Federal Register, Volume 75 Issue 185 (Friday, September 24, 2010)

[Federal Register Volume 75, Number 185 (Friday, September 24, 2010)]
[Rules and Regulations]
[Pages 58962-58991]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-23725]

[[Page 58961]]

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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; Final Rule

Federal Register / Vol. 75 , No. 185 / Friday, September 24, 2010 /
Rules and Regulations

[[Page 58962]]

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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: Final rule.

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SUMMARY: The Department of Homeland Security (DHS) is adjusting the fee
schedule for U.S. Citizenship and Immigration Services (USCIS). USCIS
conducted a comprehensive fee study, refined its cost accounting
process, and determined that current fees do not recover the full costs
of services provided. DHS has found that adjustment to the fee schedule
is necessary to fully recover costs and maintain adequate service. In
response to comments, several adjustments were made to the proposed
rule published on June 11, 2010.
In this final rule, DHS: increases the fees by a weighted average
of 10 percent; establishes three new fees covering USCIS costs related
to processing the Regional Center Designation under the Immigrant
Investor Pilot Program, Civil Surgeon Designation, and DHS Processing
of Immigrant Visa requests; and adjusts the premium processing service
fee by the percentage increase in inflation according to the Consumer
Price Index--Urban Consumers (CPI-U) published as of July 2010. This
rule also finalizes the interim rule that established the premium
processing service and fees.

DATES: This rule is effective November 23, 2010. Applications or
petitions mailed, postmarked, or otherwise filed on or after November
23, 2010 must include the new fee.

FOR FURTHER INFORMATION CONTACT: Timothy Rosado, Acting Chief Financial
Officer, 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. Background.
II. Final Rule.
A. Changes in the Final Rule.
B. Corrections.
C. Summary of Final Fees.
III. Public Comments on the Proposed Rule.
A. Authority to Promulgate Fees.
1. Immigration and Nationality Act Section 286(m).
2. Biometrics for Temporary Protected Status.
3. Bundling.
4. Fraud Detection and National Security and other Program
Costs.
5. Guidance under Office of Management and Budget Circulars.
6. Accounting Standards.
B. Relative Amount of Fees.
1. Recovery of Additional Costs.
2. Proposed Fees are Unreasonably High.
a. Barrier to Family Reunification.
b. Fee Increases Reduce the Number of Filers.
c. Income-Based Fee Structure.
d. Supplementary Costs to Applicants and Petitioners.
3. Comments on Specific Fees and Adjustments.
a. Student Employment Authorization.
b. Entertainers, Athletes, and other Individuals with
Extraordinary Talent.
c. Adoption.
d. Entrepreneurs.
e. Refugee Travel Documents.
4. Fee Decreases.
C. Fee Waivers and Exemptions.
1. Asylee Benefits and Status Adjustment.
2. Expansion of Fee Waivers and Exemptions.
a. Travel and Employment Authorization Documents and Immigrant
Visas.
b. Waiver Eligibility for Notices of Appeal or Motions.
c. Military Naturalizations.
d. Arrival-Departure Records.
3. Standardization of the Fee Waiver Process.
4. Commonwealth of the Northern Mariana Islands Transitional
Worker.
D. Naturalization.
E. Improve Service and Reduce Inefficiencies.
1. Service Improvement and Fees.
2. Multiple Biometric Data Requests.
3. Transformation.
4. Increases Relative to Time.
5. Fee Refunds.
6. Customer Service and the Office of Public Engagement.
F. Premium Processing.
1. Expansion of Premium Processing Service.
2. Adjustment to the Premium Processing Fee.
G. New Fees and Forms.
1. Immigrant Visa DHS Domestic Processing Fee.
2. Civil Surgeon Designation Fee and Form.
3. EB-5 Regional Center Designation Fee and Form.
H. Methods Used To Determine Fee Amounts.
1. Reductions to USCIS Costs.
2. Appropriations.
I. Other Comments.
1. Visa Allocation and Unused Visa Numbers.
2. Increased Periods of Validity for Travel and Employment
Documents.
3. Suggested I-94 Fee.
J. Discussion of Comments Received in Response to the June 1,
2001, Interim
Final Rule.
IV. Statutory and Regulatory Reviews.
A. Regulatory Flexibility Act- Final Regulatory Flexibility
Analysis.
1. Objectives of, and Legal Basis for, the Final Rule.
2. Significant Issues Raised by Public Comments in Response to
the Initial Regulatory Flexibility Analysis.
3. Description and Estimate of the Number of Small Entities to
which the Rule will Apply.
4. Reporting, Recordkeeping, and Other Compliance Requirements.
5. Steps Taken to Minimize Significant Adverse Economic Impacts
on Small Entities.
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.
CBP--U.S. Customs and Border Protection.
CFO--Chief Financial Officer.
CNMI--Commonwealth of the Northern Mariana Islands.
CNRA--Consolidated Natural Resources Act.
CPI-U--Consumer Price Index--Urban Consumers.
DHS--Department of Homeland Security.
DOS--Department of State.
EAD--Employment Authorization Document.
FASAB--Federal Accounting Standards Advisory Board.
FBI--Federal Bureau of Investigation.
FDNS--Fraud Detection and National Security.
FRFA--Final Regulatory Flexibility Analysis.
FY--Fiscal Year.
HSA--Homeland Security Act.
IEFA--Immigration Examinations Fee Account.
INA--Immigration and Nationality Act.
IOAA--Independent Offices Appropriation Act.
IRFA--Initial Regulatory Flexibility Analysis.
NNCP--National Name Check Program.
OMB--Office of Management and Budget.
OPE--Office of Public Engagement.
OPT--Optional Practical Training.
PRA--Paperwork Reduction Act.
POE--Port of Entry.
RFA--Regulatory Flexibility Act.
RFE--Request for Evidence.
SAVE--Systematic Alien Verification for Entitlements.
SMI--Secure Mail Initiative.
SQA--System Qualified Adjudication.
TPS--Temporary Protected Status.
UMRA--Unfunded Mandates Reform Act.
USCIS--U.S. Citizenship and Immigration Services.
USPS--United States Postal Service.
VAWA--Violence Against Women Act.

I. Background

DHS proposed to adjust the USCIS benefits fee schedule on June 11,
2010. See 75 FR 33445. The current USCIS fee schedule does not recoup
the full cost of processing immigration benefits. This

[[Page 58963]]

final rule builds on the 2008/2009 USCIS fee rule that sought to align
fees with the costs of specific application types and make adjustments
to some fees based on policy considerations.
This final rule also reflects FY 2010 appropriations to remove
asylum, refugee, and military naturalization costs from the fee
structure. See 75 FR 33445, 33447. Previously, surcharges were added to
immigration fees to recover the cost of adjudicating asylum, refugee,
and military naturalization requests. Costs for the Systematic Alien
Verification for Entitlements (SAVE) program and the Office of
Citizenship were also supported by fee revenue. The Administration's
fee reform policy, as reflected in the Administration's budget request,
moves all of these costs out of the USCIS fee structure to appropriated
funds and improves the transparency of USCIS fees.
USCIS entered supporting documentation for this rulemaking and its
methodology, including budget methodology and regulatory flexibility
analyses, into the public docket. See http://www.regulations.gov,
docket number USCIS-2009-0033.

II. Final Rule

A. Changes in the Final Rule

DHS is adopting the proposed rule with changes, both in response to
comments and as a result of new information. The explanations of the
changes are discussed in the sections dealing with comments and the
subject matter of the change. No modification to the final fees is made
as a result of these changes. The changes that DHS is making to the
final rule are summarized as follows:
Clarify fee exemptions for requests for Civil Surgeon Designation.
DHS will charge no fee for an application from a medical officer in the
U.S. Armed Forces or civilian physician employed by the U.S. government
who examines members of the U.S. Armed Forces, veterans of the Armed
Forces, and their dependents at a U.S. military, Department of Veterans
Affairs, or U.S. government facility in the United States. New 8 CFR
103.7(b)(1)(i)(SS).
Reduce the fee for an Application for Travel Document, Form I-131,
when it is filed to request a Refugee Travel Document. DHS has reduced
the fee for an Application for Travel Document in the final rule to
$135 for a Refugee Travel Document for an adult age 16 or older, and
$105 for a child under the age of 16. DHS has decided also to permit
the fee for an Application for Travel Document to be waived based on
inability to pay when it is based on a request for Humanitarian Parole.
New 8 CFR 103.7(b)(1)(i)(M).
Provide that the fee for the Notice of Appeal or Motion, Form I-
290B, may be waived in certain cases. DHS will allow the fee for the
Notice of Appeal or Motion to be waived upon a showing of inability to
pay in those cases when the appeal or motion is from the denial of an
immigration benefit request where the applicant or petitioner was not
required to pay a fee or that fee was waived. New 8 CFR
103.7(c)(3)(vi).
Provide for no fee for a Notice of Appeal or Motion for an appeal
of a denial of a petition for a special immigrant visa from an Iraqi or
Afghan national who worked for or on behalf of the U.S. Government in
Iraq or Afghanistan. DHS believes it is keeping with the policy to
assist this group of petitioners by allowing them to file a Notice of
Appeal or Motion without a fee. New 8 CFR 103.7(b)(1)(i)(W).
Provide for a free Request for Hearing on a Decision in
Naturalization Proceedings, Form N-336, and an Application for
Certification of Citizenship, Form N-600, to exempt from fees requests
from a member or veteran of the U.S. Armed Forces. New 8 CFR
103.7(b)(1)(i)(W), (AAA). USCIS is precluded by law from collecting a
fee from members of the military for an Application for Naturalization
under sections 328 and 329 of the Immigration and Nationality Act
(INA). INA sections 328(b) & 329(b), 8 U.S.C. 1439(b) & 1440(b). DHS
has decided to provide that military members are also exempt from the
fee for these requests.

B. Corrections

DHS makes a number of technical corrections in this final rule. DHS
does not make any changes to the final fees as a result of these
corrections. In the preamble of the proposed rule, DHS included a table
of those benefits requests that also required submission of biometrics
and the related biometrics services fee. 75 FR 33445, 33461. USCIS
failed to include the Application to Extend/Change Nonimmigrant Status,
Form I-539, in the table of fees for immigration benefits that require
biometric services in the proposed rule. Id. Applicants filing an
Application to Extend/Change Nonimmigrant Status to request ``V''
nonimmigrant status are required to submit biometric information and
pay the biometric fee. 8 CFR 214.15(f)(1)((ii). A ``V'' visa is
available for certain spouses and children of lawful permanent
residents who have had a petition for an immigrant visa or application
for naturalization pending for 3 years or more. INA section
101(a)(15(V), 8 U.S.C. 1101(a)(15)(V). This is the only class of
Application to Extend/Change Nonimmigrant Status (Form I-539)
applicants that currently require biometric services. The fee for this
application in this final rule is $290. New 8 CFR 103.7(b)(1(i)(X). The
biometric fee is $85. New 8 CFR 103.7(b)(1)(i)(C). As a result, the
inclusive fee for filing an Application to Extend/Change Nonimmigrant
Status (Form I-539) for V nonimmigrants is $375. USCIS also
inadvertently did not include the Application for Suspension of
Deportation or Special Rule Cancellation of Removal (Pursuant to
Section 203 of Public Law 105-110), Form I-881, in the table of fees in
the preamble to the proposed rule. This benefit request and its $285
fee are included in the table in this preamble for illustrative
purposes. Finally, USCIS is removing the separate fee for filing an
application for issuance or extension of a refugee travel document
(Form I-570) because the refugee document process was consolidated into
the application for travel documents (Form I-131), and the reference is
obsolete.
The William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008 requires DHS to permit aliens to apply for
a waiver of any fees associated with filing an application for relief
through final adjudication of the adjustment of status for relief by a
Violence Against Women Act (VAWA) self-petitioner or under INA sections
101(a)(15)(T) (T visas), 101(a)(15)(U) (U visas), 106 (battered spouses
of A, G, E-3, or H nonimmigrants), 240A(b)(2) (battered spouse or child
of a lawful permanent resident or U.S. citizen), and 244(a)(3)
(Temporary Protected Status) (as in effect on March 31, 1997). INA
section 245(l)(7), 8 U.S.C. 1255(l)(7). Public Law 110-457, section 122
Stat. 5044 (Dec. 23, 2008); 22 U.S.C. 7101 et seq. This rule corrects
the oversight from the proposed rule and provides that these groups or
individuals may request a waiver of any USCIS fee to which they may be
otherwise subjected. New 8 CFR 103.7(c)(3)(xvii).
USCIS inadvertently did not include the Petition to Remove the
Conditions of Residence, Form I-751, and the Application for Suspension
of Deportation or Special Rule Cancellation of Removal (Pursuant to
Section 203 of Pub. L. 105-110), Form I-881, in the list of forms
currently eligible for fee waivers. Proposed 8 CFR 103.7(c)(3); 75 FR
33445, 33487. These exclusions are corrected in this final rule. USCIS
has determined that it will continue its policy of accepting fee waiver
requests for Forms I-751 and I-

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881. New 8 CFR 103.7(c)(3)(vii) and (xi); 8 CFR 240.63(a).
In the proposed rule, USCIS unintentionally replaced the word
``or'' in the fee for an Application to Register Permanent Residence or
Adjust Status, Form I-485, with ``and'' in an attempt to simplify the
language in current 8 CFR 103.7(b)(1). Proposed 8 CFR
103.7(b)(1)(U)(2). A discounted fee has previously been provided for
``an applicant under the age of fourteen years when submitted
concurrently for adjudication with the Form I-485 of a parent and the
applicant is seeking to adjust status as a derivative of the parent,
based on a relationship to the same individual who provides the basis
for the parent's adjustment of status, or under the same legal
authority as the parent.'' 8 CFR 103.7(b)(1). This proposed change
would have eliminated the discount made available to certain children
in the 2008/2009 fee rule. USCIS will continue to allow a child filing
concurrently with a parent to pay the reduced fee when the child ``is
seeking to adjust status as a derivative of the parent, based on a
relationship to the same individual who provides the basis for the
parent's adjustment of status, or under the same legal authority as the
parent'' and has restored that language to the regulatory text in this
final rule. New 8 CFR 103.7(b)(1)(U)(2)

C. Summary of Final Fees

The current USCIS Immigration Benefit Request Fee Schedule and the
fees adopted in this final rule are summarized in Table 1. DHS bases
its final fees on the FY 2011 President's Budget Request as outlined in
the proposed rule, incorporating appropriated funding for refugee,
asylum, and military naturalization processing, as well as the Office
of Citizenship and the SAVE program. 75 FR 33456.

Table 1--Immigration Benefit Request Fees
------------------------------------------------------------------------
Current
Form No. Title fees Final fees
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I-90.................. Application to Replace $290 $365
Permanent Resident
Card.
I-102................. Application for 320 330
Replacement/Initial
Nonimmigrant Arrival-
Departure Document.
I-129/129CW........... Petition for a 320 325
Nonimmigrant Worker.
I-129F................ Petition for Alien 455 340
Fianc[eacute](e).
I-130................. Petition for Alien 355 420
Relative.
I-131................. Application for Travel 305 360
Document.
I-140................. Immigrant Petition for 475 580
Alien Worker.
I-191................. Application for 545 585
Advance Permission to
Return to
Unrelinquished
Domicile.
I-192................. Application for 545 585
Advance Permission to
Enter as Nonimmigrant.
I-193................. Application for Waiver 545 585
of Passport and/or
Visa.
I-212................. Application for 545 585
Permission to Reapply
for Admission into
the U.S. after
Deportation or
Removal.
I-290B................ Notice of Appeal or 585 630
Motion.
I-360................. Petition for 375 405
Amerasian, Widow(er),
or Special Immigrant.
I-485................. Application to 930 985
Register Permanent
Residence or Adjust
Status.
I-526................. Immigrant Petition by 1,435 1,500
Alien Entrepreneur.
I-539................. Application to Extend/ 300 290
Change Nonimmigrant
Status.
I-600/600A............ Petition to Classify 670 720
I-800/800A............ Orphan as an
Immediate Relative/
Application for
Advance Processing of
Orphan Petition.
I-601................. Application for Waiver 545 585
of Ground of
Excludability.
I-612................. Application for Waiver 545 585
of the Foreign
Residence Requirement.
I-687................. Application for Status 710 1,130
as a Temporary
Resident under
Sections 245A or 210
of the Immigration
and Nationality Act.
I-690................. Application for Waiver 185 200
of Grounds of
Inadmissibility.
I-694................. Notice of Appeal of 545 755
Decision under
Sections 245A or 210
of the Immigration
and Nationality Act.
I-698................. Application to Adjust 1,370 1,020
Status from Temporary
to Permanent Resident
(Under Section 245A
of Pub. L. 99-603).
I-751................. Petition to Remove the 465 505
Conditions of
Residence.
I-765................. Application for 340 380
Employment
Authorization.
I-817................. Application for Family 440 435
Unity Benefits.
I-824................. Application for Action 340 405
on an Approved
Application or
Petition.
I-829................. Petition by 2,850 3,750
Entrepreneur to
Remove Conditions.
I-881................. Application for 285 285
Suspension of
Deportation or
Special Rule
Cancellation of
Removal (Pursuant to
Section 203 of Pub.
L. 105-110).
I-907................. Request for Premium 1,000 1,225
Processing Service.
Civil Surgeon 0 615
Designation.
I-924................. Application for 0 6,230
Regional Center under
the Immigrant
Investor Pilot
Program.
N-300................. Application to File 235 250
Declaration of
Intention.
N-336................. Request for Hearing on 605 650
a Decision in
Naturalization
Proceedings.
N-400................. Application for 595 595
Naturalization.
N-470................. Application to 305 330
Preserve Residence
for Naturalization
Purposes.
N-565................. Application for 380 345
Replacement
Naturalization/
Citizenship Document.
N-600/................ Application for 460 600
600K.................. Certification of
Citizenship/
Application for
Citizenship and
Issuance of
Certificate under
Section 322.
Immigrant Visa DHS 0 165
Domestic Processing.
Biometrics............ Capturing, Processing, 80 85
and Storing Biometric
Information.
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III. Public Comments on the Proposed Rule

DHS provided a 45-day comment period following the publication of
the proposed rule and received 225 comments. DHS also invited the
public to access the commercial software utilized in executing the
budget methodology and developing the cost model underlying the
proposed rule to facilitate public understanding of the fee modeling
process explained in the supporting documentation. See 75 FR 33445,
33447. USCIS received no requests for access to the modeling program.
On June 9, 2010, USCIS Director Alejandro Mayorkas hosted a
stakeholder engagement that focused exclusively on the proposed rule.
During this engagement, Director Mayorkas provided information about
the rule and directed the public to the Federal Register and http://www.regulations.gov to submit comments on the proposed rule. Throughout
the public comment period, USCIS Senior Leadership met with
stakeholders during regularly-scheduled engagements and used these
opportunities to provide information and encourage individuals and
groups to submit written comments.
DHS received comments from a broad spectrum of individuals and
organizations, including refugee and immigrant service and advocacy
organizations, public policy and advocacy groups, members of Congress,
and private citizens. Many comments addressed multiple issues or
provided variations of opinion on the same substantive issues. Comments
ranged from strongly supportive of the fee changes to strongly
critical. Some comments provided critiques of the methodology and the
proposed fee schedule, while others suggested alternative methods and
funding sources to finance USCIS operations.
DHS has considered the comments received and all other materials
contained in the docket in preparing this final rule. The final rule
does not address comments seeking changes in United States statutes;
changes in regulations or applications and petitions unrelated to, or
not addressed by, the proposed rule; changes in procedures of other
components within DHS or other agencies; or the resolution of any other
issues not within the scope of the rulemaking or the authority of DHS.
All comments may be reviewed at the Federal Docket Management System
(FDMS) at www.regulations.gov, docket number USCIS-2009-0033. The
public may also review the docket upon request by contacting USCIS
through the contact information listed in this rule.

