
collated into one file. Each application becomes a record that must be 
stored, retrieved, and archived as needed.
     Inform the Public--USCIS receives and processes applicant 
and petitioner service inquiries from applicants related to the status 
of their applications.
     Fraud Prevention and Detection--The authenticity of each 
application must be analyzed in order to prevent potential immigration 
benefit fraud.
     Make Determination--All physicians applying for civil 
surgeon designation will be vetted for any adverse actions pending 
against them by the State medical licensing authorities to determine 
eligibility.
     Management and Oversight--All applications processed by 
USCIS receive a portion of the cost of high-level leadership and non-
adjudicative support from Headquarters offices.
    The FY 2010/2011 Fee Study calculated the costs of carrying out 
each of these activities as, respectively, $26, $61, $85, $24, $350, 
and $69, for a total proposed fee of $615 for this benefit. Doctors who 
request a civil surgeon designation will add a payment of $615 to the 
items that are currently required. Since the estimated number of civil 
surgeon designation requests is only 3,410 per year, the impact of this 
proposed fee on other fees is negligible. Nevertheless, even though 
they amount to only $1.9 million per year, these costs should not be 
covered by other fee payers.

VI. Volume

    USCIS uses two types of volume data in the fee review. Workload 
volume is a projection of the total number of immigration benefit 
requests received in a fiscal year and is used to determine the amount 
of resources needed. Fee-paying volume is a projection of how many 
applicants will pay a fee for a request. Since USCIS may waive the fee 
or allow an exemption for certain classes of applicants, fee-paying 
volume is used to determine projected revenue.
     Workload Volume is a primary cost driver for assigning 
processing activity costs to immigration benefit requests in the USCIS 
activity-based cost model. Workload volume is projected for each 
immigration benefit by Service Centers, National Benefit Center, and 
District Offices in order to assign costs where the work is performed, 
and thus where costs are realized.
     Fee-paying Volume is used to calculate proposed fees for 
immigration benefit requests and biometric services. The fee-paying 
volume for each form is determined by dividing the actual fee revenues 
per request in FY 2008 by the FY 2008 fee to determine the fee-paying 
percentage, and then applying that percentage to projected workload 
volumes. USCIS adjusts FY 2008 fee-paying volumes to reflect filing 
trends and anticipated changes in order to project FY 2010/2011 fee-
paying volumes.
    USCIS projects workload volumes based on filing trends in FY 2009 
and projected changes for FY 2010/2011. USCIS also utilizes time series 
model data from the last 15 years developed by the DHS Office of 
Immigration Statistics (OIS), as well as the best available internal 
understanding of future developments. Given the size and scope of 
current negative economic conditions, historical data may not provide 
sufficient insight into the likelihood or timing of volume increases or 
decreases. Consequently, USCIS has taken a conservative approach to 
workload volume estimates for FY 2010/2011.
    USCIS reviews short- and long-term volume trends and assesses OIS 
trend data with representatives of other affected components of DHS. 
OIS volume estimates by application or petition type are primarily 
drawn from time series models. The time series models analyze 
historical receipts data in order to capture patterns (such as level, 
trend, and seasonality) or correlations in historical events. These 
patterns and correlations are then extrapolated into the future in 
order to derive projected receipts. All of the models capture the 
behavioral relationships and dependencies of receipts to past values. 
For example, the models factor in the correlation between the number of 
pending Form I-485, Application to Register Permanent Residence or 
Adjustment of Status, and the projected number of receipts for the Form 
I-765, Application for Employment Authorization, and the Form I-131, 
Application for Travel Document. DHS, USCIS, and OIS will continue to 
improve both the estimating process and the basis for specific 
estimates.
    Table 10 summarizes the FY 2008/2009 workload volume and the 
projected workload volume for FY 2010/

[[Page 33467]]

2011 based on trends and projected changes by immigration benefit 
request. The projected workload volume is used in the cost model to 
determine request costs. USCIS has experienced a general decrease in 
volume and expects that trend to continue.
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[[Page 33468]]


[GRAPHIC] [TIFF OMITTED] TP11JN10.016

    The projected fee-paying volume is used to determine immigration 
benefit and biometric service unit costs and ultimately the proposed 
fees. A comparison of 2008/2009 Fee Rule fee-paying volume to projected 
2010/2011 fee-paying volume, along with the difference between the two, 
is outlined in Table 11.

[[Page 33469]]

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[[Page 33470]]


[GRAPHIC] [TIFF OMITTED] TP11JN10.018

VII. Completion Rates

    USCIS uses completion rates, reflective of Immigration Services 
Officer (ISO) hours per completion, to identify the adjudicative time 
required to complete specific benefit requests from receipt to final 
disposition. The rate for each benefit request represents an average, 
as each case is different and some cases are more complex than others. 
Completion rates reflect what is termed ``touch time,'' or the time the 
ISO is actually handling the case. It is not reflective of ``queue 
time,'' or time spent waiting, for example, for additional information 
or supervisory approval. Nor does it reflect the total time applicants 
and petitioners can expect to await a decision on their cases once they 
are received by USCIS.
    All ISOs are required to report completion rate information. In 
addition to using this data to determine fees, completion rates are a 
key factor in determining staffing allocations to match resources and 
workload. For this reason, data reported are scrutinized by field and 
regional office management officials, and by the Production Management 
Branch (PMB) at USCIS headquarters to ensure data accuracy. When the 
data are found to be inconsistent with other offices or with prior 
reported data, the PMB contacts the reporting office and makes any 
necessary adjustments. Completion rates, reflected in terms of hours 
per completion, are summarized in Table 12. Completion rates are 
calculated using data for the 12-month period of May 2008 through April 
2009. While more recent rates are available, USCIS believes that the 
rates utilized for the rule best reflect actual work times. More recent 
rates that have not had sufficient review and analysis and may reflect 
near-term trends and work fluctuations that could skew model outcomes.

[[Page 33471]]

[GRAPHIC] [TIFF OMITTED] TP11JN10.019

     

    \22\ Completion rates are calculated using data for the 12-month 
period of May 2008 through April 2009.
    \23\ Due to substantial changes in the business processes used 
to adjudicate the I-90, the completion rate is the 3-year service-
wide average from May 2006 through April 2009.
    \24\ Data for the I-290B was not collected until October 2008, 
therefore the completion rate time period is the 7-month period of 
October 2008 through April 2009.

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[[Page 33472]]

    Completion rates for the following immigration benefits are not 
utilized, due to the special nature of their processing or because 
there is no fee for the application:
     Application for Posthumous Citizenship (Form N-644); 
Refugee/Asylee Relative Petition (Form I-730); Application for T 
Nonimmigrant Status (Form I-914); and, Petition for U Nonimmigrant 
Status (Form I-918). Applicants for these form types are exempt from 
paying a fee.
     Biometric Services (processed by the Application Support 
Centers) are not included for each request type because specific costs 
can be directly assigned to these services. Factors of volume and 
completion rates are not necessary to assign processing costs to this 
product.
     Application for Temporary Protected Status (Form I-821) 
and Application for Suspension of Deportation or Special Rule 
Cancellation of Removal (Form I-881) are not included because these 
programs are temporary and USCIS does not assume their revenue streams 
will continue.
     The activities associated with processing immigrant visa 
packages do not include adjudicative hours and costs are driven by 
volume only.

VIII. Proposed Fee Adjustments

    USCIS costs exceed projected revenue by an average of $214 million 
each year, even after cuts in operations based on, among other things, 
reduced workload and appropriations for asylum, refugee, SAVE, the 
Office of Citizenship, and military naturalizations are taken into 
account. While USCIS has taken action to minimize or decrease its 
operating costs, the current deficit is too large to close using cost 
cutting measures alone without a drastically negative impact on 
service. USCIS must adjust the fee schedule to recover the full cost of 
processing immigration benefits, and to continue to maintain current 
service delivery standards.

A. Proposed Adjustments to IEFA Immigration Benefits

    After resource costs are identified, they are distributed to 
USCIS's primary processing activities in the ABC model. This process 
was more completely described in section V. Table 13 outlines total 
IEFA costs by activity.
[GRAPHIC] [TIFF OMITTED] TP11JN10.020

    Table 14 outlines IEFA costs by activity if FY 2011 appropriations 
for SAVE and Office of Citizenship are not approved. As noted 
previously, if appropriations differ from requested amounts, these 
costs must be recovered from fees.

[[Page 33473]]

[GRAPHIC] [TIFF OMITTED] TP11JN10.021

    The activity costs are then distributed to the applications. Table 
15 summarizes total revenue by immigration benefit request.

[[Page 33474]]

[GRAPHIC] [TIFF OMITTED] TP11JN10.022

     

    \25\ The Form I-687 was temporarily available only for 
Legalization Applications Pursuant to the Northwest Immigrant Rights 
Project (NWIRP) Settlement Agreement. Filing period ended Jan. 31, 
2010.

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[[Page 33475]]

    Finally, consolidating the budget realignment proposed in the 
President's budget and this rule, Table 16 depicts the current and 
proposed USCIS fees for immigration benefits and biometric services. 
This proposed fee schedule is based on the President's requested 
appropriation to fund the Asylum/Refugee surcharge and for SAVE and 
Office of Citizenship being enacted into law. In some applications, DHS 
proposes to reduce the fees and fee increases are mitigated by the 
President's requested appropriation; in those applications where a fee 
reduction is proposed, the President's requested appropriation would 
further reduce that fee. In one instance, the Application To Extend/
Change Nonimmigrant Status (Form I-539), the President's requested 
appropriation would alter a 2% increase in the modeled fee to a 5% 
decrease in fee. If a different appropriation is enacted, the final 
rule will adjust the fee schedule to accommodate the appropriated 
funding.