A. Authority to Promulgate Fees

Several commenters questioned DHS's authority to promulgate the
rule. Specific comments challenged DHS's authority to charge specific
amounts for specific fees, to cross-subsidize fees, and to make policy
decisions that affect the amount of specific fees. These comments
asserted both generally, and in regard to specific fees, that DHS's
proposed fee schedule was not in conformity with different provisions
of law, policy, and guidance. Some commenters suggested that
administrative and overhead costs were not related to the provision of
services and should be excluded. Other commenters suggested that
enforcement costs should be excluded from the fees, while others
recommended that all of the enforcement costs of immigration and law
enforcement agencies should be recovered by fees. Several commenters
asserted that expenses not related to the provision of ``adjudication
and naturalization services'' are matters of public benefit and should
instead be funded by appropriation. Commenters also suggested that DHS
was not authorized to ``bundle'' fees or to cross-subsidize costs of
one service with funding from another fee.
Underlying these comments is the issue of compliance with the
authorizing statute and conformance with internal Executive Branch
guidance. Although some commenters recognized that DHS is permitted to
fund all USCIS operations from fees, they asserted there is no
statutory mandate requiring it to do so. These comments raise the issue
of the general structure of the Immigration Examinations Fee Account
(IEFA), and whether fees can legally recover certain costs.
DHS disagrees. DHS outlined its authority to promulgate the USCIS
fee schedule in the proposed rule. 75 FR 33445, 33447-8. DHS carefully
reviews its authority to act and provides a more detailed explanation
of its legislative authority and management guidance in response to
these comments.
1. Immigration and Nationality Act Section 286(m)
The Immigration and Nationality Act, 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 that 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'.''
---------------------------------------------------------------------------

Congress also has imposed specific fixed fees, such as the $7
individual immigration inspection fee at ports of entry. INA section
286(d), 8 U.S.C. 1356(d). Additionally, Congress has established
certain fixed fees and provided a specific method for adjustment of
those fees, such as the premium processing fee. INA section 286(u), 8
U.S.C. 1356(u). DHS considers the structure of all of these provisions
and the relationship between fee requirements and appropriated funds in
reaching decisions about the USCIS fee schedule.
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

[[Page 58966]]

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.
---------------------------------------------------------------------------

\2\ Congress's intent in using individual terms, such as ``full
cost,'' is clear, although the totality of the section is ambiguous.
---------------------------------------------------------------------------

Congress additionally provides annual 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. In
appropriating specific funds, Congress approves of the fee amounts
promulgated by DHS for the operation of USCIS by approving the total
expenditure level. 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.
Before the IEFA was created in 1988, all activities related to case
processing were funded by appropriations. See Public Law 100-459,
section 209, 102 Stat. 2186 (Oct. 1, 1988). While fees were charged
prior to 1988, those fees were treated as miscellaneous receipts of the
United States Treasury and deposited in the General Fund. Those fees
were not available to the Immigration and Naturalization Service for
expenditure. The IEFA was created to provide an alternative to
appropriations. As many of the commenters stated, the law does not
preclude the use of appropriations to subsidize fee receipts to fund
operations. In the absence of appropriations, however, USCIS's only
funding source is fee revenue. Of the $386,000,000 requested in the FY
2011 Budget, $259,000,000 will cover the estimated cost of asylum and
refugee surcharges ($207 million), the SAVE program ($34 million), and
the Office of Citizenship ($18 million) for FY 2011. The fees in this
rule assume that the costs of these activities will not be financed by
fee revenue and, instead, paid with appropriated funds.
Commenters suggested that only the activities directly relating to
specific adjudications should be charged to those who apply for the
benefits. These comments rely on statutory authority separate from the
authority for these fees. The general authority for the United States
to impose and collect ``user'' fees stems from the Independent Offices
Appropriation Act, 1952 (IOAA), 31 U.S.C. 9701(b). Under the IOAA, a
``value'' to the recipient is a key threshold factor and the costs of
``public interest'' have been effectively included within the fees.
National Cable Television Ass'n v. United States, 415 U.S. 336 (1974);
FPC v. New England Power Co., 415 U.S. 345 (1974); Seafarers Internat'l
Union v. Coast Guard, 81 F.3d 179, 183 (DC Cir. 1996). In New England
Power Co., the Supreme Court held that the IOAA authorizes ``a
reasonable charge'' to be made to ``each identifiable recipient for a
measurable unit or amount of Government service or property from which
[the recipient] derives a special benefit.'' See 415 U.S. at 349
(quoting Bureau of the Budget Circular No. A-25 (Sept. 23, 1959)). The
Court held that such fees may be assessed to an individual even when
the benefits from the service provided are not only special to the
recipient but widespread to the general public as a whole. Id. See also
National Cable Television Ass'n, 415 U.S. at 343-44. So long as the
service provides a special benefit above and beyond that which accrues
to the public at large to a readily-identifiable individual, the fee is
permissible. New England Power, 415 U.S. at 349-51 & n. 3.
Prior to the enactment of INA section 286(m) 8 U.S.C. 1356(m), fees
charged for immigration services were governed by the IOAA and were
judicially reviewed under the IOAA. A more elementary cost analysis
than that currently used was upheld by the courts. Ayuda, Inc. v.
Attorney General, 661 F. Supp. 33 (D.D.C. 1987), aff'd, 848 F.2d 1297
(DC Cir. 1988). As the Court of Appeals in Ayuda stressed, the
procedures were ``triggered only at the instance of the individual who
seeks, obviously, to benefit from them.'' 848 F.2d at 1301.
Congress changed this formulation for immigration fees in the
enactment of INA section 286(m) and the creation of the IEFA. DHS's
authority under INA section 286(m) is an exception to the limitations
of the IOAA. 31 U.S.C. 9701(c). The relevant, second proviso was added
to the INA after the Court of Appeals decided Ayuda under the IOAA. See
Public Law 101-515, section 210(d)(1), (2), 104 Stat. 2120, 2121 (Nov.
5, 1990). The statutory provisions in section 286(m) are broader than
the IOAA, authorizing DHS to recover the full cost of providing
benefits and ensuring sufficient revenues to invest in improved service
and technology. Even though the requirements of the IOAA do not apply
in developing these fees, DHS and USCIS are mindful of the need to
explain the process to the general public and have done so. Cf. Engine
Manufacturers Assoc. v. EPA, 20 F.3d 1177 (DC Cir. 1994).
Accordingly, DHS disagrees with the commenters' suggestions that it
has exceeded its authority to promulgate fees to recover the full cost
of operating USCIS. Congress and the Executive Branch have been in
agreement that the full cost of operating USCIS should come from the
sum of the general IEFA fee account, several other specific fee-driven
provisions of statute, and annual appropriated funds. The balance of
the funding between these accounts is struck by Congress in determining
the annual appropriation, and DHS and USCIS negotiate that result with
Congress and adjust as practical the total amount charged as fees,
which is ultimately approved by Congress as the amount that may be
expended.
2. Biometrics for Temporary Protected Status
A commenter expressed specific concern that the proposed charges to
the biometric services fee in the proposed fee rule are unlawful in
their application to the temporary protected status (TPS) program. TPS
is a temporary benefit that eligible aliens in the United States may
request if their home countries have been designated for TPS by the
Secretary based on temporary and extraordinary conditions that prevent
such aliens from being able to return to their countries safely, or in
certain circumstances, where their countries are unable to handle their
return adequately. See generally INA section 244, 8 U.S.C. 1254a.
The commenter suggested that if at least certain TPS re-registrants
are not exempt from the biometric services fees, then the proposed
changes may run afoul of the statutory constraints on fees charged to
TPS registrants because the biometric services fee would: (1) Charge
for services that are not provided; (2) charge for services that do not
constitute ``biometric services;'' and (3) charge for services that are
not necessary. Based on

[[Page 58967]]

the potential problems with requiring all TPS re-registrants to pay the
biometric services fee, the commenter respectfully urged USCIS to
interpret its fee rule to exempt TPS re-registrants from paying the
biometric services fee, or impose a reduced fee for TPS re-registrants
whose biometric information does not need to be collected. The
commenter additionally suggested that initial TPS registrants should
not be charged the costs of background checks that are already subsumed
in the $50 TPS registration fee. INA section 244(c)(1)(B), 8 U.S.C.
1254a(c)(1)(B) (authorizing ``payment of a reasonable fee as a
condition of registering [for TPS] . * * * The amount of any such fee
shall not exceed $50.'' (emphasis added)); Department of Homeland
Security Appropriations Act, 2010, Public Law 111-83, section 549, 123
Stat. 2177 (Oct. 28. 2009); 8 U.S.C. 1254b(a) (authorizing ``fees for
fingerprinting services, biometric services, and other necessary
services [to] be collected when administering the program described in
section 1254a''); 75 FR 33445, 33446-01, 33447. The commenter asserts
that because of these limits, a $50 TPS application fee is imposed only
once, upon initial registration.
The commenter noted that it represents a nationwide class of
Central American TPS applicants, in the currently pending class action
challenging USCIS biometric fee requirements.\3\ The majority of the
comment reiterated the arguments that the plaintiffs made in the
litigation. DHS agrees with the reasoning of the District Court in
dismissing that case.\4\
---------------------------------------------------------------------------

\3\ Bautista-Perez v. Holder, No. 3:07-cv-04192-TEH (N.D. Cal.).
See 2009 WL 2031759 (N.D. Cal. July 9, 2009) (order denying
plaintiff's motion for partial summary judgment and granting in part
and denying in part defendants' cross-motion for summary judgment).
\4\ Bautista-Perez v. Holder, No. 3:07-cv-04192-TEH (N.D. Cal.
Sept. 15, 2010), Dk. No. 153 (order granting defendant's motion to
dismiss with leave to amend complaint). ``The strict accounting that
Plaintiffs demand for the biometric services fee is unwarranted by
the statute. [Pub. L. 111-83, section 549, 123 Stat. 2142 (Oct. 28,
2009)] does not purport to dictate how USCIS calculates the fee for
this service; it merely authorizes the charging of fees for
``necessary services * * * when administering'' the TPS program.
USCIS does not defy that authority by charging a standard fee even
though some applicants require more services than others. * * *
Plaintiffs argue, in essence, that section 549 requires every
component of the fee to be directly tied to the fee-payer's TPS
application. The Court does not see how section 549 gives it the
authority to scrutinize the calculation of USCIS's biometric
services fee in such painstaking detail.'' Dk. No. 154, slip. op. at
15.
---------------------------------------------------------------------------

DHS had proposed in that section that no biometric services fee
would be charged when ``[t]here is no fee for the associated benefit
request that was, or is, being submitted.'' See proposed 8 CFR
103.7(b)(1)(i)(C)(2); 75 FR 33445, 33484. DHS proposed this change both
as a humanitarian measure and for administrative efficiency for certain
immigration benefit requests for which DHS had previously provided an
exemption from the initial immigration benefit request fee for the
underlying benefit request in the FY 2008/2009 fee rule. The 2008/2009
fee rule promulgated several general exemptions to immigration benefit
request fees. For example, the rule provided that there was no fee for
a Petition for Amerasian, Widow(er), or Special Immigrant, Form I-360,
filed by an individual seeking classification as an Amerasian; a self-
petitioning battered or abused spouse, parent, or child of a United
States citizen or lawful permanent resident; or a Special Immigrant
Juvenile. See 72 FR 29851 (May 30, 2007), 29865, 29873. Fee exemptions
were also provided for four small volume programs: victims of human
trafficking (T visas), victims of violent crime (U visas), VAWA self-
petitioners, and Special Immigrant Juveniles. The reasons for providing
these specific application and petition fee exemptions were fully
discussed in the 2008/2009 proposed fee rule. See 72 FR 4888, 4903
(Feb. 1, 2007). In that rule, DHS also provided for additional fee
waivers, such as the biometric fee, where individuals demonstrate an
inability to pay. See 72 FR 29851, 29874; 8 CFR 103.7(c)(5).
Although DHS exempted individuals requesting the specific
humanitarian benefits noted above from having to pay the immigration
benefit request fees in the FY 2008/2009 fee rule, DHS did not
specifically exempt them, on a blanket basis, from also paying the
associated biometrics fee. At that time, DHS only provided eligibility
for an individualized biometrics fee waiver where the applicant or
petitioner could show an inability to pay the biometrics fee under 8
CFR 103.7(c). There has been continuing confusion since the FY 2008/
2009 fee rule about whether the biometric services fee is required if
the immigration benefit request fee is not required. USCIS has
accommodated some of the concerns by administratively treating a
request for a fee waiver of the underlying benefit fee as also a
request for a waiver of the biometrics fee, and not requiring a
duplicate, simultaneous or subsequent request to waive that fee. In the
proposed rule, DHS proposed an amendment in 8 CFR 103.7(b)(1)(i)(C)(2)
to simplify the process so that a biometrics fee would also not be
required for those particular fee-exempt immigration benefit requests
that DHS considered when deciding to provide fee exemptions. DHS also
intended that no biometrics fee would be required in cases where any
immigration benefit request fee for the associated benefit was waived,
on a case-by-case basis, under 8 CFR 103.7(c).
The proposed revision and the final rule implement Congressional
enactment of the Department of Homeland Security Appropriations Act,
2010, specifying that: ``In addition to collection of registration fees
described in section 244(c)(1)(B) of the [INA] (8 U.S.C.
1254a(c)(1)(B)), fees for fingerprinting services, biometric services,
and other necessary services may be collected when administering the
[TPS] program described in section 244 of such Act.'' Public Law 111-
83, 123 Stat. 2142 (Oct. 28, 2009).
Through the language that was initially proposed for 8 CFR
103.7(b)(1)(i)(C)(2) and consistent with current TPS fee waiver
practice, DHS intended that the biometrics fee would not be required
from an initial TPS applicant who was granted a waiver of the initial
TPS application fee based on inability to pay. However, DHS did not
intend that the proposed regulatory language should be construed to
exempt from payment of the biometric services fee all TPS
beneficiaries, aged 14 and older, who apply to re-register for TPS,
regardless of inability to pay. Although applicants for TPS re-
registration do not currently submit the $50 for the Application for
Temporary Protected Status, Form I-821, after their initial TPS
applications, TPS beneficiaries have often held TPS status for several
years, and they have been eligible for employment authorization at
least since obtaining TPS, and earlier if they were found eligible for
TPS temporary treatment benefits. See 8 CFR 244.5 and 244.12. Most TPS
beneficiaries, in fact, have employment authorization documents.
Unlike many of the initial applicants for the fee-exempt
humanitarian benefits, such as T and U visas, special immigrant
juveniles, and certain self-petitioning battered aliens, TPS
beneficiaries seeking re-registration have work authorization and thus,
generally have less need for a blanket exemption from the biometric
services fee. If all such re-registering TPS beneficiaries were exempt
from the biometrics fee, the cost of providing them with biometric
services would need to be borne by other applicants and petitioners for
immigration benefits. DHS does not perceive a need to shift the
biometrics costs for re-registering TPS beneficiaries onto other
individuals