[[Page 33476]]

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[[Page 33477]]

B. Proposed Adjustments to Premium Processing Fee

    The Immigration and Nationality Act permits certain employment-
based immigration benefit applicants to request, for a fee, premium 
processing. INA sec. 286(u), 8 U.S.C. 1356(u). The premium processing 
fee is paid in addition to the base filing fee. Premium processing 
guarantees that USCIS will process an application within fifteen days. 
Id; 8 CFR 103.2(f). The Act provides that premium processing revenue 
shall be used to fund the cost of offering the service, as well as the 
cost of infrastructure improvements in adjudications and customer 
service processes.\26\ Id. USCIS, therefore, segregates revenue from 
the premium processing and dedicates it to transitioning USCIS from a 
paper-based operational environment to a paperless electronic case 
management environment.\27\ This program is an extensive, multi-year 
effort, estimated for completion over a five-year period. Unlike 
previous efforts to modernize USCIS, however, the Transformation 
program will implement near-term improvements as they are developed, 
allowing USCIS and its customers to benefit more quickly with improved 
service. Transformation will comprehensively touch every aspect of 
USCIS business operations such as information collection, storage, and 
data sharing; customer service and support, adjudicatory processes; 
staff roles and responsibilities; and information technology.
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    \26\ In the June 2007 Annual Report to Congress, the USCIS 
Ombudsman stated that ``premium processing is less costly than 
regular USCIS benefits processing because fewer repeat steps are 
necessary, fewer employees must handle these applications, and 
delayed processing inquiries are eliminated. USCIS has not provided 
any credible data to the contrary. The margin of income that USCIS 
can derive from premium processing is higher than from regular 
processing.'' and made the recommendation that ``USCIS conduct a 
thorough, transparent, and independent analysis of premium 
processing costs as compared with regular processing.'' Citizenship 
and Immigration Services Ombudsman, Annual Report to Congress, June 
2007, (Recommendation AR 2007-07). A subsequent review by the GAO, 
Immigration Application Fees: Costing Methodology Improvements Would 
Provide More Reliable Basis for Setting Fees (GAO-09-70, Jan. 23, 
2009), suggested that a decision to dedicate all premium revenues to 
transformation may create inequities where persons not paying for 
premium processing service still pay the cost of premium processing 
operations. While the substance of the reports addresses two 
separate matters, the unified concern is that undue cost and fee 
burdens are being placed on persons who do not receive premium 
processing services. Preliminary analysis of premium processing 
costs indicates that the marginal increase in cost of premium 
processing operations apart from regular processing is small.
    \27\ USCIS separately tracks, from an accounting standpoint, 
revenue receipts from each unique source (such as each application 
type) including premium processing. All Immigration Examinations Fee 
Account (IEFA) revenue is, however, deposited into a single account 
including premium processing fees, and all expenditures are made 
from this single unified account without separate tracking of 
spending tied to the specific fees. Ultimately, there is no direct, 
per dollar, matching of premium processing receipts used to fund 
adjudication costs, expenditures for infrastructure improvements, or 
USCIS operating expenses.
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    Transforming USCIS systems from paper to electronic is crucial to 
the success of improving immigration services. The current business 
model and supporting systems cannot meet anticipated demand and 
unanticipated workload surges. Among many improvements, after the 
transformation initiative is completed, USCIS expects much greater 
utilization of the electronic submission of applications and supporting 
documentation. Applicants and petitioners will be able to establish 
online accounts, track activity on their cases, update personal 
profiles, and will no longer need to resubmit duplicative biometric and 
biographic information when applying for future benefits.
    DHS proposes to adjust the premium processing fee by the percentage 
increase in inflation according to the Consumer Price Index (CPI) since 
the fee's inception. The CPI is issued by the Department of Labor's 
Bureau of Labor Statistics (BLS) and can found at http://www.bls.gov/cpi/cpi_dr.htm. In December 2000, Congress authorized the collection 
of a premium processing fee in the amount of $1,000.\28\ INA sec. 
286(u); 8 U.S.C. 1356(u). Although the law provides USCIS with explicit 
authority to adjust the fee for inflation based on the CPI, USCIS has 
not adjusted the fee since its inception in 2001. This adjustment was 
recently recommended by the Government Accountability Office. 
Government Accountability Office, Federal User Fees, GAO-09-180 (Jan. 
2009).\29\ Therefore, DHS proposes to increase the premium processing 
fee by applying the inflation rate since the fee's inception in June 
2001 until the date of publication of a final rule. For illustrative 
purposes, the proposed rule uses the September 2009 CPI.
---------------------------------------------------------------------------

    \28\ Public Law 106-553, App. B, tit. I, sec. 112, 114 Stat. 
2762, 2762A-68 (Dec. 21, 2000).
    \29\ http://www.gao.gov/new.items/d09180.pdf.
---------------------------------------------------------------------------

    USCIS uses the CPI for all urban consumers (CPI-U) because it is 
the primary CPI measure. The CPI-U covers approximately 87 percent of 
the total population.\30\ In June 2001, the CPI for all urban consumers 
was 178.0. In March 2010, the CPI-U was 217.631. The 22 percent 
increase to the CPI-U applied to the $1,000 fee results in a fee of 
$1,223 ($1,225 after it is rounded to the nearest $5). This calculation 
results in a proposed increase in the premium processing fee of $225. 
The final fee could be different from this proposed amount, because the 
CPI-U, upon which the fee adjustment is based, varies monthly; however, 
the final fee rule will be based upon the same methodology. The final 
rule will establish an amount based upon the latest published monthly 
CPI before the final rule publication. DHS also proposes to specify 
that USCIS will use the CPI-U to calculate all future inflation-based 
fee adjustments and will publish a Notice in the Federal Register 
annually (if applicable) to adjust this fee. See Proposed 8 CFR 
103.7(b).
---------------------------------------------------------------------------

    \30\ Consumer Price Index Overview. Bureau of Labor Statistics, 
Dec. 09, 2009. http://www.bls.gov/cpi/cpiovrvw.htm#item1.
---------------------------------------------------------------------------

C. Removal of Fees Based on Form Numbers

    Historically, USCIS has depended on paper files, which can make it 
difficult to efficiently process immigration benefits. As discussed 
above, USCIS is modernizing its processes and systems to accommodate 
and encourage greater use of electronic data submission to include e-
filing and electronic interaction. Although it is possible some 
applicants and petitioners may still choose to file paper forms, USCIS 
plans to encourage electronic filing. USCIS will continue to describe 
form names, numbers and filing instructions on its Internet Web site 
and public information phone scripts; however, USCIS may change form 
numbers as processes evolve.
    To avoid prescribing fees in a manner that could undermine the 
transformation process, DHS proposes fees based on form titles instead 
of form numbers. Proposed 8 CFR 103.7(b)(1). Although the current form 
number is included in the text of the regulation for each fee, 
introductory text is proposed that will allow the form number to change 
without affecting the fee. See Proposed 8 CFR 103.7(b).
    As stated previously, current USCIS form fees and those proposed in 
this rule are based on the average adjudication costs derived from the 
ABC model. Many forms are used to request a wide variety of benefits 
for which the evidentiary and adjudication requirements can be quite 
disparate. For example, Form I-129, Petition for Nonimmigrant Worker, 
is used for employers to petition for an alien to come to the United 
States as an H-1B, H-1C, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-1S, P-
2, P-2S, P-3, P-3S, Q-1, or R-1 nonimmigrant worker. Employers may also 
use this form to

[[Page 33478]]

request an extension of stay or change of status for an alien as an E-
1, E-2, or TN nonimmigrant. The complexity of the evidence required to 
document eligibility for each of the respective visas varies to some 
degree based on factors too numerous to outline here. For another 
example, Form I-360, Petition for Amerasian, Widow(er), or Special 
Immigrant, is used to classify an alien as: (1) An Amerasian; (2) A 
Widow or Widower; (3) A Battered or Abused Spouse or Child of a U.S. 
Citizen or Lawful Permanent Resident; or (4) A special immigrant 
defined as: A Religious Worker, Panama Canal Company Employee, Canal 
Zone Government Employee, U.S. Government in the Canal Zone Employee; 
Physician; International Organization Employee or Family Member; 
Juvenile Court Dependent; Armed Forces Member; Afghanistan or Iraqi 
national who supported the U.S. Armed Forces as a translator; or an 
Iraqi national who worked for, or on behalf of, the U.S. Government in 
Iraq. Several other examples exist. Future fee reviews may explore 
establishing the fee schedule with an even wider range of discrete fees 
than provided in this rule to more closely align the level of effort 
expended or required to the fee. As an initial step toward such 
refinement, this rule, by not proposing to promulgate fees based on a 
precise form number, will allow that form number to be changed as part 
of the initial phases of the transformation process.
    To further facilitate USCIS transformation, 8 CFR 103.7(b) is being 
restructured to clarify those fees that apply only to USCIS. DHS 
regulations contain provisions that to varying degrees govern facets of 
all of the immigration components of DHS--USCBP, USCIS and U.S. 
Immigration and Customs Enforcement (ICE). This rule applies only to 
USCIS. DHS will divide 8 CFR 103.7(b)(1) into separate regulatory 
provisions containing those fees that are managed by USCIS only and 
those that are shared with or managed by another immigration-related 
component of DHS. Further, 8 CFR 103.7(c) regarding fee waivers is 
restructured to list fees that can be waived, rather than those that 
cannot be waived, and moves the provisions of 8 CFR 103.7(c)(1) into 
more coherent paragraphs. In addition, the current requirement for an 
``unsworn declaration'' in 8 CFR 103.7(c) is overly technical for an 
individual who may qualify for a fee waiver and that requirement is 
proposed to be removed. Beyond the restructuring of 8 CFR 103.7(b) and 
(c), however, DHS does not propose to change any authority other than 
that of USCIS in any context. While DHS believes these structural 
changes will clarify fee waiver policies, DHS specifically requests 
comments on any unintended substantive effects. Finally, DHS proposes 
to redesignate and revise 8 CFR 103.7(d) to remove extraneous language, 
outdated terminology and excessive, internal, procedural detail.

D. Collection of Biometrics Fees Overseas

    DHS proposes to remove the provision in current regulations that 
exempts individuals who require fingerprinting and who reside outside 
of the United States at the time of filing an immigration benefit 
request from the requirement to submit the service fee for 
fingerprinting with the application or petition for immigration 
benefits. See current 8 CFR 103.2(e)(4)(ii). USCIS expects to collect 
biometrics from an increasing number of overseas residents in order to 
comply with the Adam Walsh Child Protection and Safety Act of 2006, 
which restricts the ability of any U.S. citizen or lawful permanent 
resident alien who has been convicted of any ``specified offense 
against a minor'' to file certain family-based immigration petitions, 
unless USCIS determines that the petitioner poses no risk to the 
intended beneficiaries of the petition. Public Law 109-248, secs. 
402(a) and (b), 120 Stat. 587, 622 (2006). Moreover, USCIS believes 
that overseas residents can or should be required to pay fees 
commensurate with the services being provided. The cost of conducting 
biometrics overseas should not be borne by other applicants. Thus, DHS 
proposes to eliminate this exemption. Projected biometric volumes for 
the FY 2010/2011 fee review include overseas volumes.