[[Page 58968]]

through a blanket biometrics fee exemption. However, DHS will continue
to provide, on an individual basis, a fee waiver of the biometrics fee
when a re-registering TPS beneficiary does demonstrate an inability to
pay the $85 biometric fee. DHS has revised the language of this
provision to ensure clarity and to alleviate potential confusion. New 8
CFR 103.7(b)(1)(i)(C).
3. Bundling
One commenter specifically argued that defects in the current
regulation persist in the proposed fee rule in that both the current
regulations and the proposed rule exceed the authority granted under
INA section 286(m), 8 U.S.C. 1356(m), by ``bundling'' certain benefits
and associated fees. Specifically, the commenter argued that DHS erred
in the 2008/2009 fee rule by: (1) Impermissibly ``bundling'' the fee
for applications to adjust status with the fees for interim benefits,
requiring applicants to pay for services that they do not want or need,
cannot use, and/or do not actually receive and (2) improperly including
in application and petition fees the costs of agency activities that
are distantly related, if at all, to the provision of immigration
services to fee-paying applicants.\5\
---------------------------------------------------------------------------

\5\ The commenter makes the same arguments that it made in
Barahona v. Napolitano, No. 1:10-cv-1574-SAS (S.D.N.Y.).
---------------------------------------------------------------------------

DHS disagrees with the commenter's belief that the law requires
that IEFA fees be tied to the actual services provided. As explained
above, the cost-to-services linkage under the IOAA is not applicable to
fees under the IEFA, which is an exception to the IOAA. The IEFA is
administered using the cost modeling similar to that used in IOAA fees,
but necessarily includes administrative decisions to assign overhead
costs that cannot be readily associated with specific activities.
Similarly, administrative discretion must be applied when a substantial
cost would be generated in attempting to drive costs to highly
individualized objects, such as individual applicants. In effect, the
Administration bundles certain costs to fees because it may be more
efficient to do so and can create a total lower cost of operation. DHS
determined to bundle the fees as a resolution to simplify interim
benefits and reduce interim benefit applications. The costs of
administering individualized fee determinations exceed the benefits to
the totality of applicants and petitioners, and the government. 72 FR
29851, 29861 (providing multiple fee options based on who typically
requests interim benefits, when records indicate that the vast majority
of applicants do request interim benefits, would be too complicated and
costly for USCIS to administer). USCIS may reconsider this evaluation
during a fee review cycle after the implementation of electronic
records. DHS and USCIS may be able to provide this type of customized
fee structure in the future, but cannot effectively do so at this time.
The commenter's concern reflects a limited view of the decision-
making process. Policy decisions inherently made by regulations
directly affect the fee structure. For example, the policy decision 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). Each such decision affects the totality of the fee-paying
applicants and petitioners and removes some source of revenue.
Inherently, and consistent with INA section 286(m), 8 U.S.C. 1356(m),
that revenue is recovered from other fee-paying applicants and
petitioners.
The commenter's suggestion that DHS lacks authority to make policy
decisions adjusting the amount of fees also overlooks the reality of
the two contiguous and complete sources of funding for USCIS. The
totality of funding for USCIS from two sources effectively means that
if one source is insufficient, the other source must make up the
difference, or workload will not be performed at the prescribed level,
itself a policy choice.
Policy decisions made regarding the implementation of the
Immigration and Nationality Act and other immigration laws inherently
and directly affect USCIS budget requirements. Both INA section 286(m)
and Congress, in annual appropriations and expenditure level approvals,
recognize this point. The Administration has taken steps within the
enacted FY 2010 appropriations for USCIS to move away from fee-
generated revenue to support asylum, refugee, and military
naturalization costs. The Administration seeks to improve the linkage
between fees paid by USCIS applicants and petitioners and the cost of
programs and activities to provide immigration benefits as a matter of
policy, not a matter of law.
4. Fraud Detection and National Security (FDNS) and Other Program Costs
Several commenters suggested that the proposed rule should have
excluded any law enforcement or national security functions, such as
the Fraud Detection and National Security (FDNS) operations. DHS
disagrees with these suggested restrictions and continues to believe
that it may fund, as a matter of discretion, all of USCIS operations,
or more, from fees.
Other commenters suggested that additional costs should be
recovered through the IEFA account. Implicitly, these comments suggest
an understanding that the authority of DHS under the INA is broader
than DHS is, in fact, currently exercising.
The realignment of functions within USCIS to create the FDNS was a
consolidation of specific previous functions from benefit programs to
streamline operations. In a sense, FDNS was created to consolidate the
anti-fraud efforts within USCIS that have traditionally been funded
from fees. These anti-fraud efforts are not impermissible under INA
section 286(m), 8 U.S.C. 1356(m). DHS does not opine on whether the
anti-fraud efforts of FDNS would be permissible under the IOAA, but
only that INA section 286(m) is an exception to the IOAA and the
Administration is permitted to decide, as a matter of policy, to
include these charges within the IEFA. 31 U.S.C. 9701(c).
As for anti-fraud, law enforcement, and national security efforts,
DHS believes that the commenters misunderstand the nature of these
efforts. These efforts are integral to determining an applicant's
eligibility for a benefit, and to maintain the integrity of the
immigration system. Background check information helps benefit public
safety and security by identifying persons who may be ineligible for a
benefit due to a criminal background. Further, recent fraud detection
efforts have resulted in changes to several USCIS programs, such as the
final rule, Special Immigrant and Nonimmigrant Religious Workers,
published specifically to address concerns about the integrity of the
religious worker program that were uncovered by USCIS fraud detection
experts. See 73 FR 72276 (Nov. 26, 2008). The filing of an immigration
benefit request is why security checks, fraud reviews, and
investigations of possible violations are

[[Page 58969]]

needed. Thus it is appropriate for the full costs of these efforts to
be funded by fees paid by those who file such requests.
Accordingly, DHS disagrees that the inclusion of FDNS in the fee
calculation is inappropriate and will continue to fund that function
through fees. This final rule establishes a level of fees sufficient to
recover the full cost of operating USCIS, including the anti-fraud
functions of FDNS. The rule has not been amended to include other costs
that could legally be charged or to exclude any costs of operating
USCIS.
5. Office of Management and Budget Circulars
Several commenters also suggested that DHS's authority to
promulgate fees is limited by Office of Management and Budget (OMB)
Circular No. A-25, which ``establishes Federal policy regarding fees
assessed for Government services'' and defines the term ``full cost.''
OMB Circular A-25, User Charges, 58 FR 38142 (July 15, 1993), available
at http://www.whitehouse.gov/omb/circulars_a025. See FPC v. New
England Power Co., 415 U.S. at 349-51. DHS agrees that OMB Circular A-
25 sets federal policy and provides guidance for user fees under the
IOAA, 31 U.S.C. 9701, discussed above, but disagrees that Circular A-25
applies under INA section 286(m), 8 U.S.C. 1356(m). The guidance of OMB
Circular A-25 is internal Executive Branch policy guidance, direction
from the Office of Management and Budget to the agencies on the subject
of user fees under the IOAA.
As the Circular explains, OMB issued it pursuant to ``Title V of
the Independent Offices Appropriations Act of 1952 (31 U.S.C. 9701)''
(IOAA). See Circular A-25, section 3 (``Authority''). The Circular goes
on to explain the relationship between the Circular's provisions and
the IOAA, and between the Circular's provisions and other fee statutes:
``The provisions of the Circular shall be applied by agencies in their
assessment of user charges under the IOAA. In addition, this Circular
provides guidance to agencies regarding their assessment of user
charges under other statutes.'' See id., section 4b.
Thus, as the Circular explains, its provisions are ``guidance to
agencies regarding their assessment of user charges under other
statutes.'' One of these ``other statutes'' is INA section 286(m), 8
U.S.C. 1356(m). Accordingly, with respect to the implementation of INA
section 286(m), Circular A-25 has the status of internal Executive
Branch policy guidance. See HHS v. FLRA, 844 F.2d 1087, 1095-96 (4th
Cir. 1988) (en banc) (OMB Circular A-76 is internal Executive Branch
guidance). As Circular A-25 is internal Executive Branch guidance with
respect to the establishment of fees under INA section 286(m), the
Circular does not impose legally-binding (i.e., judicially enforceable)
limits on DHS' authority to promulgate fees under section 286(m). See
HHS v. FLRA, id. (as internal Executive Branch guidance, Circular A-76
is not judicially enforceable).
One commenter stated that OMB Circular A-25 requires USCIS to
identify the costs for each service and directly match those costs to
the fee charged. The commenter suggested that the expenses for
operating USCIS included in the calculation of costs that must be
covered from the collection of fees exceeded what was appropriate. The
commenter suggested that USCIS expenses recovered and fees paid must
relate to the specific service, and that DHS is not authorized to
include costs that are unrelated or only tangentially related to the
cost of providing the services. For example, the commenter suggested
that DHS is not authorized to recover with fees the costs of the SAVE
and E-Verify programs, or expenses related to anti-fraud, law
enforcement, and national security efforts.
As clearly stated in the proposed rule, DHS begins its fee process,
consistent with OMB Circular A-25, by engaging in activity-based
costing (ABC). See 75 FR 33445, 33448. USCIS adds to the ABC model
result the necessary amount for overhead and other costs not driven by
the cost of services. See id. This is consistent with full cost
recovery. The term ``full cost'' used in INA section 286(m), 8 U.S.C.
1356(m), means the costs of operating USCIS, less any appropriated
funding. DHS makes adjustments based on Administration policy within
its discretion under the INA. See 75 FR 33445, 33448. Thus, the fees
established in this rule are necessary, rational, and reasonable, and
comply with the INA and applicable guidance. The decision to structure
USCIS fees as proposed and in this final rule is the culmination of an
administrative process that conforms with Administration policy. As
stated in the proposed rule, USCIS has historically been funded almost
exclusively by fees. See 75 FR 33445, 33447. Also, the INA provides
authority to charge fees that are broader than the IOAA and Circular A-
25.
DHS understands the desire of the commenters. DHS's interpretation
of INA section 286(m) should not be construed to mean that the
Administration believes there is no merit in relating fees to specific
services rendered. The President has proposed to remove $259 million
from the USCIS fee base through appropriations for FY2011.
Congressional support for the first stage of this process is evidenced
by the FY2010 appropriation. The process by which increased linkage can
be made depends upon the Congress. While DHS agrees with the commenter
that certain costs ``should'' be borne by appropriation, until Congress
provides that appropriation, these costs must be borne by the fee
structure under INA section 286(m), 8 U.S.C. 1356(m). DHS has already
begun preparing for its next biennial immigration fee review. The next
fee review will consider further refinements to how immigration fees
are determined, including the level by which fees match assignable,
associated, and indirect costs.
6. Accounting Standards
Commenters implicitly questioned whether DHS and USCIS complied
with appropriate accounting standards in the proposed fee rule. The
proposed fee rule and this final fee rule reflect DHS conformity with
the requirements of the Chief Financial Officers Act of 1990 (CFO Act),
31 U.S.C. 901-03, 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).
Like OMB Circular A-25, the cost accounting concepts and standards
developed by the Federal Accounting Standards Advisory Board (FASAB)
define ``full cost'' to include: ``(1) The costs of resources consumed
by the segment that directly or indirectly contribute to the output,
and (2) the costs of identifiable supporting services provided by other
responsibility segments within the reporting entity, and by other
reporting entities.'' Federal Accounting Standards Advisory Board,
Statements of Financial Accounting Concepts and Standards:
Pronouncements as Amended 437 (June 2009). 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.
As generally accepted accounting principles, FASAB's standards are
conventions of federal financial accounting, not statutory or
regulatory requirements. As the Supreme Court pointed out in Shalala v.
Guernsey Memorial Hospital, ``Financial accounting is not a science. It
addresses

[[Page 58970]]

many questions as to which the answers are uncertain and is a `process
[that] involves continuous judgments and estimates.' '' 514 U.S. 87,
100 (1995) (citing, R. Kay & D. Searfoss, Handbook of Accounting and
Auditing, ch. 5, p. 7-8 (2d ed. 1989)).
As explained above, DHS applies the discretion provided in INA
section 286(m), 8 U.S.C. 1356(m), in a manner consistent with its
responsibilities for operation of government and the goals of providing
immigration services and transparent accounting. DHS applies that
judgment to: (1) Develop activity-based costing to establish basic fee
setting parameters, (2) apply administrative judgment to allocate
overhead and other indirect costs, and (3) apply policy judgments to
effectuate the overall Administration policy. The ``full'' cost to the
Government 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 in its
annual appropriations. This final rule, therefore, reflects the
authority granted to DHS by INA section 286(m) and other statutes.
In sum, DHS disagrees with the commenters' assertions that DHS has
exceeded its authority. DHS has implemented the requirements of INA
section 286(m) appropriately and has made no changes in the final rule
in light of these comments.

B. Relative Amount of Fees

A number of commenters argued that the proposed fees were too low,
while others thought the fees were too high. Some expressed general
concerns about immigration levels and stated that a fee increase would
reduce the number of people seeking immigration benefits. Others argued
that the fees were too high, especially when filing for families, and
were a barrier to family unification. Many commenters cited the general
state of the economy as a reason to delay fee increases.
1. Recovery of Additional Costs
Some of the commenters who agreed with fee increases asserted that
fees should be high enough to cover all USCIS costs related to the
processing of immigration benefits so that taxpayers are not asked to
pay for someone entering, residing, or seeking immigration services in
the United States. Some commenters favored increasing fees for
immigration benefit requests filed by businesses. Other commenters
supported a fee increase specifically for the purpose of improving
customer service. Several commenters suggested that fees should not be
based on USCIS costs, but on the value of the benefit received by the
applicant (e.g., United States citizenship). These commenters expressed
the view that immigration benefits are highly valuable and worthy of
special consideration. Other commenters suggested that increasing
specific fees, such as for an Application to Extend/Change Nonimmigrant
Status, Form I-539, instead of implementing their proposed fee
reduction, would mitigate other fee increases.
Filing fees established under this rule are higher than the current
fees but are based only on the estimated relative costs associated with
processing immigration benefit requests and other costs of operating
USCIS. Although a number of commenters suggested that USCIS increase
fees further, USCIS fees are based on the relative identifiable costs
associated with providing each particular benefit or service in
adherence with government-wide fee setting guidelines in OMB Circular
A-25, the CFO Act, and FASAB guidance. Filing fees do not function as
tariffs, generate general revenue to support broader policy decisions,
or like fines to deter unwanted behavior. DHS has maintained the
Application for Naturalization, N-400, fee at its current level to
avoid any possibility of providing a disincentive for people to apply
for naturalization. In addition, DHS has provided fee exemptions of
certain fee based on humanitarian grounds and the ability to request a
waiver of certain fees based on financial considerations, so that
certain populations do not choose to not request benefits to which they
may be entitled because of the fee. Besides those policies, filing fees
are not used to favor businesses, families, geographical areas,
influence larger public policy in favor of or in opposition to
immigration, limit immigration, support broader infrastructure, or
impact costs beyond USCIS.
DHS designed this rule to establish fees sufficient to reimburse
the costs of processing immigration benefit requests and the related
operating costs of USCIS. While USCIS has authority to collect fees for
broader government-wide costs of administering the United States
immigration system, DHS has chosen to structure the fees to recover
only the projected full operational cost. USCIS believes that this
decision is consistent with broader Administration policy on user fees
and the intent of Congress in the enactment of, and amendments to, INA
section 286(m), 8 U.S.C. 1356(m). Accordingly, DHS has not changed its
proposed fees based on these comments.
2. Proposed Fees Are Unreasonably High
A number of comments opposed the proposed fee increases in general
terms or highlighted particular immigration benefit requests and argued
that the proposed fee increases would effectively exclude aliens
generally, or groups of aliens, from immigration benefits and services.
Some suggested that fee increases send the wrong message to people who
are attempting to comply with the immigration benefit process and
United States immigration laws, and that higher fees may discourage
legal immigration while encouraging aliens to attempt to enter the
United States and work illegally. Other commenters questioned how DHS
could raise fees again in light of the 2007 fee increase.
a. Barrier to Family Reunification.
Some commenters asserted that the fees caused an undue burden on
families seeking to be reunited or maintain legal status. Commenters
mentioned the burden caused when multiple applications or petitions
must be filed for family members.
USCIS understands the concerns of these commenters and their desire
for families to remain intact while benefiting from the advantages of
U.S. lawful residence and citizenship. United States immigration laws
and policy generally favor immigration of families by giving preference
to certain immigrants who are related to an immigrant or United States
citizen. USCIS understands that family-based applications and petitions
could involve multiple requests and thus multiple fees, depending on
the relationships and family size. USCIS filing fees are usually a
relatively small portion of the overall cost of travel, legal expenses,
relocation, and other expenses incurred in immigrating to the United
States. In addition, since fees provide the capacity necessary for
USCIS to do the work associated with the filing, when fees do not fully
recover costs USCIS is unable to maintain sufficient capacity to
process the work. This diminished capacity could significantly delay
immigration, an impact which can be far more of a burden on a family
than the proposed change in filing fee. In any event, USCIS does not
believe that the increases made in this rule will significantly
influence a decision of a family member to petition for a family member
to join him or her in the United States. As a result, no changes are
made

[[Page 58971]]

in the final rule as a result of these comments.
b. Fee Increases Reduce the Number of Filers.
Many commenters stated that fee increases would reduce the number
of filers and curb immigration to the United States. There are many
complex variables that influence the demand for immigration benefits
including: the economy, Congressional policy debates, state legislative
actions, business cycles, and benefit fees. Obviously, benefit fees
only represents one of these determinants. The commenters did not
provide reference data or specifically articulate how benefit fees
might impact filing volume. Further, DHS did not study the
ramifications of raising this fee, as the purpose of this rulemaking is
to set fees to recover costs.
Commenters also touched on the larger issues of immigration policy
that aliens should be encouraged to immigrate to the United States. As
noted above in relation to the opposite position, the purpose of the
fee schedule is not to establish broad immigration policy or induce
individuals to immigrate to the United States, but to recover the costs
necessary to operate USCIS. Accordingly, DHS did not adjust the fee
schedule in response to these comments in this final rule.
c. Income-Based Fee Structure.
A number of commenters suggested that USCIS should base fee levels
on the applicant's or petitioner's ability to pay or status as an
employer. Under a system of full cost recovery through fees, this
approach would mean lower fees for some based on income but higher fees
for other applicants irrespective of how much it actually costs USCIS
to adjudicate their application.
Adjusting fee levels based on income would be administratively
complex and would require higher costs to administer. A tiered fee
system would require staff dedicated to income verification and
necessitate significant information system changes to accommodate
multiple fee scenarios. The costs and administrative burden associated
with implementing such a system would be unreasonable and would cause
additional fee increases. USCIS therefore does not support such a
system at this time. DHS has not changed the rule in response to these
comments.
d. Supplementary Costs to Applicants and Petitioners.
Many commenters suggested that increasing fees would adversely
impact the applicants' and petitioners' ability to pay for additional
services, such as legal fees or notaries, and, therefore, DHS should
reduce fees. These comments included specific comments that an increase
in fees would reduce the ability of applicants and petitioners to pay
fees charged by non-profit organizations representing the applicants
and petitioners before USCIS and other immigration components of DHS,
and before immigration judges and the Board of Immigration Appeals
within the Department of Justice.
DHS understands the comments, but has made no change to the rule as
a result of them. Other regulations address the nominal costs that non-
profit accredited organizations may charge. See 8 CFR 292.2(a)(1). If
those or other costs adversely impact the private organizations, it is
not a function of DHS to ensure that the organizations have sufficient
funds.
3. Comments on Specific Fees and Adjustments
While many commenters opposed the fee increase in general, some
commenters took issue with increases to specific fees and fees for
certain categories of applicants and petitioners. Commenters also
suggested that some fees be increased in order to reduce increases to
other fees or to reduce other fees.
a. Student Employment Authorization.
Some commenters requested that fees for certain classes of non-
immigrants, such as students, be reduced. Specifically, commenters
noted that the filing fee for an Application for Employment
Authorization, Form I-765, or employment authorization document (EAD)
is particularly burdensome to students who may only have seasonal
employment. These commenters expressed significant concerns about the
fee's effect on the limited financial capability of most international
students in F-1 visa status and their ability to apply for work
authorization when they choose to participate in the Optional Practical
Training (OPT) program.
For international students, F-1 status allows a student to remain
in the United States as long as he or she is a properly registered
full-time student. See INA section 101(a)(15)(F)(i), 8 U.S.C.
1101(a)(15)(F)(i); 8 CFR 214.2(f)(5). Under F-1 status and subject to
certain conditions and restrictions, a student may work part-time in an
on-campus job and in a ``practical training'' job directly related to
the student's field of study for 12 months during or after the
completion of studies. Id. The OPT program provides F-1 students with
an opportunity to apply knowledge gained in the classroom to a
practical work experience off campus. The maximum period of OPT is 29
months for an F-1 student who has completed all course requirements for
a degree in a science, technology, engineering, or mathematics field
and has accepted employment with an employer enrolled in the DHS E-
Verify employment verification program and 12 months for all other F-1
students who have completed all course requirements for a degree. See 8
CFR 214.2(f)(10)(ii).
The United States places a very high value on attracting
international students and scholars to this country. The contributions
to the academic experience for all students provided by the existence
of a diverse international student body are invaluable. The resources
devoted to delivering immigration benefits to deserving students show
the importance of this goal to USCIS. Nonetheless, substantial
resources are expended by USCIS for adjudication of the student's
eligibility for employment documents and the fee for an EAD was
established based on those needs. While USCIS acknowledges that the
income provided by OPT is helpful to the students, the emphasis of OPT
is on training students in their fields of study, not as a source of
income. Moreover, EAD applicants may request an individual fee waiver
based on inability to pay. Fee waivers should be rare for students
because the cost of applying for such a work authorization is a small
fraction of the total costs of a student living in the United States,
including tuition, room, and board, and international travel to and
from his or her country of origin.
USCIS will continue to charge the full fee based on the effort and
resources expended to process this benefit for EAD applications not
granted a fee waiver. No changes to the regulation have been made as a
result of these comments.
b. Entertainers, Athletes, and Other Individuals With Extraordinary
Talent.
Numerous commenters objected to the fee increase for nonimmigrant
petitions for admission of entertainers, athletes, and other
individuals with extraordinary talent to work in the United States on a
temporary basis (O and P visas). Some commenters cited issues with
booking performances utilizing these performers and noted the inability
of USCIS to process the visa requests within the 14 days allotted by
statute for petitions not needing additional supporting documentation.
See INA section 214(c)(6)(D), 8 U.S.C.

[[Page 58972]]

1184(c)(6)(D). Commenters opined that they faced the burden of
utilizing premium processing to ensure artist availability. Many
commenters strongly opposed the increase of the fee and the premium
processing fee if improvements in the quality of the visa process were
not made, to include meeting the 14-day processing time requirement.
Some commenters requested that USCIS treat non-profit performing arts
organizations differently than for-profits, suggesting lower fees for
non-profits in consideration of their resource means relative to those
of for-profit entities. USCIS understands the concerns of commenters
and has made reaching the 14-day adjudication process time a goal for O
and P visa petitions. USCIS is currently meeting that goal at both
service centers that process O and P petitions.
Many commenters noted difficulty managing and responding to USCIS
requests for evidence (RFEs). A commenter suggested that USCIS develop
a pre-certification process for employers filing multiple petitions to
prevent them from having to address the same RFE on multiple occasions.
USCIS appreciates these recommendations. USCIS is exploring a
registration process for employment-based visa petitioners and is
developing policies and training to address these concerns, but these
matters are outside of the context of this fee rule.
DHS will not, at this time, implement changes to the USCIS fee
system that attempt to account for different levels of income or, in
this case, organizational resources. Such a change would require
additional administrative complexity, higher costs and, consequently,
higher fees for some benefits.
c. Adoption.
One commenter requested that USCIS reduce fees related to overseas
adoption. USCIS acknowledges the sensitive nature of these petitions.
USCIS proposed using its fee setting discretion to adjust certain ``low
volume'' application and petition fees based on such equitable
considerations and capped the fee for a Petition to Classify Orphan as
an Immediate Relative, Form I-600; the Application for Advance
Processing of Orphan Petition, Form I-600A; the Petition to Classify
Convention Adoptee as an Immediate Relative, Form I-800; and the
Application for Determination of Suitability to Adopt a Child from a
Convention Country, Form I-800A. 75 FR 33445, 33461. Under the fee rule
methodology, the calculated fee for these forms would have been as much
as $1,455--an increase of more than $785 or 100%. This fee level is due
to the complexity of orphan petition adjudications, which often require
several background checks and home visits, knowledge of adoption laws
in multiple jurisdictions and foreign countries, and a thorough review
of supporting documentation and evidence. However, USCIS believes that
it would be contrary to public interest to impose a $785 fee increase
on potential adoptive parents. To reduce this burden on adoptive
parents, DHS lowered the fee increase to $50, or a little more than 7%.
Any further reductions would shift an inordinate amount of these costs
to other immigration benefit request applicants and petitioners. No
changes to the rule have been made as a result of this comment.
d. Entrepreneurs.
A few commenters claimed that the fee for the Immigrant Petition by
Alien Entrepreneur, Form I-526, is excessively high. A commenter stated
that USCIS has not shown why the percentage increase for the Immigrant
Petition by Alien Entrepreneur (for EB-5 status) filing fees should be
higher than others, especially when compared to the Petition by
Entrepreneur to Remove Conditions, Form I-829. Another commenter added
that petitions to remove conditions generally should take less time to
adjudicate than the original entrepreneur petition, which has a lower
proposed fee.
One commenter incorrectly calculated the fee increase for the Form
I-526 as 14%. The actual percent increase for the Form I-526, from
$1,435 to $1,500, is only 4.5%, well below the weighted average
increase of 10%. Contrary to the commenter's statement, the percent
increase for the I-526 is not higher than other benefit fee increases.
The Immigrant Petition by Alien Entrepreneur and Petition by
Entrepreneur to Remove Conditions are two of the more labor intensive
petitions that USCIS processes, as evidenced by the high completion
rates (i.e., rate of work time) in the proposed rule. 75 FR 33445,
33471. As stated in the proposed rule, the more complex an immigration
or naturalization benefit application or petition is to adjudicate, the
higher the unit costs assigned to that task by the activity-based cost
model. 75 FR 33445, 33459, 33470. Although the completion rates for the
entrepreneur petition and the petition to remove conditions are
approximately the same, the fees are substantially different because
the costs are being spread across a smaller number of petitions,
resulting in a higher unit cost for the petition to remove conditions.
75 FR 33445, 33467. USCIS explained this reasoning in the proposed rule
and has not modified the rule in response to the comments.
e. Refugee Travel Documents.
One commenter asserted that both the current fee and the proposed
fee increase for the refugee travel document conflicts with United
States obligations under Article 28 of the 1951 U.N. Convention
Relating to the Status of Refugees. The United States is a signatory to
the 1967 U.N. Protocol Relating to the Status of Refugees (``the
Refugee Protocol''), which, by reference, adopts articles 2 through 34
of the 1951 Convention. See United Nations Protocol Relating to the
Status of Refugees, Jan. 13, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267.
Article 28 of the 1951 Convention provides that state parties are
obligated to issue documents for international travel to refugees
lawfully staying in their territory and that ``the provisions of the
Schedule to this Convention shall apply with respect to such
documents.'' The referenced Schedule provides at paragraph 3 that
``[t]he fees charged for issue of the document shall not exceed the
lowest scale of charges for national passports.'' Id.
After carefully considering this comment, DHS has determined that
the fee for the Refugee Travel Document should be lowered to match the
fee charged for the issuance of passports. The Department of State
passport fee for an adult over the age of 16 is $110 plus a $25
execution fee. For an applicant under the age of 16, the fee is $80
plus a $25 execution fee. Accordingly, this final rule reduces the fee
for the filing of a Form I-131 for a Refugee Travel Document to $135
for an adult age 16 or older, and $105 for a child under the age of 16.
USCIS will continue to charge the $85 biometrics fee since that fee is
intended to cover the costs of a service that is separate from the
issuance of the refugee travel document. The fee for other applications
for advance parole and travel documents will be $360 as calculated in
the model. See 8 CFR 103.7(b)(1)(i)(M).
4. Fee Decreases
A number of commenters questioned the rationale of implementing fee
decreases. Some commenters suggested that fees that are set to decrease
should instead be increased in order to mitigate the impact of other
fee increases. A few commenters opined that only immigration benefit
requests filed by employers should increase, while those filed by
individuals should not, reasoning that employers can better

[[Page 58973]]

afford fee increases. On the other hand, many commenters argued against
increasing fees for petitions filed by employers, stating that
increasing the fees for those petitions may increase reluctance by
employers to hire non-U.S. citizens. Also, a number of commenters
expressed appreciation for the fee decreases.
USCIS believes that it is important that fees be based as much as
possible on the relative identifiable costs associated with providing
each particular benefit or service to follow the spirit of government-
wide fee setting guidelines in OMB Circular A-25, the CFO Act, and
FASAB guidance. USCIS uses an activity-based cost model to determine
the appropriate fee for each immigration benefit request. This model
considers a variety of factors such as budgetary costs, the number of
anticipated requests, the time necessary to adjudicate the request, the
locations that receipt and complete the request and their associated
resources, and the number of fee waivers or exemptions that may be
granted for each form type. Over time, these factors may change
resulting in a lower calculated fee for certain requests. Additionally,
to improve transparency and account for the impact of investments in
technology, USCIS will consider incorporating a productivity measure
into the next fee rule that will capture the outcomes of these
investments on USCIS operations. Greater efficiency in processing,
resulting in reduced adjudication times or fewer resource requirements,
may also lead to fee reductions.
USCIS must ultimately implement a fee change that is based
primarily on cost. In instances where costs are shifted, USCIS must
ensure that the logic supporting these shifts is applied in a fair and
consistent manner. It would not be fair for USCIS to prevent an
immigration benefit request from realizing a legitimate fee decrease in
order to reduce costs to other applicants and petitioners. Shifting an
inordinate amount of costs to petitions filed by employers would also
be unfair. USCIS will continue to realize fee decreases as they occur.

C. Fee Waivers and Exemptions

Statutes and policy exempt certain classes of applicants and
petitioners from paying fees, and waive some fees for individuals who
demonstrate an inability to pay. USCIS received many comments
concerning the fee exemption and waiver process. Most commenters
thought that expansion of the immigration benefit requests available
for fee waivers would promote legal immigration. Some commenters noted
that the fee waiver process lacked standardization and that individuals
faced challenges when applying for fee waivers. Other commenters
suggested that USCIS offer fee waivers for immigration benefit requests
that are not currently waivable, or exempt additional classes of
applicants and petitioners from certain fees. Others suggested that
fees be raised to shift costs to particular kinds of applicants to
reduce increases or reduce current fees for certain other applicants.
Under the new fee structure, USCIS anticipated waiving fees for a
certain percentage of applicants. USCIS also provides for a number of
exemptions, where fees are not charged because a large percentage of
applicants would clearly be unable to pay. These exemptions include a
range of humanitarian and protective services, such as refugee and
asylum processing, and other related services. USCIS also anticipates
that it may allow a type of case to request a per case waiver of the
fees based on economic necessity, such as in the case of an earthquake,
hurricane, or other natural disaster affecting a localized population
of people who may file requests, although all others who file the same
kind of application must pay the fee.
To the extent not supported by appropriations, the cost of
providing free or reduced services must be transferred to all other
fee-paying applicants. That is one reason why USCIS is relatively
conservative with respect to intentionally transferring costs from one
applicant to others through fee waivers. However, various comments to
the proposed fee rule suggested expanding the range of applications and
petitions for which we would consider a fee waiver.
1. Asylee Benefits and Status Adjustment
USCIS received some comments requesting exemption from adjustment
of status fees based on having previously been granted asylum, citing
the general inability to pay of this population. USCIS currently allows
asylees to apply for a fee waiver when applying for adjustment of
status. 8 CFR 103.7(c)(5)(ii). See also new 8 CFR 103.7(c)(4)(iii).
Asylees are not required to pay filing fees for employment
authorization documents, providing them with a means to become
gainfully employed and earn wages to cover the cost of adjustment. 8
CFR 103.7(c). Granting an exemption to adjustment of status fees for
this class of immigrant will increase the fees paid by other
applicants. USCIS will continue to offer fee waivers to eligible asylee
adjustment of status applicants. USCIS will undertake a comprehensive
review of policies related to refugees and asylees; however, DHS is
providing no fee exemption in the final rule.
2. Expansion of Fee Waivers and Exemptions
A number of commenters requested that more immigration benefit
requests be available for fee waivers or be exempt from filing a fee.
Commenters suggested that a fee waiver be generally available for
travel documents, employment authorization documents, and the immigrant
visa, among other suggested forms.
a. Travel and Employment Authorization Documents and Immigrant Visas
The Immigration and Nationality Act, as amended, prohibits DHS, the
Department of State (DOS), and immigration judges from admitting or
granting adjustment of status to permanent resident to any alien who is
likely to become a public charge at any time. See INA section
212(a)(4), 8 U.S.C. 1182(a)(4). In addition, applicants and petitioners
are required to complete affidavits of support declaring that the
recipients of certain benefits will be self-supported (or supported by
the petitioner) and will not require public funding for support. This
need to prove a certain level of financial wherewithal in order to
qualify for a certain benefit would be incongruous with the ability to
extend fee waiver authority to those benefit requests. A fee waiver
could conflict with the requirement that an applicant or beneficiary be
eligible for the service requested.
DHS has expanded fee waivers and exemptions to additional
immigration benefit requests and classes of applicant over the last few
years. See, for example, Adjustment of Status to Lawful Permanent
Resident for Aliens in T or U Nonimmigrant Status, 73 FR 75540 (Dec.
12, 2008) (allowing a fee waiver for Form I-485 and requests for
waivers of inadmissibility). In this final rule, DHS has authorized the
USCIS Director 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). New 8 CFR 103.7(d). USCIS
believes that these adjustments will ensure that fee waivers are
applied in a fair and consistent manner, that aliens who are admitted
into the United States will not become public charges, and that USCIS
will not shift an unreasonable amount of costs to other fee-paying