IX. Statutory and Regulatory Reviews

A. Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act (RFA), 5 U.S.C. 
601(6), USCIS examined the impact of this rule on small entities. A 
small entity may be a small business (defined as any independently 
owned and operated business not dominant in its field that qualifies as 
a small business per the Small Business Act, 15 U.S.C. 632), a small 
not-for-profit organization, or a small governmental jurisdiction 
(locality with fewer than fifty thousand people). Below is a summary of 
the small entity analysis. A more detailed analysis is available in the 
rulemaking docket at http://www.regulations.gov.
    Individuals rather than small entities submit the majority of 
immigration and naturalization benefit applications and petitions. 
Entities that would be affected by this rule are those that file and 
pay the alien's fees for certain immigration benefit applications. 
Consequently, there are four categories of USCIS benefits that are 
subject to a RFA analysis for this rule: Petition for a Nonimmigrant 
Worker (Form I-129); Immigrant Petition for an Alien Worker (Form I-
140); Civil Surgeon Designation; and the new Application for Regional 
Center under the Immigrant Investor Pilot Program (Form I-924).
    DHS does not believe that the increase in fees proposed in this 
rule will have a significant economic impact on a substantial number of 
small entities. Nevertheless, DHS is publishing this initial regulatory 
flexibility analysis to aid the public in commenting on the small 
entity impact of its proposed adjustment to the USCIS Fee Schedule. In 
particular, DHS requests information and data that would lead the 
agency to a different conclusion. DHS also seeks comment on significant 
alternatives that accomplish the objectives of this rulemaking and that 
minimize the rule's economic impact on small entities.
1. A Description of the Reasons Why the Action by the Agency Is Being 
Considered
    DHS proposes to adjust certain immigration and naturalization 
benefit fees charged by USCIS. USCIS has refined its cost accounting 
process and determined that current fees do not recover the full costs 
of services provided. Adjustment to the fee schedule is necessary to 
recover costs and maintain adequate service.
2. A Succinct Statement of the Objectives of, and Legal Basis for, the 
Proposed Rule
    DHS's objectives and legal authority for this proposed rule are 
discussed in section II of this preamble.
3. A Description--and, Where Feasible, an Estimate of the Number--of 
Small Entities to Which the Proposed Rule Will Apply
    Entities affected by this rule are those that file and pay fees for 
certain immigration benefit applications on behalf of an alien. These 
applications include Form I-129 (Petition for Nonimmigrant Worker), 
Form I-140 (Immigrant Petition for Alien Worker), Civil Surgeon 
Designation, and Form I-924 (Application for Regional Center). Annual 
numeric estimates of the small entities impacted by this fee increase 
total: Form I-129 (87,220 entities), Form

[[Page 33479]]

I-140 (44,500 entities), Civil Surgeon Designation (1,200 entities), 
and Form I-924 (132 entities).
    This rule applies to small entities, including businesses, non-
profit organizations, and governmental jurisdictions filing for the 
above benefits. Forms I-129 and I-140, will see a number of industry 
clusters impacted by this rule (see Appendix A of the Small Entity 
Analysis for a list of impacted industry codes). The fee for Civil 
Surgeon designation will impact physicians seeking to be designated as 
a Civil Surgeon. Finally, the Form I-924, will impact any entity 
requesting approval and designation to be a Regional Center under the 
Immigrant Investor Pilot Program.
(a) Petition for a Nonimmigrant Worker (Form I-129) and Immigrant 
Petition for an Alien Worker (Form I-140)
    USCIS proposes to increase the fee for Petition for a Nonimmigrant 
Worker (Form I-129) from $320 to $325, a $5 (1.5%) increase. USCIS 
proposes to increase the fee for Immigrant Petition for an Alien Worker 
(Form I-140) from $475 to $580, a $105 (22%) increase. In order not to 
underestimate the economic impact of this proposed rule on small 
entities, this analysis uses a fee structure based on fees without 
including appropriated funds. Therefore, the fees analyzed here are 
Form I-129 at $355 ($35 increase) and Form I-140 at $630 ($155 
increase).
    Using fiscal year 2008 data on actual filings of Form I-129 and I-
140 petitions, USCIS collected internal data for each filing 
organization including the name, Employer Identification Number (EIN), 
city, State, zip code, and number/type of filings. Each entity may make 
multiple filings; for instance, there were 525,709 I-129 and I-140 
petitions, but only 148,289 unique entities.
    Since the filing statistics do not contain information such as the 
revenue of the business, a third party source of data was necessary to 
help find this information. USCIS utilized the comprehensive online 
database from Reference USA to help determine an organization's small 
entity status and then applied SBA guidelines to the entities under 
analysis.\31\
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    \31\ The Reference USA Web site can be found at: http://www.referenceusagov.com.
---------------------------------------------------------------------------

    USCIS devised a methodology to conduct the small entity analysis 
based on a representative sample of the potentially impacted 
population. To achieve a 95% confidence level and a 5% confidence 
interval on a population of 148,289 entities, USCIS used the standard 
statistical formula to determine a minimum sample size of 383 entities 
was necessary.
    USCIS conducted searches on 891 randomly selected entities from a 
population of 148,289 unique entities. Based on past experience, USCIS 
expected to be able to find about 50 to 60 percent of the filing 
organizations in the Reference USA database, which includes information 
on approximately 14 million U.S. entities.
    Accordingly, USCIS created a sample size much greater than the 383 
minimum necessary in order to allow for these non-matches (filing 
organizations that could not be found in the Reference USA database). 
The 891 searches resulted in 512 instances where the name of the filing 
organization was successfully matched with Reference USA and 379 
instances where the name of the filing organization was not found in 
the Reference USA database. Based on previous experience conducting 
regulatory flexibility analyses, USCIS assumes filing organizations not 
found in the Reference USA database are likely to be small entities and 
in order not to underestimate the number of small entities impacted by 
this rule, USCIS makes the conservative assumption to consider all of 
these 379 non-matched entities as small entities for the purpose of 
this analysis. Further, 52 of the 512 matched entities did not contain 
revenue or employee count data. Additional Internet research allowed us 
to classify all 52 as small entities: 5 small non-profit/small 
governmental jurisdiction and 47 small businesses. Among the 512 
matches, 336 were determined to be small entities based on their 
revenue or employee count and their NAICS code. Combining non-matches 
(379), small non-profit/governmental jurisdiction (22), matches missing 
data (52), and small entity matches (336), enables us to classify 789 
of 891 entities as small.
    With an aggregated total of 789 out of a sample size of 891, DHS 
inferred that a majority, or 88.6%, of the entities filing Form I-129 
and Form I-140 petitions were small entities. Furthermore, 332 of the 
891 searched were small entities with the sales revenue data needed in 
order to estimate the economic impact of the proposed rule. Since these 
332 were a small entity subset of the random sample of 891 searches, 
they were statistically significant in the context of this research.
    In order to calculate the economic impact of this rule, DHS 
estimated the total costs associated with the proposed fee increase for 
each entity, divided by sales revenue of that entity. For example, an 
entity with $100,000 in sales revenue filed one Form I-129 and one Form 
I-140. Based on the proposed fee increase of $35 for Form I-129 and 
$155 for Form I-140, this would amount to a 0.19% economic impact on 
the entity.\32\
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    \32\ Reference USA reports sales revenue for entities as a range 
of values. For this analysis, DHS utilized the lower end of the 
range in order to assure the potential economic impact of the 
proposed rule was not underestimated. For example, if Reference USA 
reported a filing organization had revenue between $500,000 and 
$750,000, this analysis assumed the revenue was $500,000.
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    Among the 332 small entities with reported revenue data, all 
experienced an economic impact considerably less than 1.0%. In fact, 
using the above methodology, the greatest economic impact imposed by 
this fee change totaled 0.19% and the smallest totaled 0.00002%. The 
average impact on all 332 small entities with revenue data was 0.055%.
    Finally, the impact on small entities was examined by looking at 
each form separately. Since entities can file multiple forms, the 
analysis considers exactly how many forms each entity submitted. For 
example, an entity with $100,000 in sales revenue that filed four Form 
I-129s would experience an economic impact of 0.14% of revenue; while 
an entity with sales revenue of $500,000 filing three Form I-140s would 
experience an economic impact of 0.093% All small entities filing Form 
I-129s experienced an average impact of 0.0215% (range of impact from 
0.000004% to 0.525%). Similarly, the average impact on filers of Form 
I-140 of 0.0491% was also insignificant (range of impact from 0.00002% 
to 0.155.
    The evidence suggests that the additional fee imposed by this rule 
does not represent a significant economic impact on these entities.
(b) Civil Surgeon Designation
    USCIS estimates that it will receive a request for designation as a 
civil surgeon from 1,160 doctors in both FY 2010 and FY 2011. According 
to the Small Business Administration (SBA) Small Business Size 
Regulations at 13 CFR part 121, offices of physicians (except mental 
health professionals) are considered small entities when their annual 
sales are less than $10 million. USCIS has no records on the average 
annual revenue for the doctors registered as civil surgeons. For the 
purposes of this analysis, it is assumed that they all have annual 
gross revenue of under $10 million.\33\ Therefore, it is

[[Page 33480]]

estimated that approximately 1,200 individuals per year that would file 
a request for designation as a civil surgeon would be affected by this 
rule, with all of them being classified as small entities.
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    \33\ NAICS Code 62111. See U. S. Small Business Administration 
Table of Small Business Size Standards Matched to North American 
Industry Classification System Codes. http://www.sba.gov/idc/groups/public/documents/sba_homepage/serv_sstd_tablepdf.pdf.
---------------------------------------------------------------------------

    The rule proposes to establish a processing fee of $615 for the 
Civil Surgeon Program. This analysis utilized fees calculated without 
any appropriated funds, resulting in a $665 fee for the Civil Surgeon 
analysis.
    To illustrate whether or not a rule could have a significant 
impact, guidelines suggested by the SBA Office of Advocacy provide that 
the cost of the proposed regulation may exceed one percent of the gross 
revenues of the entities in a particular sector or five percent of the 
labor costs of the entities in the sector.\34\
---------------------------------------------------------------------------