[[Page 58974]]

applicants to recover funding lost due to fee waivers.
DHS has decided not to authorize fee waivers where such a waiver is
inconsistent with the benefit requested. For example, several
commenters suggested that USCIS should consider allowing fee waivers
for reentry permits, refugee travel documents, and advance parole when
an alien wants to travel abroad. In essence, this argument suggests
that although the applicant is prepared to incur the cost of traveling
internationally, USCIS should consider waiving the application fee and
instead transfer that cost to others. Expanding fee waivers into such
areas moves away from clear economic necessity to merely choosing to
provide one applicant with an advantage over another.
A number of commenters suggested, however, that USCIS allow fee
waiver requests for Application for Travel Document, Form I-131, in
cases of humanitarian parole. DHS's experience with the 2010 Haitian
earthquake relief efforts has shown that many recipients of
humanitarian parole are worthy of consideration of a fee waiver. DHS
agrees that some applicants could be of limited means and the fee may
be particularly burdensome to this population. Thus, as suggested by
the commenters, DHS has decided to revise the final rule to add
requests for humanitarian parole to the list of forms that are eligible
for a fee waiver upon a showing of the inability to pay. See 8 CFR
103.7(c)(3)(iv). In addition, DHS encourages those who believe that
they have a sufficiently sympathetic case or group of cases in any type
of benefit request to submit a request to their USCIS local office for
a waiver under 8 CFR 103.7(d).
b. Waiver Eligibility for Notices of Appeal or Motions
DHS is adding a provision to the fee for the Notice of Appeal or
Motion, Form I-290B, to provide that the fee to file an appeal or
motion to reopen following a denial of an immigration benefit request
that is exempt from a fee or the fee was waived may be waived by USCIS
upon a showing by the applicant or petitioner of inability to pay. See
New 8 CFR 103.7(b)(1)(i)(M)(v)(c)(ii)(3)(vi). DHS has made several
immigration benefit requests exempt from fees due to humanitarian or
other considerations. As a result of comments expressing concern about
the cost of appeals, DHS has decided that it is appropriate to allow
the applicant or petitioner who received a fee exemption or was granted
a fee waiver for the underlying application or petition to request that
the fee to appeal a denial of such form be waived. DHS decided that it
was not appropriate to exempt all appeal and motion fees for denials of
fee exempt requests because fee exemptions are provided based on a
number of considerations, and a fee waiver is a decision based on
financial status. DHS believes it is appropriate to provide that the
fees may be waived in the case of financial hardship.
c. Military Naturalizations
Similarly, DHS is also adding a provision to exempt members or
veterans of the U.S. Armed Forces from paying the fee for Request for
Hearing on a Decision in Naturalization Proceedings, Form N-336. See
New 8 CFR 103.7(b)(1)(WW). These individuals are currently exempt from
paying the Application for Naturalization, Form N-400, fee. As a
result, those members or veterans of the U.S. Armed Forces whose N-400s
have been denied will often file another Application for Naturalization
for free rather than file an appeal using the proper form (Form N-336)
to avoid the fee associated with that appeal. DHS is making this change
to correct this anomaly and to conform to the intent of the National
Defense Authorization Act of 2004, which provides for free
naturalization for military members. See INA section 328(b), 8 U.S.C.
1439(b)(4). DHS is also providing that members of the military are
exempt from paying the fee for an Application for Certificate of
Citizenship, Form N-600, to conform to the same intent. See New 8 CFR
103.7(b)(1)(i)(AAA).
d. Arrival-Departure Records
Several commenters suggested allowing a fee waiver for an
Application for Replacement/Initial Nonimmigrant Arrival-Departure
Document, Form I-102, when filed by a refugee, asylee, a victim of
trafficking, and others whose immigration status is based on
humanitarian grounds. USCIS does provide initial documentation to such
individuals without additional charge. Fees are currently charged only
to replace a document or to change a document where the individual
changes his or her name. 8 CFR 103.7(b)(1)(H). USCIS does not believe
that expanding fee waivers to such replacements is an appropriate cost
transference to other applicants. Hardship cases may submit a request
to their local office for a fee waiver under 8 CFR 103.7(d). No changes
have been made to the rule as a result of these comments.
3. Standardization of the Fee Waiver Process
Some commenters cited difficulty in navigating the fee waiver
process. USCIS agrees that the fee waiver process would benefit from
standardization. DHS has revised 8 CFR 103.7(c) to be easier to read,
understand, and follow in order to bring clarity and consistency to the
fee waiver process. In addition, USCIS has proposed a new form to
facilitate the fee waiver process--Request for an Individual Fee
Waiver, Form I-912. See Agency Information Collection Activities: Form
I-912; New Information Collection; Comment Request, 75 FR 40846 (July
14, 2010). USCIS consulted with, and received valuable input from,
stakeholders and community-based organizations in developing Form I-
912. Form I-912 was available for public comment at www.regulations.gov
until September 13, 2010. The new form will clearly outline the
requirements and documentation necessary to support a request for a fee
waiver. This form can be used to submit fee waiver requests for
eligible applications, petitions, and biometric services. USCIS intends
to make it easier to request a fee waiver by regulating this process
and expects to finalize Form I-912 promptly.
4. Commonwealth of the Northern Mariana Islands (CNMI) Transitional
Worker
One commenter requested a reduction in fees or a fee waiver for the
adjustment of status of family members within the two-year transition
period of the implementation of the Consolidated Natural Resources Act
of 2008, Public Law 110-229, 122 Stat. 754 (2008).
Fee waivers are not generally available for employment-based
immigration benefit requests. Due to the unique circumstances present
in the CNMI, however, DHS published an interim rule that provided for a
separate Form I-129 called the I-129CW, Petition for a Nonimmigrant
Worker in the CNMI, and provided in that rule that USCIS adjudicators
may waive the fee for Form I-129CW in certain circumstances if the
petitioner is able to show inability to pay. See 8 CFR 103.7(c)(5)(i),
Commonwealth of the Northern Mariana Islands Transitional Worker
Classification, and 74 FR 55094 (Oct. 27, 2009). DHS has also included
that waiver authority in this rule. See 8 CFR 103.7(b)(1)(i)(J); 8 CFR
103.7(c)(3)(iii). That authority will not take effect, however, until
DHS has considered comments on the interim rule and published a final
rule. Thus, the comment on fee treatment specific

[[Page 58975]]

to the CNMI has been entered into the docket of that rule, and will be
considered in drafting that final rule as well as other rules that will
implement the CNRA. Nevertheless, due to the inherent inconsistency
between sponsoring an alien for employment and being unable to pay the
requisite fee for that sponsorship, USCIS expects that the situations
when an employer would adequately demonstrate an inability to pay will
be extremely limited.

D. Naturalization

USCIS received some comments suggesting that the naturalization fee
be raised to an arbitrarily higher amount to reflect the value of U.S.
citizenship.
Some commenters praised USCIS for not increasing the fee for
naturalization, while other commenters requested that the fee be
lowered even more, citing the fee as a deterrent to naturalization.
USCIS recognizes the importance of immigrant integration and seeks to
promote citizenship. At the same time, USCIS must balance costs and
ensure that applicants and petitioners are not burdened with excessive
surcharges and subsidies. Additional reductions to the naturalization
fee would result in increases to other immigration benefit fees;
therefore USCIS will keep the fee at its current level of $595.
Accordingly, DHS has determined that the fee for Form N-400,
Application for Naturalization, will remain at its current level of
$595, even though this fee should have increased under the fee rule
methodology.
A few commenters questioned the increase to Forms N-600/600K,
Applications for Certificates of Citizenship. The commenters contended
that in the case of children, USCIS will have already performed the
bulk of the adjudicative work for these applications when USCIS
processes the parent's Application for Naturalization. Commenters
stated that the N-600 requires very little adjudicative time to
process. While some applications may be simple, the type of research
required for each applicant may be complex and the level of research
required will vary based on the individual circumstances. USCIS is
required to establish whether the Application for Naturalization was
appropriately granted and the time required to research and verify the
validity of that application requires significant resources. In
addition, this application is not limited to those eligible due to a
parent's naturalization, and cases involving derivative acquisition of
citizenship can sometimes be very complex. If USCIS were to freeze this
fee just as it did the N-400 fee, this change would force other fee-
paying applicants and petitioners to subsidize the cost of processing
Applications for a Certificate of Citizenship. We do not believe that
such a result is justified here.
DHS has decided to make one change to the fee for Forms N-336 and
N-600. DHS is modifying the fee for a Request for a Hearing on a
Decision in Naturalization Proceedings (Under Section 336 of the INA),
and an Application for Certification of Citizenship, Form N-600, to
provide that there is no fee for such requests from a member or veteran
of the military. See New 8 CFR 103.7(b)(1)(i)(W) and (AAA). USCIS is
precluded by law from collecting a fee from members of the military for
an Application for Naturalization under sections 328 and 329 of the
INA. DHS has determined that it is in keeping with the Congressional
intent in passage of sections 328 and 329 to show a preference to
members and veterans of the military in similar proceedings, thus it is
appropriate that these requests for a certificate if citizenship also
be permitted without fee.

E. Improve Service and Reduce Inefficiencies

1. Service Improvement and Fees
Many commenters noted lengthy waiting times to process immigration
benefit requests and highlighted the need to improve overall customer
service. These comments suggested that, regardless of whether the
proposed fees were justified, applicants and petitioners should not be
asked to pay the full fee increase until USCIS improves service. Others
suggested that, even if fees were increased before service level
improvements were made, there should be detailed commitments to service
level improvements to ensure that increased revenues are used to
improve service.
Some comments stated that USCIS has increased fees before with the
promise of improved services, but never fully delivered on that
promise. As outlined in the proposed rule and supporting documentation,
USCIS delivered nearly all of the promised processing time performance
and deployed most of the projects funded through resource enhancements
in the 2008/2009 fee rule. 75 FR 33445, 33451-33453. USCIS is firmly
committed to continue to improve operations and service, particularly
as business transformation is deployed over the next five years.
Some commenters asserted that USCIS had not improved service since
implementation of the previous fee rule, which went into effect on July
30, 2007. DHS disagrees. USCIS continues to work on service
improvements. USCIS made substantial progress towards achieving
processing goals over the FY 2008/2009 biennial period. For example:
USCIS processed nearly 1.2 million naturalization requests
in FY 2008, 56 percent more than 2007. As of June 2010, there were
approximately 299,000 naturalizations cases pending--one of the lowest
levels in the recent history of USCIS. A surge response plan
implemented in FY 2008 enabled USCIS to meet nearly all FY 2008/2009
fee rule processing time reduction goals by the end of FY 2009.
USCIS and the Federal Bureau of Investigation (FBI)
effectively eliminated the National Name Check Program (NNCP) backlog.
NNCP now is now able to complete 98 percent of name check requests
submitted by USCIS within 30 days, and the remaining 2 percent within
90 days.
USCIS has implemented electronic adjudication of some
cases to help staff focus attention on more complex cases where
discrepancies have been found.
USCIS is transitioning to a new U.S. Department of the
Treasury lockbox provider and away from dispersed collection points to
improve intake operations and the control and timing of fee deposits.
Process improvements implemented over the past several years, as
well as projected productivity increases, are taken into account in the
current fee review, keeping fees lower than they might otherwise have
been. Future productivity enhancements are expected to produce lower
costs per unit that will be reflected in fee adjustments.
Other commenters recommended that USCIS conduct studies to analyze
processing times at different locations and shift work to locations
that have demonstrated efficiency in completing the work. USCIS agrees
that it is important to distribute work to account for workload and
productivity levels. USCIS continually monitors performance at its
locations and analyzes resources to ensure that its Field Offices and
Service Centers have the capacity to process immigration benefit
requests in a timely manner. USCIS has implemented ``bi-
specialization'' of forms at its Service Centers, which aligns the
processing of most forms at one of two pairs of Service Centers, such
that any individual form subject to bi-specialization is adjudicated at
only two of the four regional Service Centers. This change increases
processing uniformity and allows the Service

[[Page 58976]]

Centers to improve proficiency in adjudications. USCIS is also shifting
certain tasks, such as intake, to centralized locations in order to
take advantage of economies of scale and develop expertise in
processing methods.
Some commenters requested that USCIS increase its ability to
receive different forms of payment. USCIS agrees with these comments
and has deployed credit card processing machines to all of its Field
Offices. Credit card payment is available for immigration benefit
requests submitted in-person. Some have suggested that USCIS expand
credit card payments to immigration benefit requests that are mailed to
USCIS, but USCIS believes that option could provide a path for fraud
and abuse. USCIS continues to explore ways to modernize and streamline
fee collection processes.
A number of commenters protested the increase in the Application to
Replace Permanent Resident Card, Form I-90. Some commenters offered
anecdotal evidence outlining multiple instances when a permanent
resident card was not delivered to the recipient. Commenters opined
that it was easier to pay the I-90 fee again, even though their cards
were not delivered, than to protest the lack of delivery of the cards.
In FY 2008, USCIS developed a secure mail delivery process referred to
as the Secure Mail Initiative (SMI) whereby re-entry permits and
refugee travel documents are delivered via the U.S. Postal Service
Priority (USPS) Mail. This change allows documents to be delivered by
USPS in two to three days with delivery confirmation. This year, the
SMI process was expanded to USCIS locations that receive and re-mail
undeliverable permanent resident cards and employment authorization
documents. Permanent resident cards not initially received by
recipients are processed using the SMI. However, USCIS agrees that
permanent resident card delivery deserves special consideration. USCIS
intends to deliver all permanent resident cards (initial deliveries and
re-deliveries) through SMI once revenue is deemed sufficient to fully
support the initiative.
Ultimately, USCIS fees are based on the processing costs for
immigration benefit requests. Any structural deficit between costs and
fees could create and accelerate the growth of backlogs and deteriorate
service levels. The proposed fee adjustments and this final rule
reflect this concern. Thus, while USCIS addresses the spirit of the
comments by continually searching for ways to improve its service, no
specific changes are being made to the final rule to address these
comments.
2. Multiple Biometric Data Requests
A few commenters pointed to the fact that applicants or petitioners
must provide biometric data more than once if they file several
applications or petitions and their biometrics submitted for previous
requests has expired. Some commenters considered the expiration of
fingerprint submissions to be inefficient. Others suggested that it was
inefficient for USCIS to again request biometrics when they apply for
sequential benefit applications.
Biometrics (which include fingerprints and photographs) submitted
to USCIS are valid for 15 months. This validity period, in most cases,
provides sufficient time for an immigration benefit request to be
processed. USCIS utilizes the Biometrics Storage System and the
Benefits Biometric Storage System to store biometric data and 10-print
fingerprints, respectively. These systems allow USCIS to reuse and
resubmit biometrics as long as an immigration benefit request has been
adjudicated within the 15 month validity period. If there are
processing delays at USCIS, USCIS does not charge the applicant the
biometrics fee again if the 15 month validity period expires. When an
applicant later reapplies to renew a benefit or for another benefit,
the biometrics appointment is not simply an opportunity to re-take the
biometrics again; it is an opportunity to use biometrics to verify his
or her identity.
The biometrics fee covers costs associated with the use of the
collected biometrics to pay the cost of FBI and other background
checks. Thus, an applicant will pay the biometrics fee whenever he or
she files another immigration benefit request that requires the
collection, updating, or use of biometrics for background checks.
As USCIS transforms its systems to a more fully electronic
application process, biometrics will be stored and generally reused for
the purpose of the same and/or multiple benefit purposes. Consequently,
current operational practices in this area for most benefit types are
based primarily on pre-transformation business structures and
information systems. Future fee rules will take into account the
transformation program, and therefore no adjustments are made to this
final rule based on these comments. Biometric fees will continue to
balance the initial capture, reuse, identity verification, and anti-
fraud functions performed whenever an applicant or petitioner, or other
individual, is required to submit fingerprints.
3. Transformation
A number of commenters noted that USCIS should not increase fees
until business process reengineering takes place. Commenters stated
that USCIS should move from a primarily paper-based processing
environment to a web-based one. Many commenters called for simplified
processes and more electronic processing. Commenters also questioned
the management and viability of USCIS' current transformation program.
USCIS agrees that transitioning to electronic adjudication is an
important priority. USCIS is committed to improving the efficiency and
effectiveness of its immigration processing system and will dedicate
the funds and management attention necessary to complete this task.
Electronic filing is currently available for seven of the most common
benefit requests, as well as premium processing service requests. 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, USCIS has committed to ensuring that at least 25% of
applications will be electronically filed and adjudicated using the new
transformed integrated operating environment by FY 2012.
Transforming the paper-based USCIS adjudication process is crucial
to fundamentally improving USCIS response to evolving applicant and
petitioner needs and modern immigration demands. USCIS transformation
is an employee-driven effort to redefine business processes and systems
and create a more modern, secure, and customer-focused organization.
For benefit seekers, this means 24-7 online account access and real-
time updates. For employees and interagency partners, it means more
efficient case management and improved information sharing. For the
American public, it means greater national security due to enhanced
risk and fraud detection capabilities.
Ultimately, transformation will fundamentally alter the way USCIS
does business and will advance it from a paper-based organization to a
more efficient government component, capable of meeting 21st century
immigration demands. However, USCIS transformation will not happen
overnight. Changes will be implemented over the next five years, and
stakeholder input is at the forefront of this process. Feedback from
employees, inter-governmental partners, and the

[[Page 58977]]

immigration community is critical to the success of the transformation
program.
The transformation solution will be implemented in two phases that
follow the natural progression of the immigration lifecycle, beginning
with nonimmigrant benefits. The first phase, which is scheduled to
deploy beginning in the fourth quarter of FY 2011, will shift USCIS
from application-based services to applicant- and petitioner-based
electronic services for nonimmigrant benefits. The second phase, which
is scheduled to deploy from calendar years 2012 to 2014, will apply the
new capabilities progressively to the remaining USCIS benefits in three
distinct releases, starting with immigrant benefits, followed by
humanitarian benefits, and ending with citizenship. As lines of
business are transformed, instead of using paper forms and manually
transmitting information, applicants and petitioners will primarily
apply for benefits using online accounts--similar to the way most banks
use electronic accounts today. Data will be transmitted electronically
and USCIS employees will view the data in a streamlined automated
environment. Cases will automatically be assessed for risk and assigned
to appropriate adjudicators. Office caseloads will be managed according
to volume, allowing supervisors and managers the ability to make
informed decisions and balance workloads across USCIS. Adjudicators
will have access to complete case records in user-friendly, electronic
formats, allowing them to make timely, accurate, ``one-touch
adjudication'' decisions.
4. Increases Relative to Time
Some commenters suggested that some fees were excessive for certain
benefit requests relative to the time it takes to process the requests.
Commenters also recommended that USCIS consider reducing fees for
variations of a form that may take less time to process. For example,
one commenter suggested that it may take less time to process an
Immigrant Petition for Alien Worker, Form I-140, when it is accompanied
by a labor certification than at other times. DHS agrees with the
concerns of the commenter in principle, but the current modeling and
data do not support the detailed analysis that is necessary to drive
these distinctions into the activity-based costs. In the future, USCIS
intends to use its transformed systems to perform a more in-depth
analysis of immigration benefit requests, eventually examining the fee
structure and processing costs of each of the various benefit requests
that are filed regardless of the form used, such as the multiple
employee types petitioned for on Forms I-140 and I-129, Petitions for
Immigrant and Nonimmigrant Workers. USCIS does not possess the data
gathering and reporting capacity to support such analysis and this type
of fee system at this time.
USCIS also understands the commenters' desire to have their
requests processed as quickly as possible and that some USCIS-
administered benefits are subject to more processing delays than
others. In general, delays do not factor into the calculation of fees,
except as they relate to the complexity of the adjudication. The
primary basis of the USCIS fee model is administrative complexity,
which is the amount of work necessary to process a particular kind of
application or petition (identified as ``Make Determination'' activity
in the proposed rule). The calculation also factors in other direct
costs, such as the cost of producing and delivering a document when
that is part of the processing of a particular benefit. In addition to
these costs, the fee calculation model factors in the full costs of
USCIS operations, including services provided to other applicants and
petitioners at no charge, overhead costs (e.g., office rent, equipment,
and supplies) associated with the adjudication of the immigration
benefit request, and other processing costs. These latter costs include
responding to inquiries from the public (``Inform the Public''
activity); immigration benefit request data capture and fee receipting
(``Intake'' activity); conducting background checks (``Conduct
Interagency Border Inspection System Checks'' activity); the
acquisition and creation of files (``Review Records'' activity);
preventing and detecting fraud (``Fraud Prevention and Detection''
activity); when applicable, producing and distributing secure cards
(``Issue Document'' activity); and electronically capturing biometrics
(fingerprint and photograph), background checks performed by the FBI,
or use of the collected biometrics to verify the identities of
applicants (``Capture Biometrics'' activity). Thus, no changes are made
in the final rule as a result of these comments.
5. Fee Refunds
Some commenters were opposed to the fee increase for the Notice of
Appeal or Motion, Form I-290B. Commenters thought that the fee, though
waivable, could hinder individuals and prevent them from receiving
benefits they deserve. They noted that the time involved in submitting
a fee waiver request jeopardized their chance of meeting the 30-day
filing deadline for an appeal. Commenters also expressed disappointment
in the appeals process in general, noting that it was particularly
burdensome for those who are attempting to, as they perceive it,
rectify an error made by USCIS. Commenters suggested that USCIS develop
a system to refund fees paid because of USCIS error. Multiple
commenters cited being required to pay for Form I-290B or the
Application for Action on an Approved Application or Petition, Form I-
824, due to USCIS error.
USCIS has in the past agreed with the findings of the USCIS
Ombudsman, who recommended developing more consistent and clear
procedures for processing motions to reopen and reconsider. See http://www.uscis.gov/USCIS/Office%20of%20Communications/Homepage/Ombudsman%20Liaison%20Unit/OLU%20Responses%20to%20Formal%20Recommendations/rec42_18aug09.pdf.
USCIS is also developing a fee refund process. The intent of that
process is to provide a simple, expeditious system to point out clear
administrative errors made by USCIS and to receive a rapid remedy from
USCIS mistakes. USCIS has undertaken an internal review of the fee
refund process, its associated internal procedural policy memo, and a
new fee refund form. The results of this review are planned for
inclusion in USCIS' next fee study.
Some commenters also mentioned the perceived risk in filing Forms
I-290B, noting that they may not be routed properly. In addition to the
aforementioned process changes, USCIS now accepts Form I-290B at its
lockbox facilities for applicants and petitioners filing an appeal or
motion concerning a decision made in a USCIS field office. Filing at a
lockbox facility provides individuals with a receipt and facilitates
enhanced case tracking for USCIS applicants and petitioners. Lockbox
use also ensures that the I-290B intake process is timely. DHS believes
this centralized filing and handling will alleviate the timing issues
that the commenters raised and that these actions and changes are
responsive to the comments, though no changes to the final rule were
made as a result of them.
DHS is adding one additional change to the fee for the Notice of
Appeal or Motion. Based on an analysis of the public policy objectives
and related legislation, DHS is providing that there is no fee for an
Iraqi or Afghan national who worked for or on behalf of the U.S.

[[Page 58978]]

Government in Iraq or Afghanistan to appeal a denial of a petition for
a special immigrant visa. The National Defense Authorization Act of
2008 provided that neither DOS nor DHS may collect any fee in
connection with an application for, or issuance of, a special immigrant
visa for an Iraqi or Afghan national who worked for or on behalf of the
U.S. Government in Iraq or Afghanistan. Section 1244 of the National
Defense Authorization Act, 2008, Public Law 110-181, 122 Stat. 3, as
amended by Public Law 110-242, 122 Stat. 1567 (Jan. 28, 2008). DHS
believes it is keeping with the language of that statute to also
provide an appeal of such an application for no charge. Thus, DHS has
changed the final rule to provide that when such a petition is denied,
the petitioner may appeal by filing a Notice of Appeal or Motion
without fee.
6. Customer Service and the Office of Public Engagement
Some commenters requested more access to USCIS to encourage a
constructive and efficient dialogue between the parties with the hopes
of significantly reducing overall processing times, helping identify
policy and process defects, resolving questions, and providing
corrections and clarifications on various immigration benefit requests.
Many commenters detailed customer service issues, and incidences of
poor customer service, with various USCIS offices. A number of
commenters believed that USCIS should not increase fees until customer
service improves.
USCIS is dedicated to ensuring that stakeholders are fully informed
of its programs and processes, and can provide input regarding USCIS
priorities, policies and programs, and assessing organizational
performance. USCIS seeks to build new partnerships and enhance existing
relationships with a broad range of stakeholders, including community-
based and faith-based organizations, state and local government
representatives, advocacy groups, and other stakeholders interested in
USCIS policies and operations. Such partnerships enable USCIS to
maintain a transparent and collaborative approach to policy making and
operations through information sharing, stakeholder feedback, and
engagement opportunities. USCIS hosts frequent engagements on a broad
range of issues, welcomes input on topics of concern from the
stakeholder community, and seeks to provide opportunities for
stakeholders to submit feedback to USCIS. The recently established
USCIS Office of Public Engagement (OPE) facilitates and coordinates
outreach and engagement and directs USCIS-wide dialogue with external
stakeholders.
USCIS is currently implementing a policy review to comprehensively
examine policy, guidance, and procedures. Collectively, we believe that
these actions are responsive to these comments. We have not revised
this final rule in response to the comments.

F. Premium Processing

Premium processing is a program by which a petitioner for a
nonimmigrant worker may pay an extra amount to ensure that the petition
will be processed in 15 days. The premium processing fee was
statutorily authorized in 2000 for employment-based applications and
petitions and was set at $1,000. See INA section 286(u), 8 U.S.C.
1356(u); 8 CFR 103.2(f); new 8 CFR 103.7(b)(1)(i)(QQ), and (e). Premium
processing is currently authorized for certain classifications filing a
Petition for a Nonimmigrant Worker, Form I-129, or an Immigrant
Petition for Alien Worker, Form I-140. See new 8 CFR
103.7(b)(1)(i)(RR), and (e); USCIS Web site at www.uscis.gov. For
example, petitioners would pay the $580 fee for a Form I-140 under this
rule, plus $1,225 for premium processing.
Some commenters suggested that premium processing be expanded to
other immigration benefit requests, while other commenters argued
against an increase to the premium processing fee. Some commenters
stated that premium processing is essentially mandatory, rather than
optional, to ensure the timely and efficient processing of their
employment-based petitions.
1. Expansion of Premium Processing Service
The comments suggesting the expansion of premium processing are
similar to other comments that believe fee increases generally will
result in better service. USCIS understands the desire of the
commenters to be able to obtain faster processing of all immigration
benefit requests. Such comments indicate that at least some are willing
to pay substantially more if USCIS can guarantee faster service.
USCIS has considered expanding premium processing to other
immigration benefit requests beyond those currently allowed in
conjunction with this fee rule. In future reviews, USCIS will perform
the necessary analysis to identify candidates for faster processing
guarantees, while also considering operational limitations that may
prohibit expansion of premium processing into certain areas. USCIS will
also need to determine the appropriate amount to charge for each
benefit if permitted, and the logistical requirements for implementing
expanded premium services. USCIS has not, to date, analyzed the effect
of premium processing on specific application and petition types, but
plans to consider doing so in the future. Premium processing actually
moves applicants and petitioners to the head of the line for
adjudication and the additional fee permits the devotion of specific
resources to resolving that application or petition. No change is made
in this rule as a result of these comments. Nevertheless, USCIS
believes that this issue does justify more analysis for consideration
in future fee reviews.
2. Adjustment to Premium Processing Fee
Some commenters disagreed with an increase to the premium
processing fee. Many cited delays in the process that required them to
file a request for premium processing to ensure receipt of a visa in a
reasonable amount of time. Other commenters mentioned what they
perceived to be frivolous RFEs that contribute to delays in processing
these visas. For many commenters, premium processing increased the
likelihood of their success in managing the RFE process and the visa
process in general. The commenters stated that an increase to the
premium processing fee, when multiplied by the number of aliens for
whom they may petition, would be particularly burdensome.
USCIS is striving to increase its efficiency in all visa processing
and, at this time, O and P visa processing. Efficiencies in these areas
will alleviate the need for premium processing services and ensure that
applicants and petitioners can expect to procure these visas in a
timely manner. USCIS recognizes the concerns of the commenters and has
made the 14-day adjudication processing time a goal for O and P visa
petitions. USCIS is meeting that goal at both Service Centers that
process these petitions.
In addition to improving processing times, USCIS has also
undertaken several initiatives to improve the quality of O and P visa
adjudication. An RFE project is being developed at the Service Centers
to revise current RFE standard operating procedures to facilitate
consistent, relevant, concise and clear RFE templates. The O and P visa
classifications are a part of the first phase of this project. USCIS is
also reviewing the Adjudicator's Field Manual, existing policy
guidance, and training materials to identify focal

[[Page 58979]]

points for additional guidance and training for O and P visa
processing. Through these efforts, USCIS hopes to reduce the number of
premium processing service requests related to these visa categories.
The percent change in the Consumer Price Index for All Urban
Consumers (CPI-U) was used to adjust the premium processing fee.
Between June 2001, when Congress established the fee, and June 2010,
the CPI-U increased by 22.45%. When that percentage increase is applied
to the current premium processing fee of $1,000, the adjusted premium
processing fee is $1,224 ($1,225 when rounded to the nearest $5). See
INA section 286(u), 8 U.S.C. 1356(u). This amount is the same fee in
the proposed rule and represents the final premium processing fee.
Adjusting this fee by the Consumer Price Index is statutorily
permissible and is a reasonable method for accounting for increases in
costs for this service. Since Congress enacted this original fee level
(almost ten years ago), labor and resource costs have increased
significantly. The revenues that USCIS derives from premium processing
exceed the marginal costs for providing such services. Fees from this
activity contribute to significant system and business process
modernization which will benefit all applicants and petitioners.
Therefore, DHS has increased the fee in this rule as proposed.

G. New Fees and Forms

1. Immigrant Visa DHS Domestic Processing Fee
Several commenters questioned the appropriateness and the amount of
work required to justify the proposed immigrant visa processing fee.
Another commenter suggested that fee waivers should be available for
immigrant visas, an issue which is addressed elsewhere in this
preamble. One commenter questioned how USCIS plans to implement this
new fee, including when and where the fee would be payable, such as
when the immigrant visa petition is filed with USCIS, with the
immigrant visa fee payable to DOS, at the time of immigrant visa
issuance, at the port of entry (POE) prior to admission, or by mail
after admission is completed. Due to staffing and logistical issues and
convenience for the applicant, USCIS has requested that DOS collect the
fee on USCIS's behalf. Under the Economy Act, 31 U.S.C. 1535, USCIS
will reimburse DOS for the costs DOS incurs in performing this service
on behalf of USCIS. Still another commenter asked how the new fee
impacts immigrant visa demand.
USCIS has not conducted an analysis to determine the potential
impact on visa demand, but DHS has determined that, irrespective of any
potential effect, USCIS should no longer shift its costs of providing
immigrant visas to those paying fees for other immigration benefits.
Based on current projections, USCIS expects this fee to generate $74.2
million during the next fiscal year, a sum that otherwise would be
charged as overhead to all other fee-paying applicants and petitioners.
While the new fee for processing an immigrant visa admission packet
is mostly for an internal recordkeeping function based on the transfer
of documents from one government entity to another, the relatively
limited nature of this activity does not exempt it from cost recovery
through a unique fee. Costs include the initial creation of the alien's
``A-File'' and production and shipment of the permanent resident card.
These costs are currently borne by USCIS, as the DHS agency
administratively responsible for the assigned task, and charged to all
fee paying applicants and petitioners as an overhead expense.
Accordingly, DHS has decided that these are costs that are better
charged directly and recovered from immigrants as an appropriate
immigrant visa processing fee.
A commenter suggested that the imposition of a fee for the
processing of the immigrant visa packet incorrectly amounted to funds
being paid to USCIS for the consular officer's visa approval decision
and/or the U.S. Customs and Border Protection (CBP) officer's lawful
permanent residence admission decision to become effective. DHS
disagrees. The immigrant visa domestic processing fee recovers the
costs of USCIS staff time to process, file, and maintain the immigrant
visa package and the cost of producing the permanent resident card.
Although the labor or effort may seem inconsequential, USCIS processes
approximately 36,000 of these requests per month, totaling almost
430,000 visa applications, or $70,950,000, annually. The volume of this
activity warrants a significant amount of dedicated USCIS resources.
The costs for these resources are currently charged to all fee payers.
DHS believes that this is an undue burden for other fee-paying
applicants and petitioners and is, therefore, shifting the cost of
processing immigrant visas to the immigrant visa recipients who are the
beneficiaries of this service. Some commenters lauded the
implementation of the additional fees, recognizing that these fees
remove some of the cost burden from fee-paying applicants. This new fee
does not alter the costs of, or reimburse for, any activity by CBP. No
changes to the final rule were made as a result of these comments.
2. Civil Surgeon Designation Fee and Form
Some commenters requested that military civil surgeons be exempt
from the new Civil Surgeon Designation Fee. DHS agrees. DHS is
exempting physicians serving in the military or employed by the U.S.
government from the fee required of civil surgeons if performing
examinations for members or veterans of the military, or their
dependents, who receive care at a U.S. military, Department of Veterans
Affairs, or U.S. government facility in the United States. See New 8
CFR 103.7(b)(1)(i)(SS).
Another commenter asked clarifying questions concerning military
civil surgeons who must move due to reassignment. Specifically, the
commenter was concerned that civil surgeons who must move frequently
due to military orders would be subject to the fee on multiple
occasions. DHS recognizes that any civil surgeon, whether military or
civilian, may move to a different jurisdiction. Any civil surgeon
changing his or her address will be required to update USCIS on the
change, and include evidence of continued eligibility to serve as a
civil surgeon by submitting this information to their local field
office so the civil surgeon roster can be updated accordingly. At this
time, USCIS does not intend to charge a fee to update an address if a
civil surgeon has already been designated appropriately.
An additional concern expressed about the civil surgeon designation
fee was its impact on the availability of civil surgeons throughout the
United States. In particular, a commenter indicated that few civil
surgeons are available in certain parts of the country and that the new
fee will make it more difficult for individuals to receive the
designation. The commenter also indicated that this result will, in
turn, ultimately prohibit eligible applicants for immigration benefits
from receiving the necessary medical clearance and applying for their
benefits.
While DHS is aware of the fact that the availability of civil
surgeons in some areas of the country is greater than in others, it
does not believe that this discrepancy and the imposition of the new
fee denies applicants the opportunity to apply for immigration
benefits. Based on the existing roster of civil surgeons, the number of
civil surgeons in any given area appears to