    \34\ See SBA Office of Advocacy, A Guide for Government 
Agencies: How to Comply with the Regulatory Flexibility Act, 
18,.available at: http://www.sba.gov/advo/laws/rfaguide.pdf.
---------------------------------------------------------------------------

    According to the U.S. Department of Labor, Bureau of Labor 
Statistics (BLS), Office of Occupational Employment Statistics, the 
median annual wage for Family and General Practitioners is about 
$161,490. Thus, the costs added by this rule are only 0.41 percent of 
the salary costs for one doctor.\35\ As stated before, the average 
total revenue of the civil surgeon is unknown. Nonetheless, for the new 
$665 fee to exceed one percent of annual revenues, sales would be 
required to be $66,500 per year or less.
---------------------------------------------------------------------------

    \35\ $665 divided by $161,490.
---------------------------------------------------------------------------

    USCIS believes that the costs of this rulemaking to small entities 
would not exceed one percent of the gross revenues of the entities in 
the affected sector. Using the average annual labor costs and the 
percentage of the affected entities' annual revenue stream as 
guidelines, USCIS believes that the civil surgeon designation fee 
proposed by this rule would not have a significant economic impact on a 
substantial number of small entities.
(c) Application for Regional Center Under the Immigrant Investor Pilot 
Program (Form I-924)
    The Immigrant Investor Program, also known as EB-5, was created by 
Congress in 1990 under 203(b)(5) of the Immigration and Nationality Act 
(INA) to stimulate the U.S. economy through job creation and capital 
investment by alien investors. Alien investors have the opportunity to 
obtain lawful permanent residence in the United States for themselves, 
their spouses, and their minor unmarried children by making a certain 
level of capital investment and associated job creation or 
preservation. There are two distinct EB-5 pathways for an alien 
investor to gain lawful permanent residence: the Basic Program and the 
Regional Center Pilot Program. Both programs require that the alien 
investor make a capital investment of either $500,000 or $1,000,000 
(depending on whether the investment is in a Targeted Employment Area 
or not) in a new commercial enterprise located within the United 
States.
    USCIS proposes a $6,230 Immigrant Investor fee for entities 
requesting approval and designation as a Regional Center under the 
Immigrant Investor Pilot Program. The new application process will 
require the same information from applicants that is currently 
required, but will standardize/simplify the reporting format. This 
analysis utilized fees calculated without any appropriated funds, 
resulting in a $6,820 fee for the EB-5 Regional Center analysis.
    DOS reports that 4,218 EB-5 visas were issued in 2009.\36\ USCIS 
estimates that 1,687 of these are primary aliens (investors) and the 
remainder are dependents.\37\ Typically, ninety percent of EB-5 
investors participate in Regional Center-related projects, while the 
others invest individually. Therefore, USCIS estimates FY 2009 Regional 
Center investors at 1,518 aliens.\38\ As of October 1, 2009, there were 
79 USCIS-approved Regional Centers, which equates to an average of 19.2 
new investors per Regional Center in FY 2009.
---------------------------------------------------------------------------

    \36\ http://www.travel.state.gov/visa/frvi/statistics/statistics_4581.html.
    \37\ 4,218/2.5 = 1,687 investors. USCIS estimates that 2.5 visas 
are issued for each primary alien.
    \38\ 90% x 1,687 = 1,518.
---------------------------------------------------------------------------

    Each Regional Center receives a minimum investment from every alien 
investor of $500,000. A search of Regional Center Web sites shows that 
most charge each investor a ``syndication fee'' of $20,000 to 
$50,000.\39\ Further, during the application process, Regional Centers 
are required to provide a detailed statement regarding the amount and 
source of non-alien capital and a description of the planned 
promotional efforts. Combining the data, an average of 19.2 new 
investors, each investing $500,000, leads to an average additional 
investment per Regional Center of $9.6 million in FY 2009. While 
Regional Centers are prohibited from using alien investments to pay for 
overhead expenses, comparing FY 2009 average Regional Center investor 
receipts to the $6,820 application fee provides a reasonable context in 
which to consider the economic impact of the proposed fee. The proposed 
Regional Center fee of $6,820 would represent only 0.07104% of the $9.6 
million average additional investment per Regional Center in FY 2009. 
The proposed application fee of $6,820 is only collected once and is 
not a recurring fee.
---------------------------------------------------------------------------

    \39\ Three exemplar Web sites are provided: http://www.cmbeb5visa.com/faq_timeline.aspx; http://www.unyrc.com/process.html; http://www.eb5dc.com/resources/CARc_AILA_Price_Plan_2_25_10_Extension.pdf. Additionally, a list of USCIS 
approved Regional Centers is available online at: http://www.uscis.gov/eb-5centers.
---------------------------------------------------------------------------

    The data indicates there are 79 approved Regional Centers in the 
United States and its territories. An analysis of these 79 Regional 
Centers shows 66 of these Regional Centers are owned by small 
businesses and possibly one of these Regional Centers is owned by a 
small non-profit organization. Consequently 67 of the existing 79 
Regional Centers, or 85%, are small entities. Based on increased 
interest in the EB-5 program, USCIS estimates at least 132 new Regional 
Centers will be approved each year over the next two years. Since the 
overwhelming majority of these Regional Centers are small entities, for 
the purpose of this analysis, DHS will assume all 132 new Regional 
Centers are small entities.
    In summary, even though a significant number of these Regional 
Centers are small entities, considering this proposed fee represents 
only 0.07104% of the average additional investment per Regional Center 
in FY 2009, DHS believes this $6,820 fee does not constitute a 
significant economic impact on these entities. Nevertheless, DHS has 
prepared an Initial Regulatory Flexibility Analysis, included it in the 
proposed rule, and requests public comment on the impact of this rule 
on small entities.
4. A Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Proposed Rule, Including an Estimate of 
the Classes of Small Entities That Will Be Subject to the Requirement 
and the Types of Professional Skills
    (a). Forms I-129 and I-140:
    The proposed rule does not directly impose any new or additional 
``reporting'' or ``recordkeeping'' requirements on filers of Form I-
129. The proposed rule does not require any new professional skills for 
reporting.
    USCIS proposes to increase the fee for Petition for a Nonimmigrant 
Worker (Form I-129) from $320 to $325, a $5 (1.5%) increase. USCIS 
proposes to

[[Page 33481]]

increase the fee for Immigrant Petition for an Alien Worker (Form I-
140) from $475 to $580, a $105 (22%) increase. In order not to 
underestimate the economic impact of this proposed rule on small 
entities, this analysis uses a fee structure based on fees without 
including appropriated funds. Therefore, the fees analyzed here are 
Form I-129 at $355 ($35 increase) and Form I-140 at $630 ($155 
increase).
    In order to calculate the economic impact of this rule, DHS 
estimated the total costs associated with the proposed fee increase for 
each entity, divided by sales revenue of that entity. For example, an 
entity with $100,000 in sales revenue filed one Form I-129 and one Form 
I-140. Based on the proposed fee increase of $35 for Form I-129 and 
$155 for Form I-140, this would amount to a 0.19% economic impact on 
the entity.\40\
---------------------------------------------------------------------------

    \40\ Reference USA reports sales revenue for entities as a range 
of values. For this analysis, DHS utilized the lower end of the 
range in order to assure the potential economic impact of the 
proposed rule was not underestimated. For example, if Reference USA 
reported a filing organization had revenue between $500,000 and 
$750,000, this analysis assumed the revenue was $500,000.
---------------------------------------------------------------------------

    Among the 332 small entities with reported revenue data, all 
experienced an economic impact considerably less than 1.0%. In fact, 
using the above methodology, the greatest economic impact imposed by 
this fee change totaled 0.19% and the smallest totaled 0.00002%. The 
average impact on all 332 small entities with revenue data was 0.055%.
    Analyzed individually by form and weighted by the number of 
petitions actually filed, the economic impact upon small entities was 
also insignificant. All small entities filing I-129 experienced an 
average impact of 0.0215% (range of impact from 0.000004% to 0.525%). 
Similarly, the average weighted impact on filers of Form I-140 of 
0.0491% was also insignificant (range of impact from 0.00002% to 
0.155%). These results agree with the results of the combined sample.
    (b) Civil Surgeon Designation:
    The proposed rule does not directly impose any new or additional 
``reporting'' or ``recordkeeping'' requirements on filers of Form I-
129, Form I-140, or Civil Surgeon Designation. Also, the proposed rule 
does not require any new professional skills for reporting. The rule 
proposes to establish a processing fee of $615 for the Civil Surgeon 
Program. This analysis utilized fees calculated without any 
appropriated funds, resulting in a $665 fee for the Civil Surgeon 
analysis.
    To illustrate whether or not a rule could have a significant 
impact, guidelines suggested by the SBA Office of Advocacy provide that 
the cost of the proposed regulation may exceed one percent of the gross 
revenues of the entities in a particular sector or five percent of the 
labor costs of the entities in the sector.\41\
---------------------------------------------------------------------------

    \41\ See SBA Office of Advocacy, A Guide for Government 
Agencies: How to Comply with the Regulatory Flexibility Act, 18, 
available at: http://www.sba.gov/advo/laws/rfaguide.pdf.
---------------------------------------------------------------------------

    According to the U.S. Department of Labor, Bureau of Labor 
Statistics (BLS), Office of Occupational Employment Statistics, the 
median annual wage for Family and General Practitioners is about 
$161,490. Thus, the costs added by this rule are only 0.41 percent of 
the salary costs for one doctor.\42\ As stated before, the average 
total revenue of the civil surgeon is unknown. Nonetheless, for the new 
$665 fee to exceed one percent of annual revenues, sales would be 
required to be $66,500 per year or less.
---------------------------------------------------------------------------

    \42\ $665 divided by $161,490.
---------------------------------------------------------------------------

    Therefore, USCIS believes that the costs of this rulemaking to 
small entities would not exceed one percent of the gross revenues of 
the entities in the affected sector. Using both the average annual 
labor costs and the percentage of the affected entities' annual revenue 
stream as guidelines, the evidence suggests that the civil surgeon 
designation fee proposed by this rule would not have a significant 
economic impact on a substantial number of small entities.
    (c) Form I-924:
    A standardized form and instructions for the filing of proposals 
requesting the Regional Center designation does not currently exist. 
The lack of a standardized form has resulted in confusion on the part 
of the public regarding the specific documentation that is required in 
order to meet the eligibility requirements. Applicants have not paid 
any fees to cover costs associated with program activities. As a 
result, costs have been paid by fee-paying applicants and petitioners 
within the fee levels of other applications.
    The new Form I-924, Application for Regional Center under the 
Immigrant Investor Pilot Program, will serve the purpose of 
standardizing requests for benefits and ensuring that the basic 
information required to determine eligibility is provided by applicants 
which will alleviate content inconsistencies among applicants' 
submissions. Form I-924 will support a more efficient process for 
adjudication of Regional Center proposals. Also, the proposed rule does 
not require any new professional skills beyond those currently in 
place.
    USCIS proposes a $6,230 Immigrant Investor fee for entities 
requesting approval and designation as a Regional Center under the 
Immigrant Investor Pilot Program. The new application process will 
require the same information from applicants that is currently 
required, but will standardize/simplify the reporting format. This 
analysis utilized fees calculated without any appropriated funds, 
resulting in a $6,820 fee for the EB-5 Regional Center analysis.
    DOS reports that 4,218 EB-5 visas were issued in 2009.\43\ USCIS 
estimates that 1,687 of these are primary aliens (investors) and the 
remainder are dependents.\44\ Typically, ninety percent of EB-5 
investors participate in Regional Center-related projects, while the 
others invest individually. Therefore, USCIS estimates FY 2009 Regional 
Center investors at 1,518 aliens.\45\As of October 1, 2009, there were 
79 USCIS-approved Regional Centers, which equates to an average of 19.2 
new investors per Regional Center in FY 2009.
---------------------------------------------------------------------------

    \43\ http://www.travel.state.gov/visa/frvi/statistics/statistics_4581.html.
    \44\ 4,218/2.5 = 1,687 investors. USCIS estimates that 2.5 visas 
are issued for each primary alien.
    \45\ 90% x 1,687 = 1,518.
---------------------------------------------------------------------------

    Each Regional Center receives a minimum investment from every alien 
investor of $500,000. A search of Regional Center Web sites shows that 
most charge each investor a ``syndication fee'' of $20,000 to 
$50,000.\46\ Further, during the application process, Regional Centers 
are required to provide a detailed statement regarding the amount and 
source of non-alien capital and a description of the planned 
promotional efforts. Combining the data, an average of 19.2 new 
investors, each investing $500,000, leads to an average additional 
investment per Regional Center of $9.6 million in FY 2009. While 
Regional Centers are prohibited from using alien investments to pay for 
overhead expenses, comparing FY 2009 average Regional Center investor 
receipts to the $6,820 application fee provides a reasonable context in 
which to consider the economic impact of the proposed fee. The proposed 
Regional Center fee of

[[Page 33482]]

$6,820 would represent only 0.07104% of the $9.6 million average 
additional investment per Regional Center in FY 2009. The proposed 
application fee of $6,820 is only collected once and is not a recurring 
fee.
---------------------------------------------------------------------------

    \46\ Three exemplar Web sites are provided: http://www.cmbeb5visa.com/faq_timeline.aspx; http://www.unyrc.com/process.html; http://www.eb5dc.com/resources/CARc_AILA_Price_Plan_2_25_10_Extension.pdf. Additionally, a list of USCIS 
approved Regional Centers is available online at: http://www.uscis.gov/eb-5centers.
---------------------------------------------------------------------------

    In summary, even though a significant number of these Regional 
Centers are small entities, considering this proposed fee represents 
only 0.07104% of the average additional investment per Regional Center 
in FY 2009, DHS believes this $6,820 fee does not constitute a 
significant economic impact on these entities. Nevertheless, DHS has 
prepared an Initial Regulatory Flexibility Analysis, included it in the 
proposed rule, and requests public comment on the impact of this rule 
on small entities.
5. An Identification, to the Extent Practicable, of All Relevant 
Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rule
    DHS is unaware of any duplicative, overlapping, or conflicting 
Federal rules. As noted below, DHS seeks comment and information about 
any such rules.
6. Description of Any Significant Alternatives to the Proposed Rule 
That Accomplish the Stated Objectives of Applicable Statutes and That 
Minimize Any Significant Economic Impact of the Proposed Rule on Small 
Entities, Including Alternatives Considered Such as: (1) Establishment 
of differing compliance or reporting requirements or timetables that 
take into account the resources available to small entities; (2) 
clarification, consolidation, or simplification of compliance and 
reporting requirements under the rule for such small entities; (3) use 
of performance rather than design standards; (4) any exemption from 
coverage of the rule, or any part thereof, for such small entities
    The INA provides for the collection of fees at a level that will 
ensure recovery of the full costs of providing adjudication and 
naturalization services, including services provided without charge to 
asylum applicants and certain other immigrant applicants. In addition, 
DHS must fund the costs of providing services without charge by using a 
portion of the filing fees that are collected for other immigration 
benefits. Without an increase in fees, USCIS will not be able to 
provide petitioners with the same level of service for immigration and 
naturalization benefits. DHS has considered the alternative of 
maintaining fees at the current level with reduced services and 
increased wait times. While most immigration benefit fees apply to 
individuals, as described above, some also apply to small entities. 
USCIS seeks to minimize the impact on all parties, but in particular 
small entities. An alternative to the increased economic burden of the 
proposed rule is to maintain fees at their current level for small 
entities. The strength of this alternative is that it assures no 
additional fee-burden is placed on small entities; however, this 
alternative also would cause negative impacts to small entities.
    Without the fee adjustments proposed in this rule, significant 
operational changes would be necessary. Given current filing volume and 
other economic considerations, additional revenue is necessary to 
prevent immediate and significant cuts in planned spending. These 
spending cuts would include reductions in areas such as Federal and 
contract staff, infrastructure spending on information technology and 
facilities, travel, and training. Depending on the actual level of 
workload received, these operational changes would result in longer 
application processing times, a degradation in customer service, and 
reduced efficiency over time. These cuts would ultimately represent an 
increased cost to small entities by causing delays in benefit 
processing and less customer service.
7. Questions for Comment To Assist Regulatory Flexibility Analysis
     Please provide comment on the numbers of small entities 
that may be impacted by this rulemaking.
     Please provide comment on any or all of the provisions in 
the proposed rule with regard to the economic impact of this rule, 
paying specific attention to the effect of the rule on small entities 
in light of the above analysis.
     Please provide comment on any significant alternatives DHS 
should consider in lieu of the changes proposed by this rule.
     Please describe ways in which the rule could be modified 
to reduce burdens for small entities consistent with the Immigration 
and Nationality Act and the Chief Financial Officers Act requirements.
     Please identify all relevant Federal, State or local rules 
that may duplicate, overlap or conflict with the proposed rule.

B. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (UMRA) requires certain 
actions to be taken before an agency promulgates any notice of 
rulemaking ``that is likely to result in promulgation of any rule that 
includes any Federal mandate that may result in the expenditure by 
State, local and Tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year.'' 2 U.S.C. 1532(a). While this rule may 
result in the expenditure of more than $100 million by the private 
sector annually, the rulemaking is not a ``Federal mandate'' as defined 
for UMRA purposes, 2 U.S.C. 658(6), as the payment of immigration 
benefit fees by individuals or other private sector entities is, to the 
extent it could be termed an enforceable duty, one that arises from 
participation in a voluntary Federal program, applying for immigration 
status in the United States. 2 U.S.C. 658(7)(A)(ii). Therefore, no 
actions were deemed necessary under the provisions of the UMRA.

C. Small Business Regulatory Enforcement Fairness Act

    This rulemaking is a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. This rulemaking will 
result in an annual effect on the economy of more than $100 million, in 
order to generate the revenue necessary to fully fund the increased 
cost associated with the processing of immigration benefit applications 
and petitions and associated support benefits; the full cost of 
providing similar benefits to asylum and refugee applicants; and the 
full cost of similar benefits provided to other immigrants, as 
specified in the proposed regulation, at no charge. The increased costs 
will be recovered through the fees charged for various immigration 
benefit applications.

D. Executive Order 12866

    This rule is considered by the Department of Homeland Security to 
be an economically significant regulatory action under Executive Order 
12866, section 3(f)(1), Regulatory Planning and Review. Accordingly, 
this rule has been reviewed by the Office of Management and Budget.
    The implementation of this rule would provide USCIS with an average 
of $209 million in FY 2010 and FY 2011 annual fee revenue, based on a 
projected annual fee-paying volume of 4.4 million immigration benefit 
requests and 1.9 million requests for biometric services, over the fee 
revenue that would be collected under the current fee structure. This 
increase in revenue will be used pursuant to subsections 286(m) and (n) 
of the INA, 8 U.S.C. 1356(m) and (n), to fund the full costs of 
processing immigration benefit applications and associated support 
benefits; the full cost of providing similar benefits to asylum

[[Page 33483]]

and refugee applicants; and the full cost of similar benefits provided 
to others at no charge.
    If USCIS does not adjust the current fees to recover the full costs 
of processing immigration benefit requests, USCIS would be forced to 
enact additional significant spending reductions resulting in a 
reversal of the considerable progress it has made over the last several 
years to reduce the backlogs of immigration benefit filings, to 
increase the integrity of the immigration benefit system, and to 
protect national security and public safety. The revenue increase is 
based on USCIS costs and projected volumes that were available at the 
time the rule was drafted. USCIS has placed in the rulemaking docket a 
detailed analysis that explains the basis for the annual fee increase 
and has included an accounting statement detailing the annualized costs 
of the proposed rule below.
[GRAPHIC] [TIFF OMITTED] TP11JN10.024

E. Executive Order 13132

    This rulemaking 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 Homeland Security has 
determined that this rulemaking does not have sufficient Federalism 
implications to warrant the preparation of a federalism summary impact 
statement.