[[Page 58980]]

correlate favorably with the projected number of potential immigrants
needing medical examinations. USCIS is always interested in increasing
the number of civil surgeons in areas of low availability in an effort
to reduce the potential cost impact of this statutorily-required exam.
While access to civil surgeons in rural areas may be limited, the
commenter has only speculated that a new fee would preclude reasonable
access to civil surgeons. DHS is not aware of evidence that supports
the commenter's speculation and the commenter did not provide any
additional data to support these claims.
DHS has a responsibility to ensure the integrity of the civil
surgeon program and has set a fee that recovers the operational costs
for this program, the appropriate overhead and the appropriate spread
of policy decision costs. Without this fee, work performed to designate
and maintain the civil surgeon roster would continue to be borne by all
fee-paying applicants and petitioners. Requiring physicians to pay for
this designation shifts the costs from the general applicant population
to the physicians who perform the examinations and who may derive
financial benefit (such as a fee) from such examinations. No changes to
the final rule were made as a result of these comments.
3. EB-5 Regional Center Designation Fee and Form
Most EB-5 related comments acknowledged the need for a regional
center designation fee. The commenters expressed support for the fee,
while also noting the need for improvements in processing times,
collaborative efforts, and regulatory development. USCIS continues to
strive for improved processing times, has committed to improved
stakeholder communications with quarterly stakeholder meetings, and
will pursue regulatory development when practical.
Several commenters, referencing the supporting documentation,
suggested that DHS calculated the Regional Center Amendment fee in
violation of OMB Circular A-25. These comments suggested that the DHS
Supporting Statement: Application for Regional Center under the
Immigrant Investor Pilot Program, Form I-924, and Form I-924A (OMB No.
1615-NEW), Docket No. USCIS-2009-0033-0003-0006, show 40 hours to
adjudicate an initial designation and only 10 hours to adjudicate an
amendment. DHS disagrees with the commenters. The time burden outlined
in the supporting statement is an estimate of the amount of time it
takes for filers to complete the form, not the time it takes to
adjudicate the form. This review, and documentation required by the
Paperwork Reduction Act, are discussed elsewhere in this preamble. A
review of a substantial number of recently filed amendment requests by
previously designated regional centers reveals that most amendments
involve a diverse variety of adjudicative issues, such as changes in
geographic scope, organizational structure, capital investment
projects, and exemplar Forms I-526, Immigrant Petition by Alien
Entrepreneur. No changes were made to the final rule as a result of
these comments.
Another commenter mentioned the proposed amendment to 8 CFR
204.6(m)(6), which would provide for an annual reporting requirement
for Regional Centers in connection with the USCIS authority to
terminate a regional center's designation. The commenter suggested that
the language ``no longer serves the purpose of promoting economic
growth,'' was vague, and in need of more specifics regarding practices
that are either prohibited or required in order for the regional center
to continue to ``serve the purpose of promoting economic growth.'' The
commenter recommended that USCIS adopt a rule to ensure ongoing
regional center compliance, such as termination proceedings if a
regional center does not file a single Immigrant Petition by Alien
Entrepreneur within a fiscal year.
DHS notes that the regulation at 8 CFR 204.6(m)(6) already provides
a means to terminate a regional center if the regional center ``no
longer serves the purpose'' of the program. DHS believes that the
potential reasons for the termination of a regional center extend
beyond inactivity on the part of a regional center. This regulation
currently provides for a process of notice and rebuttal. The amended
regulatory language leaves this process intact. Regional centers have
been and will be provided with ample opportunity to overcome the
reasons for termination of the regional center under this process. DHS
is exploring means by which information regarding termination
proceedings may be shared, and will consider making this information
available in the annual disclosure report. DHS is making no changes in
the final rule as a result of this comment.
A number of comments mentioned statutory, regulatory, and policy-
oriented issues that were outside the scope of the proposed rule, like
job creation requirements for the Immigrant Investor Pilot Program. The
final rule does not address comments seeking changes in United States
statutes, changes in regulations or immigration benefits unrelated to,
not reasonably related to the fee structure or impacting the fee
structure, and not addressed by the proposed rule, changes in
procedures of other components within DHS or other agencies, or the
resolution of any other issues not within the scope of the rulemaking
or the authority of DHS.

H. Methods Used To Determine Fee Amounts

A number of comments questioned or requested additional information
on the methodology used to determine USCIS costs. Others questioned the
costs and calculations provided in the proposed rule, while some
requested an invoice that details the costs of services. USCIS has made
no changes to the final rule as a result of these comments.
Detailed information on the fee review methodology and the cost
components and calculations was provided in the proposed rule and
remains posted in the docket of this rule at www.regulations.gov. This
information will also be provided directly by USCIS upon request. The
underlying supporting elements, such as independent legal requirements,
the General Schedule pay scales, or travel reimbursement rates, are all
publicly available. In the proposed rule, USCIS offered an opportunity
to review the functioning of the computerized cost model used by USCIS
through onsite viewing on its computer system. While USCIS cannot
provide complete access to the computer software purchased under
license, the USCIS fee determination is, within reason, an open
process. A summary of how calculations were made and results achieved
was available for review upon request. USCIS did not receive any
requests to access the modeling program. We have made no changes to the
final rule as a result of these comments.
1. Reductions to USCIS Costs
A number of commenters suggested that USCIS reduce its costs before
implementing a fee increase. USCIS agrees that cost savings are an
important part of its fee evaluation. The FY 2010 enacted appropriation
and the FY 2011 President's budget request provided significant
appropriations ($55 million in FY 2010 and $238 million in FY 2011) to
reduce surcharges placed on fee-paying applicants and petitioners for
programs related to refugee and asylum benefits. The FY 2011
appropriations request also includes the cost of the Office of
Citizenship and the SAVE programs--two programs previously

[[Page 58981]]

funded by immigration benefit fees. The President's total appropriation
request for USCIS was more than $385 million.
In addition to removing almost 10% of costs from the fee structure,
at the beginning of FY 2010, USCIS implemented approximately $160
million in operational budget cuts. USCIS has reduced about 170 federal
positions, executed a number of hiring freezes, and significantly
reduced overtime spending. All USCIS offices faced an across-the-board
reduction to general expenses and certain contracts were reduced due to
lower workloads. DHS believes that these actions to reduce costs and
fee burdens on fee-funded programs have been significant, and fully
expects USCIS to continue to focus on cost reduction and efficiency in
future fee reviews. No changes have been made to the final rule as a
result of these comments.
2. Appropriations
Many commenters commended the Administration's request for
appropriated funding to eliminate surcharges. Some commenters stated
that USCIS should request even more appropriated funding to cover its
costs. Commenters suggested expanding the use of appropriated funds to
fraud-related activities, asylum and refugee services, infrastructure
improvements, overhead, and long-term investments. Other commenters
opined that taxpayers should not bear the burden of funding
immigration-related activities and strongly opposed the use of
appropriated funding for USCIS operational purposes. DHS is committed
to reducing surcharges through the use of appropriations and will
continue to consider such options that have the potential of providing
additional cost relief without undue burden on taxpayers.
Some commenters questioned the reliance by USCIS on appropriations
in cost estimates determined prior to the approval of those
appropriations. USCIS recognizes a certain level of uncertainty that is
created by the timing of the federal budget process and this fee rule
(if the congressional budget process for the fee rule's biennial period
was completed before the fee rule was finalized). Nonetheless, USCIS
must review its fees biennially and cannot delay necessary rulemaking
for the benefit of the appropriations process. DHS is well aware of the
impact of including appropriated funding in USCIS cost estimates and
USCIS has analyzed (included in the proposed rule) fee schedules under
a number of different appropriation scenarios to satisfy the
requirements of the Administrative Procedure Act. The various fee
schedules provided the public with the highest and lowest possible fees
based on the highest and lowest cost base.
Further, DHS statutory and regulatory reviews considered the
uncertainty of appropriations funding. DHS shares the commenters'
concerns and took steps to insulate the regulatory flexibility analysis
from understating impacts to small entities. To this end, as stated in
the proposed rule, DHS utilized fees calculated without appropriations
in the analysis, which illustrated the largest potential impact of the
fee increase on small entities. DHS has determined that the fee
schedule should continue to be based on the President's requested
appropriation. USCIS will make necessary operational changes to
accommodate an appropriation that does not fulfill the President's
request. Accordingly, DHS makes no changes to the final rule as a
result of these comments.
I. Other Comments
A number of comments were not linked to the substance of the
proposed rule and criticized the rule for not addressing other
immigration law issues. Some commenters addressed issues related to
comprehensive legislative immigration reform. Others suggested changes
to the substantive regulations implementing the immigration laws by
USCIS, CBP, U.S. Immigration and Customs Enforcement, and other
agencies that do not have an impact on the fee structure or amounts.
Some commenters expressed dissatisfaction with the visa allocation
process, which is established by the Congress, and outside of the scope
of DHS operations.
DHS cannot address comments seeking changes in United States
statutes, changes in regulations or immigration benefits unrelated to
the proposed rule, changes in procedures of other components within the
Department of Homeland Security that are not linked to the fee schedule
or processes, or regulations of other agencies, or the resolution of
any other issues not within the authority of DHS. Although beyond this
scope, three comments are discussed below in order to clarify certain
issues.
1. Visa Allocation and Unused Visa Numbers
Several commenters expressed concern that USCIS would raise fees
during a time when many employment-based adjustment of status filers
are experiencing long waits for their visas. Although these long waits
are due to visa retrogression in oversubscribed categories, some
attributed it to USCIS processing inefficiencies and questioned a fee
hike in the face of such delays. Others attributed the long waits to
the mismanagement of the visa allocation and coordination process
between USCIS and DOS and noted that many numerically-limited visas
have gone unused.
The notion that USCIS processing inefficiencies contribute to the
long wait for visas appears unfounded, as there is currently an average
processing time of four months for an Application to Register Permanent
Residence or Adjust Status, Form I-485, for which visas remain
available. This timeframe meets the processing goal set forth in the
2008/2009 fee rule. See 72 FR 4888, 4893. Significant improvements have
also been made in the visa coordination process between DOS and USCIS.
USCIS and DOS confer monthly on pending visa demand, workload
capabilities, and forecasting of immigration trends. For example, if
USCIS analysis finds a period of low demand in a particular visa
preference category, DOS is able to respond by advancing the priority
dates rapidly to ensure that all allotted visas will be used in a
particular fiscal year. USCIS and DOS continue to consider ideas and
options to further improve the visa coordination process between the
two and reduce the occurrence of visa retrogression or future unused
numbers.
Some commenters suggested that USCIS recapture unused visa numbers
from recent years as a way to reduce the backlog of pending adjustment
of status cases. By recapturing these numbers, it was suggested that
visa priority cut-off dates would advance, allowing for many new
filings and thereby increasing USCIS revenue without a need to raise
fees. However, the authority to recapture any unused visa numbers from
previous years resides with Congress and is not available to USCIS as
an administrative remedy. See INA section 201, 8 U.S.C. 1151. Moreover,
increasing the number of filings concurrently increases the amount of
work to be performed, thus consuming the fees generated. Even if
legally possible, this solution would not be practical.
Due to the long wait for visa numbers in particular categories,
several commenters disagreed with a fee hike as they noted costs would
rise for intending immigrants either seeking to maintain their status
in the United States or receiving ongoing interim benefits while
awaiting visa numbers. It is noted, however, that U.S. employers may
not recoup the costs required to file

[[Page 58982]]

for a nonimmigrant employee or his/her extension or change of status;
thus, the costs are borne by the employer and not the intending
immigrant seeking to maintain his/her status. Furthermore, as of the
fee structure instituted in 2007, applicants for adjustment of status
who request advance parole and employment authorization are exempt from
payment of additional fees while their Forms I-485 are pending. Thus,
this is not a valid concern for these individuals.
USCIS acknowledges that employment-based Form I-485 filers who
filed under the old fee structure, prior to August 18, 2007, must
continue to pay fees associated with interim benefits. While USCIS has
no control over the Department of State's allocation of visa numbers,
nor over the yearly visa numerical limits as established by Congress,
it has nonetheless been sympathetic to those who have pending
adjustment of status applications in categories experiencing extreme
visa retrogression. To alleviate the filing burden on these individuals
and associated costs, USCIS initiated a policy in June 2008 whereby an
EAD would have a two-year validity period for these affected
individuals, effectively reducing ongoing costs for the benefit by an
estimated 50 percent. USCIS is further adopting a policy whereby those
same affected individuals may receive an advance parole document with a
two-year validity period to further alleviate their filing burdens. The
number of filers affected by FY 2007 visa retrogression continues to
decline as visa numbers are allocated.
One commenter suggested the creation of a variable fee structure
depending on the wait for a visa number. As wait times fluctuate due to
a myriad of factors, including visa number restrictions, per-country
limits, and changes in demand, it would be impractical to adopt this
suggestion as there would be no way to project what the future delays
and fees would be.
2. Increased Periods of Validity for Travel and Employment Documents
A number of commenters requested that USCIS offer multi-year
employment authorization documents (Form I-765) and travel documents
(Form I-131). Commenters cited the financial burden of submitting
multiple applications for both services while their adjustment of
status cases are pending. Some commenters also mentioned the
administrative burden created when trying to time the filing of the
documents so as not to produce instances of overlapping validity.
USCIS has no interest in artificially limiting the validity periods
of these documents. In many instances, these validity periods are
directly related to the length of the underlying status which created
eligibility for these associated benefits. For example, a permanent
resident who remains outside the United States for more than one year
may be questioned on his or her return based on the validity of his or
her Permanent Resident Card, Form I-551. 8 CFR 211.3. If that
individual applied for a reentry permit before departure from the
foreign country, and the application is granted, then the one year
validity of the Form I-551 is extended to two years. 8 CFR 223.3(a),
(d). The current two-year validity of the reentry permit matches this
period. Issuing it for a longer validity period could create confusion
and result in some permanent residents remaining abroad for too long
and potentially jeopardizing their status. The validity period of a
travel document or EAD is generally linked to the validity period of
the relating immigration status.
The issuance of interim benefits based on an application for an
adjustment of status was in some respects an exception to this rule.
However, in the 2008/2009 final fee rule, USCIS eliminated extension
application fees for both advance paroles and EADs--issuing them
without charge since they were paid as part of the Form I-485 fee. See
72 FR 29851, 29873. Subsequently, USCIS extended the validity period to
two years for new EADs issued to applicants for adjustment of status
for whom a visa number was not available. See 8 CFR 274a.12(a)
(authorizing USCIS to determine the validity period for EADs). This
change was done in part to eliminate any perception that different
renewal cycles were simply a means of generating revenue from
applicants and petitioners who had applied under the prior fee
structure. The two-year renewal is based on the need to periodically
evaluate continuing eligibility for these associated benefits, whether
provided without additional charge or through a fee.
3. Suggested I-94 Fee
One commenter suggested that USCIS charge a fee for the cost of
recordkeeping and filing of an Arrival-Departure Record, Form I-94,
issued at the POE for non-immigrant visa and visa waiver admissions.
The commenter believed that this is a much larger population and a more
tedious task than collection of the new immigrant visa domestic
processing fee. DHS has not adopted the commenter's suggestion. Form I-
94 and any fees associated with the form are handled by CBP, another
DHS component, and are beyond the scope of this rulemaking.

J. Discussion of Comments Received in Response to the June 1, 2001,
Interim Rule

On June 1, 2001, the Immigration and Naturalization Service, as
predecessor to USCIS, published an interim rule with request for
comments in the Federal Register which:
Added a new paragraph to 8 CFR 103.2(f) to set the
procedural requirements to request premium processing, designate
applications and petitions as eligible, clarify the fees, and provide
for the announcement of the temporary termination of the service;
Amended 103.7(b) and (c) to establish a premium processing
fee;
Amended 103.7(c) to provide that the premium processing
fee cannot be waived; and
Amended 299.1 to provide that Form I-907 should be used to
request premium processing service.

Establishing Premium Processing for Employment-Based Petitions and
Applications, 66 FR 29682 (June 1, 2001). The interim rule implemented
the District of Columbia Appropriations Act, 2001, Public Law 106-553,
114 Stat. 2762 (2000). The legislation added a new INA section 286(u)
that authorized the collection of a $1,000 ``premium processing'' fee
in addition to the regular filing fee for certain petitions and
applications. The legislation limited the authority to collect the
premium processing fee to employment-based petitions and applications.
INA section 286(u), 8 U.S.C. 1356(u).
INS provided a 60 day comment period and received 78 public
comments relating to the interim rule from performing arts
organizations; attorneys, management companies, and representatives of
performing arts organizations; and associations of attorney and
business personnel. Many of the issues raised were addressed above in
response to comments received on the proposed fee rule and that
discussion will not be repeated. Virtually all commenters repeated the
following points:
Although INS allows non-profit organizations to request
expedited processing without charge, some do not qualify and the
process is unreliable;
Expedited processing should be completed in less than 15
days;
INS did not provide enough advance notice of this
immediately effective change or how it would affect cases already
filed; and
O-2 and P visa support petitions and petition amendments
should be

[[Page 58983]]

included within the premium processing fee for the principal.