F. Executive Order 12988

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

G. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 
Stat. 163 (1995) (PRA), all Departments are required to submit to OMB, 
for review and approval, any reporting or recordkeeping requirements 
inherent in a rule. Accordingly, DHS is requesting comments on two 
information collections for 60-days until August 10, 2010. Comments on 
these information collections should address one or more of the 
following four points:
    (1) Evaluate whether the 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 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.
Overview of Information Collection: Immigration Investor Pilot Program
    DHS proposes to require the use of new Form I-924, Application for 
Regional Center under the Immigrant Investor Pilot Program, and Form I-
924A, Supplement to Form I-924. This form is considered an information 
collection and is covered under the Paperwork Reduction Act.
    a. Type of information collection: New information collection.
    b. Abstract: This collection will be used by individuals and 
businesses to file a request for USCIS approval and designation as a 
regional center on behalf of an entity under the Immigrant Investor 
Pilot Program.
    c. Title of Form/Collection: Application for Regional Center under 
the Immigrant Investor Pilot Program.
    d. Agency form number, if any, and the applicable component of the 
Department of Homeland Security sponsoring the collection: Form I-924 
and Form 924A; U.S. Citizenship and Immigration Services.
    e. Affected public who will be asked or required to respond: 
Individuals and businesses.
    f. An estimate of the total number of respondents: 132 respondents 
filing Form I-924, and 116 respondents filing Form I-924A.
    g. Hours per response: Form I-924 at 40 hours per response, and 
Form I-924A at 3 hours per response.
    h. Total Annual Reporting Burden: 4,428 hours.
Overview of Information Collection: Civil Surgeons Fee
    This rule proposes a fee for applying for a civil surgeon 
designation. To apply for a civil surgeon designation, USCIS requires a 
civil surgeon submit the following information:
     A letter to the District Director requesting 
consideration,
     A copy of a current medical license (in the State in which 
the physician seeks to complete immigration medical examinations),
     A current resume that shows at least 4 years of 
professional experience (not including residency or medical school), 
and
     Two signature cards showing the physician's name and 
signature.
    This information collection is required to determine whether a 
physician meets the statutory and regulatory requirement for civil 
surgeon designation. For example, all documents are reviewed to 
determine whether the physician has a currently valid medical license 
and whether the physician has had any action taken against him or her 
by the medical licensing authority of the State. If the civil surgeon 
designation request is accepted, the physician is

[[Page 33484]]

included in USCIS' Civil Surgeon locator and is authorized to complete 
Form I-693 for an applicant's adjustment of status.
    a. Type of information collection: New information collection.
    b. Abstract: This information collection is required to determine 
whether a physician meets the statutory and regulatory requirement for 
civil surgeon designation.
    c. Title of Form/Collection: Application for Civil Surgeon 
Designation Registration.
    d. Agency form number, if any, and the applicable component of the 
Department of Homeland Security sponsoring the collection: No form 
number; U.S. Citizenship and Immigration Services.
    e. Affected public who will be asked or required to respond: 
Individuals and businesses.
    f. An estimate of the total number of respondents: 1,200 
respondents.
    g. Hours per response: One hour.
    h. Total Annual Reporting Burden: 1,200 hours.
    Comments concerning these collections and forms can be submitted to 
the Department of Homeland Security, USCIS, Chief, Regulatory Products 
Division, Clearance Office, 111 Massachusetts Avenue, NW., Washington, 
DC 20529-2210.
    The changes to the proposed fees will require minor amendments to 
immigration benefit and petition forms to reflect the new fees. The 
necessary changes to the annual cost burden and to the forms will be 
submitted to OMB using OMB Form 83-C, Correction Worksheet, when this 
proposed rule is submitted to OMB as a final rule.

List of Subjects

8 CFR Part 103

    Administrative practice and procedures; Authority delegations 
(government agencies); Freedom of Information; Privacy; Reporting and 
recordkeeping requirements; and Surety bonds.

8 CFR Part 204

    Administrative practice and procedure; Immigration; Reporting and 
recordkeeping requirements.

8 CFR Part 244

    Aliens, Reporting and recordkeeping requirements.

8 CFR Part 274a

    Administrative practice and procedure, Aliens, Employment, 
Penalties, Reporting and recordkeeping requirements.
    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations is proposed to be amended as follows:

PART 103--POWERS AND DUTIES; AVAILABILITY OF RECORDS

    1. The authority citation for part 103 continues to read as 
follows:

    Authority: 5 U.S.C. 301, 552, 552(a); 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.


Sec.  103.2  [Amended]

    2. Section 103.2 is amended by:
    a. Removing paragraph (e)(4)(ii);
    b. Redesignating paragraphs (e)(4)(iii), and (e)(4)(iv), as 
paragraphs (e)(4)(ii), and (e)(4)(iii), respectively; and by
    c. Removing paragraph (f).
    3. Section 103.7 is amended by:
    a. Revising paragraphs (b) and (c);
    b. Redesignating paragraph (d) as paragraph (f);
    c. Adding new paragraphs (d) and (e); and by
    d. Revising newly redesignated paragraph (f).
    The revisions and additions read as follows:


Sec.  103.7  Fees.

* * * * *
    (b) Amounts of fees. (1) Prescribed fees and charges. (i) USCIS 
fees. A request for immigration benefits submitted to USCIS must 
include the required fee as prescribed under this section. The fees 
prescribed in this section are associated with the benefit, the 
adjudication, and the type of request and not solely determined by the 
form number listed below. The term ``form'' as defined in 8 CFR part 1, 
may include a USCIS-approved electronic equivalent of such form as 
USCIS may prescribe on its official Web site at http//www.uscis.gov.
    (A) Certification of true copies: $2.00 per copy.
    (B) Attestation under seal: $2.00 each.
    (C) Biometric services (Biometric Fee). For capturing, storing, and 
using biometric information (Biometric Fee). A service fee of $85 will 
be charged for any individual who is required to have biometric 
information captured, stored, and used in connection with an 
application or petition for certain immigration and naturalization 
benefits (other than asylum), whose application fee does not already 
include the charge for biometric services. No biometric service fee is 
charged when:
    (1) A written request for an extension of the approval period is 
received by USCIS prior to the expiration date of approval of an 
Application for Advance Processing of Orphan Petition, if a Petition to 
Classify Orphan as an Immediate Relative has not yet been submitted in 
connection with an approved Application for Advance Processing of 
Orphan Petition. This extension without fee is limited to one occasion. 
If the approval extension expires prior to submission of an associated 
Petition to Classify Orphan as an Immediate Relative, then a complete 
application and fee must be submitted for a subsequent application.
    (2) There is no fee for the associated benefit request that was, or 
is, being submitted.
    (D) Immigrant visas. For processing immigrant visas issued by the 
Department of State in embassies or consulates: $165.
    (E) Request for a search of indices to historical records to be 
used in genealogical research (Form G-1041): $20. The search fee is not 
refundable.
    (F) Request for a copy of historical records to be used in 
genealogical research (Form G-1041A): $20 for each file copy from 
microfilm, or $35 for each file copy from a textual record. In some 
cases, the researcher may be unable to determine the fee, because the 
researcher will have a file number obtained from a source other than 
USCIS and therefore not know the format of the file (microfilm or hard 
copy). In this case, if USCIS locates the file and it is a textual 
file, USCIS will notify the researcher to remit the additional $15. 
USCIS will refund the records request fee only when it is unable to 
locate the file previously identified in response to the index search 
request.
    (G) Application to Replace Permanent Resident Card (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: $365.
    (H) Application for Replacement/Initial Nonimmigrant Arrival-
Departure Document (Form I-102). For filing a petition for an 
application for Arrival/Departure Record (Form I-94) or Crewman's 
Landing Permit (Form I-95), in lieu of one lost, mutilated, or 
destroyed: $330.
    (I) Petition for a Nonimmigrant Worker (Form I-129). For filing a 
petition for a nonimmigrant worker: $325.
    (J) Petition for Nonimmigrant Worker in CNMI (Form I-129CW). For an 
employer to petition on behalf of one or more beneficiaries: $325 plus 
a supplemental CNMI education funding fee of $150 per beneficiary per 
year. The

[[Page 33485]]