Each of these comments will be discussed below.
The commenters suggested that USCIS complete its processing in a
shorter timeframe than 15 days. Although we understand this request,
DHS has determined that 15 days is reasonable and it is unable to
guarantee processing in any time shorter than the 15 day period
provided in the rule.
The commenters complained that the interim rule was immediately
effective on publication and did not address its applicability to cases
already filed. As explained in the interim rule, INS determined that it
found good cause to adopt the rule without prior notice and comment and
that any delayed implementation would be contrary to the public
interest. 66 FR 29682, 29684. Since the interim rule has now been in
effect for over nine years and any then-pending cases have been
decided, DHS will not make any changes to the rule in response to these
comments.
The commenters also suggested that there be no additional charge
for petitions filed on behalf of O-2 non-immigrant visa dependents, P
visa essential support personnel, and petition amendments. As discussed
above, USCIS fee methodology is premised on the relative cost to
adjudicate each petition and therefore, it must charge a fee for each
petition and each request for premium processing. As such, DHS cannot
adopt the commenters' suggestion that one premium processing fee cover
several petitions or petition amendments.
In addition, two commenters mentioned the impact of the rule on
Canadian performers who depend on income received from short notice,
short term engagements in the United States. USCIS has decreased its
processing times for O and P petitions; therefore, no special
accommodation is needed for Canadian performers. USCIS has made no
change to the interim rule as a result of them.
One commenter praised the premium processing service but complained
that it would exacerbate H-1B processing for teachers and school
administrators. The commenter also noted the adverse impact of the
timing of H-1B filing season on educational institutions. USCIS has
decreased its processing times for H-1B petitions and seeks to further
improve that process. However, the number of H-1B visas available each
year is fixed by statute and beyond the control of USCIS. INA section
214(g), 8 U.S.C. 1184(g).
Two commenters sought assurances that USCIS would promptly respond
to submissions made in response to Requests for Evidence and Notices of
Intent to Deny to avoid further processing delays and suggested
amending the regulation to require it. As mentioned, USCIS has
decreased its processing times for O and P petitions and has improved
its processing and efficiency overall and strives to decide all cases
promptly. USCIS has made no change to the interim rule as a result of
these comments.
Another commenter reminded that the use of premium processing fees
is limited by statute and suggested that a fee waiver be permitted. INA
section 286(u), 8 U.S.C. 1356(u). USCIS is certainly aware of the
statutory limitation of such fees to ``premium-processing services to
business customers, and to make infrastructure improvements in the
adjudications and customer-service processes'' and limits its use of
such fees to the authorized purposes. Id. Given the significant
improvement in processing times, DHS has decided not to permit a fee
waiver of the premium processing fee. DHS has made no change to the
interim rule as a result of the comment.
One commenter requested that the Application to Register Permanent
Residence or Adjust Status, Form I-485, be added to the list of forms
eligible for premium processing service. Given the complexity and
significance of the adjudication of an application for lawful permanent
residence, USCIS is unable to commit to such a timeframe. Although
USCIS has decreased its processing time for Forms I-485, at this time
it is unable to extend premium processing service to employment-based
Forms I-485.
For these reasons, no changes are made to the interim rule as a
result of the comments received and the interim rule is adopted as
final and changed as described in this rule.

IV. Statutory and Regulatory Reviews

A. Regulatory Flexibility Act--Final Regulatory Flexibility Analysis

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 titled ``Small
Entity Analysis for Adjustment of the U.S. Citizenship and Immigration
Services Fee Schedule'' 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 a final regulatory
flexibility analysis.
1. Objectives of, and Legal Basis for, the Final Rule
DHS's objectives and legal authority for this final rule are
discussed in section III.A of this preamble.

2. Significant Issues Raised by Public Comments in Response to the
Initial Regulatory Flexibility Analysis

Only one commenter specifically mentioned the IRFA. The commenter
was concerned that uncertainty of appropriations funding from Congress
would impact the results of the IRFA. DHS shared this concern and took
steps to insulate the analysis from understating impacts to small
entities. As stated in the proposed rule, DHS utilized fees calculated
without appropriations when preparing the IRFA, which illustrated the
largest impact of this fee increase on small entities.
A number of general comments on the rule raised concerns about the
increase in Form I-129 fees, particularly with respect to non-profit
agencies sponsoring musicians to perform in the U.S. These comments
were directed at operational and efficiency issues rather than the
initial regulatory flexibility analysis. The operational and efficiency
comments have been addressed above in section III(B)(2)(d) of this
final rule. One of those commenters suggested a separate fee structure
for non-profit organizations, but did not provide any further
information. As described in the IRFA, this type of fee structure would
ultimately lead to increased costs for non-profit organizations in the
form of

[[Page 58984]]

longer wait times and reduced customer service.
Most comments concerning EB-5 Regional Center Designation centered
on operational and form-related issues, which are discussed in section
III(E)(3) of this final rule. Some commenters recommended a fee-
exemption for non-profit Regional Centers. The comments did not provide
any analysis to support the need for a fee-exemption for non-profit
Regional Centers, such as data indicating that the DHS analysis was
lacking and have not been adopted.
Many commenters asserted that fees were too high. These comments
are addressed in the response to public comments in section III(B)(2)
of this final rule.
3. Description and Estimate of the Number of Small Entities to Which
the Rule Will Apply
Entities affected by this final rule are those that file and pay
fees for certain immigration benefit applications on behalf of an
alien. These petitions and applications include Form I-129, Petition
for Nonimmigrant Worker; Form I-140, Immigrant Petition for Alien
Worker; Request for 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 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 the impacted industry codes). The fee for Civil
Surgeon designation will impact physicians seeking to be designated as
Civil Surgeons. Finally, Form I-924 will impact any entity requesting
approval and designation to be a Regional Center under the Immigrant
Investor Pilot Program.
4. Reporting, Recordkeeping and Other Compliance Requirements
This final rule imposes higher fees for filers of Forms I-129 and
I-140, and new fees for filers of Civil Surgeon Designation requests
and Form I-924, EB-5 Regional Center applications. The new fee
structure, as it applies to the small entities outlined above, results
in the following fees: Form I-129 ($355), Form I-140 ($630), Civil
Surgeon Designation ($615), and Form I-924 ($6,820). As discussed in
the IRFA, in order not to underestimate the impact of this rule, DHS
analyzed fees based on non-appropriated funding. DHS has applied these
same assumptions to the FRFA. The final rule does not require any new
professional skills for reporting.
5. Steps Taken To Minimize Significant Adverse Economic Impacts on
Small Entities
Section 286(m) of 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 collected for
other immigration benefits. Without an increase in fees, USCIS will not
be able to provide applicants and petitioners with the same levels of
service for immigration and naturalization benefits. DHS has considered
and rejected 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 on small
entities. An alternative to the increased economic burden of the fee
adjustment is to maintain fees at their current level for small
entities. The strength of this alternative is that it assures that no
additional fee-burden is placed on small entities; however, this
alternative also would cause negative impacts to small entities.
Without the fee adjustments provided in this final rule,
significant operational changes to USCIS 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.

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 requests 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

[[Page 58985]]

collected under the current fee structure. This increase in revenue
will be used pursuant to sections 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 and refugee applicants; and the
full cost of similar benefits provided to others at no charge.
If USCIS does not adjust current fees to recover the full costs of
processing immigration benefit requests, USCIS would be forced to
implement 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 final rule was drafted. USCIS has placed a detailed analysis
in the rulemaking docket that explains the basis for the annual fee
increase and has included the required OMB Circular A-4 detailing the
annualized impacts of the rule in table 2.

Table 2--OMB Circular A-4 Accounting Statement
[FY 2010 through FY 2011 (2009 Dollars)]
------------------------------------------------------------------------
Category Primary estimate
------------------------------------------------------------------------
Transfers
Annualized Monetized Transfers at 3%............ $209,264,850
Annualized Monetized Transfers at 7%............ $209,264,850
------------------------------------------------------------------------

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 (PRA) 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. This rule creates two new information
collections.
Application for Civil Surgeon Designation, and
Form I-924 and Form I-924A, Application for Regional
Center under the Immigrant Investor Pilot Program.
In accordance with the PRA, DHS published a 60-day notice in the
Federal Register on June 11, 2010, at 75 FR 33446, requesting comments
on the two new information collections. The comments on the Application
for Civil Surgeon Designation and DHS's response can be found in
section IV(G)(2) of this final rule. The comments on the Forms I-924
and I-924A, Application for Regional Center under the Immigrant
Investor Pilot Program, and DHS's response can be found in section
IV(G)(3) of this final rule, and in an attachment to the supporting
statement that will be posted to www.regulations.gov.
As required by the PRA, the two new information collections were
submitted to the Office of Management and Budget (OMB) for review and
approval. OMB has approved the Application for Civil Surgeon
Designation. The approved OMB Control No. is 1615-0114.
DHS made some edits to the Forms I-924, and I-924A, based on the
public comments and resubmitted these amended forms to OMB for review
and approval.
DHS is requesting comments on the Forms I-924 and I-924A for 30
days until October 25, 2010. Comments on this information collection
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.
a. Type of information collection: Revised 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 I-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.
Comments concerning Form I-924 and I-924A can be submitted to the
Department of Homeland Security, USCIS, Chief, Regulatory Products
Division, Clearance Office, 111 Massachusetts Avenue, Suite 3008, NW.,
Washington, DC 20529-2210.
The changes to the 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 have been
submitted to OMB using OMB Form 83-C, Correction Worksheet, and OMB has
approved these changes.

[[Page 58986]]

List of Subjects

8 CFR Part 103

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

0
Accordingly, the interim rule ``Establishing Premium Processing for
Employment-Based Petitions and Applications,'' published at 66 FR 29682
on June 1, 2001, is adopted as a final rule with the following changes:

PART 103--POWERS AND DUTIES; AVAILABILITY OF RECORDS

0
1. The authority citation for part 103 continues to read as follows:

Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304,
1356; 31 U.S.C. 9701; Public Law 107-296, 116 Stat. 2135 (6 U.S.C. 1
et seq.); E.O. 12356, 47 FR 14874, 15557; 3 CFR, 1982 Comp., p.166;
8 CFR part 2.

Sec. 103.2 [Amended]

0
2. Section 103.2 is amended by:
0
a. Removing paragraph (e)(4)(ii);
0
b. Redesignating paragraphs (e)(4)(iii), and (e)(4)(iv), as paragraphs
(e)(4)(ii), and (e)(4)(iii), respectively; and by
0
c. Removing paragraph (f).

0
3. Section 103.7 is amended by:
0
a. Revising paragraphs (b) and (c);
0
b. Redesignating paragraph (d) as paragraph (f);
0
c. Adding new paragraphs (d) and (e); and by
0
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, or
using biometrics (Biometric Fee). A service fee of $85 will be charged
of any individual who is required to have biometrics captured, stored,
or 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 services 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) The application or petition fee for the associated benefit
request has been waived under paragraph (c) of this section; or
(3) The associated benefit request is an Application for Posthumous
Citizenship (Form N-644); Refugee/Asylee Relative Petition (Form I-
730); Application for T Nonimmigrant Status (Form I-914); Petition for
U Nonimmigrant Status (Form I-918); Application for Naturalization
(Form N-400) by an applicant who meets the requirements of sections 328
or 329 of the Act with respect to military service under paragraph
(b)(1)(i)(WW) of this section; Application to Register Permanent
Residence or Adjust Status (Form I-485) from an asylee under paragraph
(b)(1)(i)(U) of this section; Application To Adjust Status under
Section 245(i) of the Act (Supplement A to Form I-485) from 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 from an asylee under paragraph
(b)(1)(i)(V) of this section; or a Petition for Amerasian, Widow(er),
or Special Immigrant (Form I-360) meeting the requirements of
paragraphs (b)(1)(i)(T)(1), (2), (3) or (4) of this section.
(D) Immigrant visa DHS domestic processing fees. For DHS domestic
processing and issuance of required documents after an immigrant visa
is issued by the Department of State: $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 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

[[Page 58987]]

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:
(1) $165 for a Refugee Travel Document for an adult age 16 or
older.
(2) $105 for a Refugee Travel Document for a child under the age of
16.
(3) $360 for advance parole and any other travel document.
(4) No fee if filed in conjunction with a pending or concurrently
filed Application to Register Permanent Residence or Adjust Status
(Form I-485) when that application was filed with a fee 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. There is no fee
for an appeal or motion associated with a denial of a petition for a
special immigrant visa from an Iraqi or Afghan national who worked for
or on behalf of the U.S. Government in Iraq or Afghanistan.
(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;
(3) A Special Immigrant Juvenile; or
(4) An Iraqi or Afghan national who worked for, or on behalf of the
U.S. Government in Iraq or Afghanistan.
(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 a relationship to the
same individual who is the basis for the child's parent's adjustment of
status, or under the same legal authority as the parent.
(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 A 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 Act) (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 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 Act (Form I-690). For filing an application
for waiver of a ground of inadmissibility under section 212(a) of the
Act 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
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) Application to Adjust Status from Temporary to Permanent
Resident

[[Page 58988]]

(Under Section 245A of Public Law 99-603) (Form I-698). For filing an
application to adjust status from temporary to permanent resident
(under section 245A of Public Law 99-603): $1020. The adjustment date
is the date of filing of the application for permanent residence or the
applicant's eligibility date, whichever is later.
(GG) 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.
(HH) Application for Employment Authorization (Form I-765): $380;
no fee if filed in conjunction with a pending or concurrently filed
Application to Register Permanent Residence or Adjust Status (Form I-
485) when that request was filed with a fee on or after July 30, 2007.
(II) 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.
(JJ) 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.
(KK) 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.
(LL) Application for Family Unity Benefits (Form I-817). For filing
an application for voluntary departure under the Family Unity Program:
$435.
(MM) Application for Temporary Protected Status (Form I-821). For
first time applicants: $50. This $50 application fee does not apply to
re-registration.
(NN) Application for Action on an Approved Application or Petition
(Form I-824). For filing for action on an approved application or
petition: $405.
(OO) Petition by Entrepreneur to Remove Conditions (Form I-829).
For filing a petition by entrepreneur to remove conditions: $3,750.
(PP) 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.
(QQ) Application for Authorization to Issue Certification for
Health Care Workers (Form I-905): $230.
(RR) 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.
(SS) Civil Surgeon Designation. For filing an application for civil
surgeon designation: $615. There is no fee for an application from a
medical officer in the U.S. Armed Forces or civilian physician employed
by the U.S. government who examines members and veterans of the armed
forces and their dependents at a military, Department of Veterans
Affairs, or U.S. Government facility in the United States.
(TT) 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.
(UU) 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.
(VV) Application to File Declaration of Intention (Form N-300). For
filing an application for declaration of intention to become a U.S.
citizen: $250.
(WW) 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. There is no fee if filed on or after
October 1, 2004, by an applicant who has filed an Application for
Naturalization under sections 328 or 329 of the Act with respect to
military service and whose application has been denied.
(XX) 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.
(YY) 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.
(ZZ) 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. There is no fee when this application
is submitted under 8 CFR 338.5(a) or 343a.1 to request correction of a
certificate that contains an error.
(AAA) 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. There is no fee for any application filed by a member or
veteran of any branch of the United States Armed Forces.
(BBB) Application for Citizenship and Issuance of Certificate under
section 322 of the Act (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)

[[Page 58989]]

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 DHS. 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, and 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 8 CFR part 243: $155.00.
(G) 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.
(H) 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.
(I) Special statistical tabulations--a charge will be made to cover
the cost of the work involved: DHS Cost.
(J) Set of monthly, semiannual, or annual tables entitled
``Passenger Travel Reports via Sea and Air'': $7.00. Available from
DHS, then the 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.
(K) 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.
(L) Request for authorization for parole of an alien into the
United States: $65.00.
(2) 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.
(3) 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.
(4) 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 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 Travel Document when filed to request
humanitarian parole,
(v) Application for Advance Permission to Return to Unrelinquished
Domicile,
(vi) Notice of Appeal or Motion, when there is no fee for the
underlying application or petition or that fee may be waived,
(vii) Petition to Remove the Conditions of Residence based on
marriage (Form I-751),
(viii) Application for Employment Authorization,
(ix) Application for Family Unity Benefits,
(x) Application for Temporary Protected Status,
(xi) Application for Suspension of Deportation or Special Rule
Cancellation of Removal (pursuant to section 203 of Pub. L. 105-110),
(xii) Application to File Declaration of Intention, Request for a
Hearing on a Decision in Naturalization Proceedings (under section 336
of the INA),
(xiii) Application for Naturalization,
(xiv) Application to Preserve Residence for Naturalization
Purposes,
(xv) Application for Replacement Naturalization/Citizenship
Document,
(xvi) Application for Certificate of Citizenship,
(xvii) Application for Citizenship and Issuance of Certificate
under section 322 of this Act, and
(xviii) Any fees associated with the filing of any benefit request
by a VAWA

[[Page 58990]]

self-petitioner or under sections 101(a)(15)(T) (T visas),
101(a)(15)(U) (U visas), 106 (battered spouses of A, G, E-3, or H
nonimmigrants), 240A(b)(2) (battered spouse or child of a lawful
permanent resident or U.S. citizen), and 244(a)(3) (Temporary Protected
Status), of the Act (as in effect on March 31, 1997).
(4) The following fees may be waived only for an alien for which a
determination of their likelihood of becoming a public charge under
section 212(a)(4) of the Act is not required at the time of an
application for admission or 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.
(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

0
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.

0
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 30 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. As provided in 8 CFR 103.3, the regional center may appeal
the decision to USCIS within 30 days after the service of notice.
* * * * *

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

0
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]

0
5. Section 244.20 is removed.

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

0
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.

0
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.

[[Page 58991]]

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. 2010-23725 Filed 9-23-10; 8:45 am]
BILLING CODE 9111-97-P