CNMI education funding fee cannot be waived.
    (K) Petition for Alien Fianc[eacute](e) (Form I-129F). For filing a 
petition to classify a nonimmigrant as a fianc[eacute]e or 
fianc[eacute] under section 214(d) of the Act: $340; there is no fee 
for a K-3 spouse as designated in 8 CFR 214.1(a)(2) who is the 
beneficiary of an immigrant petition filed by a United States citizen 
on a Petition for Alien Relative (Form I-130).
    (L) Petition for Alien Relative (Form I-130). For filing a petition 
to classify status of an alien relative for issuance of an immigrant 
visa under section 204(a) of the Act: $420.
    (M) Application for Travel Document (Form I-131). For filing an 
application for travel document: $360. There is no fee for filing for a 
Refugee Travel Document or advance parole if filed in conjunction with 
a pending or concurrently filed Form I-485 with fee that was filed on 
or after July 30, 2007.
    (N) Immigrant Petition for Alien Worker (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: $580.
    (O) Application for Advance Permission to Return to Unrelinquished 
Domicile (Form I-191). For filing an application for discretionary 
relief under section 212(c) of the Act: $585.
    (P) Application for Advance Permission to Enter as a Nonimmigrant 
(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: $585.
    (Q) Application for Waiver for Passport and/or Visa (Form I-193). 
For filing an application for waiver of passport and/or visa: $585.
    (R) Application for Permission to Reapply for Admission into the 
United States After Deportation or Removal (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: $585.
    (S) Notice of Appeal or Motion (Form I-290B). For appealing a 
decision under the immigration laws in any type of proceeding over 
which the Board of Immigration Appeals does not have appellate 
jurisdiction: $630. The fee will be the same for appeal of a denial of 
a benefit request with one or multiple beneficiaries.
    (T) Petition for Amerasian, Widow(er), or Special Immigrant (Form 
I-360). For filing a petition for an Amerasian, Widow(er), or Special 
Immigrant: $405. The following requests are exempt from this fee:
    (1) A petition seeking classification as an Amerasian;
    (2) A self-petitioning battered or abused spouse, parent, or child 
of a United States citizen or lawful permanent resident; or
    (3) A Special Immigrant Juvenile.
    (4) An Iraqi national who worked for or on behalf of the U.S. 
Government in Iraq.
    (U) Application to Register Permanent Residence or Adjust Status 
(Form I-485). For filing an application for permanent resident status 
or creation of a record of lawful permanent residence:
    (1) $985 for an applicant 14 years of age or older; or
    (2) $635 for an applicant under the age of 14 years when it is:
    (i) Submitted concurrently for adjudication with the Form I-485 of 
a parent;
    (ii) The applicant is seeking to adjust status as a derivative of 
his or her parent; and
    (iii) The child's application is based on them being a close 
relative of the same individual who is the basis for the child's 
parent's adjustment of status..
    (3) There is no fee if an applicant is filing as a refugee under 
section 209(a) of the Act.
    (V) Application To Adjust Status under Section 245(i) of the Act 
(Supplement A to Form I-485). Supplement to Form I-485 for persons 
seeking to adjust status under the provisions of section 245(i) of the 
Act: $1,000. There is no fee when the applicant is an unmarried child 
less than 17 years of age, or when the applicant is the spouse, or the 
unmarried child less than 21 years of age of a legalized alien and who 
is qualified for and has applied for voluntary departure under the 
family unity program.
    (W) Immigrant Petition by Alien Entrepreneur (Form I-526). For 
filing a petition for an alien entrepreneur: $1,500.
    (X) Application To Extend/Change Nonimmigrant Status (Form I-539). 
For filing an application to extend or change nonimmigrant status: 
$290.
    (Y) Petition To Classify Orphan as an Immediate Relative (Form I-
600). For filing a petition to classify an orphan as an immediate 
relative for issuance of an immigrant visa under section 204(a) of the 
Act. Only one fee is required when more than one petition is submitted 
by the same petitioner on behalf of orphans who are brothers or 
sisters: $720.
    (Z) Application for Advance Processing of Orphan Petition (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.): $720. No fee is charged if Form I-600 has not 
yet been submitted in connection with an approved Form I-600A subject 
to the following conditions:
    (1) The applicant requests an extension of the approval in writing 
and the request is received by USCIS prior to the expiration date of 
approval.
    (2) The applicant's home study is updated and USCIS determines that 
proper care will be provided to an adopted orphan.
    (3) A no fee extension is limited to one occasion. If the Form I-
600A approval extension expires prior to submission of an associated 
Form I-600, then a complete application and fee must be submitted for 
any subsequent application.
    (AA) Application for Waiver of Ground of Inadmissibility (Form I-
601). For filing an application for waiver of grounds of 
inadmissibility: $585.
    (BB) Application for Waiver of the Foreign Residence Requirement 
(Under Section 212(e) of the Immigration and Nationality Act, as 
Amended) (Form I-612). For filing an application for waiver of the 
foreign-residence requirement under section 212(e) of the Act: $585.
    (CC) Application for Status as a Temporary Resident Under Section 
245A of the Immigration and Nationality Act (Form I-687). For filing an 
application for status as a temporary resident under section 245A(a) of 
the Act: $1,130.
    (DD) Application for Waiver of Grounds of Inadmissibility Under 
Sections 245A or 210 of the Immigration and Nationality Act (Form I-
690). For filing an application for waiver of a ground of 
inadmissibility under section 212(a) of the Act as amended, in 
conjunction with the application under sections 210 or 245A of the Act, 
or a petition under section 210A of the Act: $200.
    (EE) Notice of Appeal of Decision Under Sections 245A or 210 of the 
Immigration and Nationality Act (or a Petition Under Section 210A of 
the Act) (Form I-694). For appealing the denial of an application under 
sections 210 or 245A of the Act, or a petition under section 210A of 
the Act: $755.
    (FF) Petition To Remove the Conditions of Residence Based on 
Marriage (Form I-751). For filing a petition to remove the conditions 
on residence based on marriage: $505.

[[Page 33486]]

    (GG) Application for Employment Authorization (Form I-765). $380; 
no fee if filed in conjunction with a pending or concurrently filed 
Form I-485 with fee that was filed on or after July 30, 2007.
    (HH) Petition To Classify Convention Adoptee as an Immediate 
Relative (Form I-800).
    (1) There is no fee for the first Form I-800 filed for a child on 
the basis of an approved Application for Determination of Suitability 
To Adopt a Child from a Convention Country (Form I-800A) during the 
approval period.
    (2) If more than one Form I-800 is filed during the approval period 
for different children, the fee is $720 for the second and each 
subsequent petition submitted.
    (3) If the children are already siblings before the proposed 
adoption, however, only one filing fee of $720 is required, regardless 
of the sequence of submission of the immigration benefit.
    (II) Application for Determination of Suitability To Adopt a Child 
From a Convention Country (Form I-800A). For filing an application for 
determination of suitability to adopt a child from a Convention 
country: $720.
    (JJ) Request for Action on Approved Application for Determination 
of Suitability To Adopt a Child From a Convention Country (Form I-800A, 
Supplement 3). This filing fee is not charged if Form I-800 has not 
been filed based on the approval of the Form I-800A, and Form I-800A 
Supplement 3 is filed in order to obtain a first extension of the 
approval of the Form I-800A: $360.
    (KK) Application for Family Unity Benefits (Form I-817). For filing 
an application for voluntary departure under the Family Unity Program: 
$435.
    (LL) Application for Temporary Protected Status (Form I-821). For 
first time applicants: $50. There is no fee for re-registration.
    (MM) Application for Action on an Approved Application or Petition 
(Form I-824). For filing for action on an approved application or 
petition: $405.
    (NN) Petition by Entrepreneur To Remove Conditions (Form I-829). 
For filing a petition by entrepreneur to remove conditions: $3,750.
    (OO) Application for suspension of deportation or special rule 
cancellation of removal (pursuant to section 203 of Pub. L. 105-100) 
(Form I-881):
    (1) $285 for adjudication by the Department of Homeland Security, 
except that the maximum amount payable by family members (related as 
husband, wife, unmarried child under 21, unmarried son, or unmarried 
daughter) who submit applications at the same time shall be $570.
    (2) $165 for adjudication by the Immigration Court (a single fee of 
$165 will be charged whenever applications are filed by two or more 
aliens in the same proceedings). (3) The $165 fee is not required if 
the Form I-881 is referred to the Immigration Court by the Department 
of Homeland Security.
    (PP) Application for authorization to issue certification for 
health care workers (Form I-905): $230.
    (QQ) Request for Premium Processing Service (Form I-907). The fee 
must be paid in addition to, and in a separate remittance from, other 
filing fees. The request for premium processing fee will be adjusted 
annually by notice in the Federal Register based on inflation according 
to the Consumer Price Index (CPI). The fee to request premium 
processing: $1,225. The fee for Premium Processing Service may not be 
waived.
    (RR) Civil Surgeon Designation. For filing an application for civil 
surgeon designation: $615.
    (SS) Application for Regional Center under the Immigrant Investor 
Pilot Program (Form I-924). For filing an application for regional 
center under the Immigrant Investor Pilot Program: $6,230.
    (TT) Petition for Qualifying Family Member of a U-1 Nonimmigrant 
(Form I-929). For U-1 principal applicant to submit for each qualifying 
family member who plans to seek an immigrant visa or adjustment of U 
status: $215.
    (UU) Application to File Declaration of Intention (Form N-300). For 
filing an application for declaration of intention to become a U.S. 
citizen: $250.
    (VV) Request for a Hearing on a Decision in Naturalization 
Proceedings (Under Section 336 of the Act) (Form N-336). For filing a 
request for hearing on a decision in naturalization proceedings under 
section 336 of the Act: $650.
    (WW) Application for Naturalization (Form N-400). For filing an 
application for naturalization (other than such application filed on or 
after October 1, 2004, by an applicant who meets the requirements of 
sections 328 or 329 of the Act with respect to military service, for 
which no fee is charged): $595.
    (XX) Application to Preserve Residence for Naturalization Purposes 
(Form N-470). For filing an application for benefits under section 
316(b) or 317 of the Act: $330.
    (YY) Application for Replacement Naturalization/Citizenship 
Document (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: $345.
    (ZZ) Application for Certificate of Citizenship (Form N-600). For 
filing an application for a certificate of citizenship under section 
309(c) or section 341 of the Act for applications filed on behalf of a 
biological child: $600. For applications filed on behalf of an adopted 
child: $550.
    (AAA) Application for Citizenship and Issuance of Certificate under 
Section 322 (Form N-600K). For filing an application for citizenship 
and issuance of certificate under section 322 of the Act: $600, for an 
application filed on behalf of a biological child and $550 for an 
application filed on behalf of an adopted child.
    (ii) Other DHS immigration fees. The following fees are applicable 
to one or more of the immigration components of DHS:
    (A) DCL System Costs Fee. For use of a Dedicated Commuter Lane 
(DCL) located at specific Ports of Entry of the United States by an 
approved participant in a designated vehicle: $80.00, with the maximum 
amount of $160.00 payable by a family (husband, wife, and minor 
children under 18 years-of-age). Payable following approval of the 
application but before use of the DCL by each participant. This fee is 
non-refundable, but may be waived by the district director. If a 
participant wishes to enroll more than one vehicle for use in the 
PORTPASS system, he or she will be assessed with an additional fee of: 
$42 for each additional vehicle enrolled.
    (B) Form I-17. For filing a petition for school certification: 
$1,700, plus a site visit fee of $655 for each location listed on the 
form.
    (C) Form I-68. For application for issuance of the Canadian Border 
Boat Landing Permit under section 235 of the Act: $16.00. The maximum 
amount payable by a family (husband, wife, unmarried children under 21 
years of age, parents of either husband or wife) shall be $32.00.
    (D) Form I-94. For issuance of Arrival/Departure Record at a land 
border Port-of-Entry: $6.00.
    (E) Form I-94W. For issuance of Nonimmigrant Visa Waiver Arrival/
Departure Form at a land border Port-of-Entry under section 217 of the 
Act: $6.00.
    (F) Form I-246. For filing application for stay of deportation 
under part 243 of this chapter: $155.00.

[[Page 33487]]

    (G) Form I-570. For filing application for issuance or extension of 
refugee travel document: $45.00
    (H) Form I-823. For application to a PORTPASS program under section 
286 of the Act--$25.00, with the maximum amount of $50.00 payable by a 
family (husband, wife, and minor children under 18 years of age). The 
application fee may be waived by the district director. If fingerprints 
are required, the inspector will inform the applicant of the current 
Federal Bureau of Investigation fee for conducting fingerprint checks 
prior to accepting the application fee. Both the application fee (if 
not waived) and the fingerprint fee must be paid to CBP before the 
application will be processed. The fingerprint fee may not be waived. 
For replacement of PORTPASS documentation during the participation 
period: $25.00.
    (I) Form I-901. For remittance of the I-901 SEVIS fee for F and M 
students: $200. For remittance of the I-901 SEVIS fee for certain J 
exchange visitors: $180. For remittance of the I-901 SEVIS fee for J-1 
au pairs, camp counselors, and participants in a summer work/travel 
program: $35. There is no I-901 SEVIS fee remittance obligation for J 
exchange visitors in Federally-funded programs with a program 
identifier designation prefix that begins with G-1, G-2, G-3 or G-7.
    (J) Special statistical tabulations--a charge will be made to cover 
the cost of the work involved: DHS Cost.
    (K) Set of monthly, semiannual, or annual tables entitled 
``Passenger Travel Reports via Sea and Air'': $7.00. Available from 
DHS, then Immigration & Naturalization Service, for years 1975 and 
before. Later editions are available from the United States Department 
of Transportation, contact: United States Department of Transportation, 
Transportation Systems Center, Kendall Square, Cambridge, MA 02142.
    (L) Classification of a citizen of Canada to be engaged in business 
activities at a professional level pursuant to section 214(e) of the 
Act (Chapter 16 of the North American Free Trade Agreement): $50.00.
    (M) Request for authorization for parole of an alien into the 
United States: $65.00.
    (iii) Fees for copies of records. Fees for production or disclosure 
of records under 5 U.S.C. 552 shall be charged in accordance with the 
regulations of the Department of Homeland Security at 6 CFR 5.11.
    (iv) Adjustment to fees. The fees prescribed in paragraph (b)(1)(i) 
of this section may be adjusted annually by publication of an inflation 
adjustment. The inflation adjustment will be announced by a publication 
of a notice in the Federal Register. The adjustment shall be a 
composite of the Federal civilian pay raise assumption and non-pay 
inflation factor for that fiscal year issued by the Office of 
Management and Budget for agency use in implementing OMB Circular A-76, 
weighted by pay and non-pay proportions of total funding for that 
fiscal year. If Congress enacts a different Federal civilian pay raise 
percentage than the percentage issued by OMB for Circular A-76, the 
Department of Homeland Security may adjust the fees, during the current 
year or a following year to reflect the enacted level. The prescribed 
fee or charge shall be the amount prescribed in paragraph (b)(1)(i) of 
this section, plus the latest inflation adjustment, rounded to the 
nearest $5 increment.
    (v) Fees for immigration court and Board of Immigration Appeals. 
Fees for proceedings before immigration judges and the Board of 
Immigration Appeals are provided in 8 CFR 1103.7.
    (c) Waiver of fees. (1) Eligibility for a fee waiver. Discretionary 
waiver of the fees provided in paragraph (b)(1)(i) of this section are 
limited as follows:
    (i) The party requesting the benefit is unable to pay the 
prescribed fee.
    (ii) A waiver based on inability to pay is consistent with the 
status or benefit being sought including requests that require 
demonstration of the applicant's ability to support himself or herself, 
or individuals who seek immigration status based on a substantial 
financial investment.
    (2) Requesting a fee waiver. To request a fee waiver, a person 
requesting an immigration benefit must submit a written request for 
permission to have their request processed without payment of a fee 
with their benefit request. The request must state the person's belief 
that he or she is entitled to or deserving of the benefit requested, 
the reasons for his or her inability to pay, and evidence to support 
the reasons indicated. There is no appeal of the denial of a fee waiver 
request.
    (3) USCIS fees that may be waived. No fee relating to any 
application, petition, appeal, motion, or request made to U.S. 
Citizenship and Immigration Services may be waived except for the 
following:
    (i) Biometric Fee,
    (ii) Application to Replace Permanent Resident Card;
    (iii) Petition for a CNMI-Only Nonimmigrant Transitional Worker,
    (iv) Application for Advance Permission to Return to Unrelinquished 
Domicile,
    (v) Notice of Appeal or Motion,
    (vi) Application for Employment Authorization,
    (vii) Application for Family Unity Benefits
    (viii) Application for Temporary Protected Status,
    (ix) Application to File Declaration of Intention, Request for a 
Hearing on a Decision in Naturalization Proceedings (Under Section 336 
of the INA),
    (x) Application for Naturalization,
    (xi) Application to Preserve Residence for Naturalization Purposes.
    (xii) Application for Replacement Naturalization/Citizenship 
Document,
    (xiii) Application for Certificate of Citizenship, and
    (xiv) Application for Citizenship and Issuance of Certificate under 
Section 322.
    (4) The following fees may be waived only in the case of an alien 
in lawful nonimmigrant status under sections 101(a)(15)(T) or (U) of 
the Act; an applicant under section 209(b) of the Act; an approved VAWA 
self-petitioner; or an alien to whom section 212(a)(4) of the Act does 
not apply with respect to adjustment of status:
    (i) Application for Advance Permission to Enter as Nonimmigrant;
    (ii) Application for Waiver for Passport and/or Visa;
    (iii) Application to Register Permanent Residence or Adjust Status;
    (iv) Application for Waiver of Grounds of Inadmissibility.
    (5) Immigration Court fees. The provisions relating to the 
authority of the immigration judges or the Board to waive fees 
prescribed in paragraph (b) of this section in cases under their 
jurisdiction can be found at 8 CFR 1003.8 and 1003.24.
    (6) Fees under the Freedom of Information Act (FOIA). FOIA fees may 
be waived or reduced if DHS determines that such action would be in the 
public interest because furnishing the information can be considered as 
primarily benefiting the general public.
    (d) Exceptions and exemptions. The Director of USCIS may approve 
and suspend exemptions from any fee required by paragraph (b)(1)(i) of 
this section or provide that the fee may be waived for a case or 
specific class of cases that is not otherwise provided in this section, 
if the Director determines that such action would be in the public 
interest, and the action is consistent with other applicable law. This 
discretionary authority will not be delegated to any official other 
than the USCIS Deputy Director.
    (e) Premium processing service. A person submitting a request to 
USCIS may request 15 calendar day processing of certain employment-
based immigration benefit requests.

[[Page 33488]]

    (1) Submitting a request for premium processing. A request for 
premium processing must be submitted on the form prescribed by USCIS, 
including the required fee, and submitted to the address specified on 
the form instructions.
    (2) 15-day limitation. The 15 calendar day processing period begins 
when USCIS receives the request for premium processing accompanied by 
an eligible employment-based immigration benefit request.
    (i) If USCIS cannot reach a final decision on a request for which 
premium processing was requested, as evidenced by an approval notice, 
denial notice, a notice of intent to deny, or a request for evidence, 
USCIS will refund the premium processing service fee, but continue to 
process the case.
    (ii) USCIS may retain the premium processing fee and not reach a 
conclusion on the request within 15 days, and not notify the person who 
filed the request, if USCIS opens an investigation for fraud or 
misrepresentation relating to the benefit request.
    (3) Requests eligible for premium processing.
    (i) USCIS will designate the categories of employment-related 
benefit requests that are eligible for premium processing.
    (ii) USCIS will announce by its official Internet Web site, 
currently http://www.uscis.gov, those requests for which premium 
processing may be requested, the dates upon which such availability 
commences and ends, and any conditions that may apply.
    (f) Authority to certify records. The Director of USCIS or such 
officials as he or she may designate, may certify records when 
authorized under 5 U.S.C. 552 or any other law to provide such records.

PART 204--IMMIGRANT PETITIONS

    4. The authority citation for part 204 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1184, 
1186a, 1255, 1641; 8 CFR part 2.

    5. Section 204.6 is amended by revising paragraph (m)(6) to read as 
follows:


Sec.  204.6  Petitions for employment creation aliens.

* * * * *
    (m) * * *
    (6) Termination of participation of regional centers. To ensure 
that regional centers continue to meet the requirements of section 
610(a) of the Appropriations Act, a regional center must provide USCIS 
with updated information to demonstrate the regional center is 
continuing to promote economic growth, improved regional productivity, 
job creation, or increased domestic capital investment in the approved 
geographic area. Such information must be submitted to USCIS on an 
annual basis, on a cumulative basis, and/or as otherwise requested by 
USCIS, using a form designated for this purpose. USCIS will issue a 
notice of intent to terminate the participation of a regional center in 
the pilot program if a regional center fails to submit the required 
information or upon a determination that the regional center no longer 
serves the purpose of promoting economic growth, including increased 
export sales, improved regional productivity, job creation, and 
increased domestic capital investment. The notice of intent to 
terminate shall be made upon notice to the regional center and shall 
set forth the reasons for termination. The regional center must be 
provided thirty days from receipt of the notice of intent to terminate 
to offer evidence in opposition to the ground or grounds alleged in the 
notice of intent to terminate. If USCIS determines that the regional 
center's participation in the Pilot Program should be terminated, USCIS 
shall notify the regional center of the decision and of the reasons for 
termination. The regional center may appeal the decision within thirty 
days after the service of notice to the USCIS as provided in 8 CFR 
103.3.
* * * * *

PART 244--TEMPORARY PROTECTED STATUS FOR NATIONALS OF DESIGNATED 
STATES

    4. The authority citation for part 244 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1254, 1254a note, 8 CFR part 2.


Sec.  244.20  [Removed]

    5. Section 244.20 is removed.

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

    6. The authority citation for part 274a continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1324a; Title VII of Public Law 
110-229; 8 CFR part 2.
    7. Section 274a.12 is amended by revising paragraphs (a)(8) and 
(a)(11) to read as follows:


Sec.  274a.12  Classes of aliens authorized to accept employment.

    (a) * * *
    (8) An alien admitted to the United States as a nonimmigrant 
pursuant to the Compact of Free Association between the United States 
and of the Federated States of Micronesia, the Republic of the Marshall 
Islands, or the Republic of Palau;
* * * * *
    (11) An alien whose enforced departure from the United States has 
been deferred in accordance with a directive from the President of the 
United States to the Secretary. Employment is authorized for the period 
of time and under the conditions established by the Secretary pursuant 
to the Presidential directive;
* * * * *

Janet Napolitano,
Secretary.
[FR Doc. 2010-13991 Filed 6-9-10; 8:45 am]
BILLING CODE 9111-97-P