[Federal Register Volume 76, Number 95 (Tuesday, May 17, 2011)]
[Rules and Regulations]
[Pages 28303-28305]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-11997]



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  Federal Register / Vol. 76, No. 95 / Tuesday, May 17, 2011 / Rules 
and Regulations  

[[Page 28303]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 204

[CIS No. 2502-11, DHS Docket No. USCIS-2011-0002]
RIN 1615-AB93


Requiring Residents Who Live Outside the United States To File 
Petitions According to Form Instructions

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

ACTION: Final rule with a request for comments.

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SUMMARY: The Department of Homeland Security (DHS) is amending its 
regulations to establish the location where a Petition for Alien 
Relative, Form I-130, or a Petition for Amerasian, Widow(er), or 
Special Immigrant, Form I-360, may be filed, accepted, processed and 
approved through form instructions. DHS is promulgating this rule to 
reduce DHS costs by reducing filings of a Petition for Alien Relative 
at non-U.S. Citizenship and Immigration Services (USCIS) international 
locations, such as United States consulates and embassies, and to 
increase USCIS's flexibility in administering this program. DHS is 
removing references to offices, form numbers, approval authorities, and 
internal procedures from the regulation.

DATES: Effective date: This rule is effective on August 15, 2011,
    Comment period: Written comments must be submitted on or before 
July 18, 2011.

ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2011-0002 by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Sunday Aigbe, Chief, Regulatory Products Division, 
Office of the Executive Secretariat, U.S. Citizenship and Immigration 
Services, Department of Homeland Security, 20 Massachusetts Avenue, 
NW., Suite 5012, Washington, DC 20529-2020. To ensure proper handling, 
please reference DHS Docket No. USCIS-2011-0002 on your correspondence. 
This mailing address may also be used for paper, disk, or CD-ROM 
submissions.
     Hand Delivery/Courier: Sunday Aigbe, Chief Regulatory 
Products Division, Office of the Executive Secretariat, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
20 Massachusetts Avenue, NW., Suite 5012, Washington, DC 20529-2020. 
Contact Telephone Number (202) 272-8377.

FOR FURTHER INFORMATION CONTACT: Adam Klein, Office of Policy and 
Strategy, U.S. Citizenship and Immigration Services, Department of 
Homeland Security, 20 Massachusetts Avenue, NW., Suite 1100, 
Washington, DC 20529-2020. Contact Telephone Number (202) 272-1474.

SUPPLEMENTARY INFORMATION: 

I. Public Participation

    All interested parties are invited to participate in this 
rulemaking by submitting written data, views, or arguments on all 
aspects of this final rule. To provide the most assistance to USCIS 
comments should refer to a specific portion of the final rule, explain 
the reason for any recommended change, and include data, information, 
or authority that support that recommended change.
    Instructions: All submissions must include the agency name and DHS 
Docket No. USCIS-2011-0002 for this rulemaking. All comments received 
will be posted without change to http://www.regulations.gov, including 
any personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.

II. Background

    DHS is removing regulatory restrictions on where a Petition for 
Alien Relative, Form I-130, and a Petition for Amerasian, Widow(er), or 
Special Immigrant, Form I-360, on behalf of a widow or widower may be 
filed, as well as any prescription of the location or jurisdiction of 
the U.S. Citizenship and Immigration Services (USCIS) or the U.S. 
Department of State (DOS) with regard to the acceptance, processing, 
and approval of those petitions. A relative petition is used for a 
citizen or lawful permanent resident (LPR) of the United States to 
establish the relationship to certain alien relatives who wish to 
immigrate to the United States. A Petition for Amerasian, Widow(er), or 
Special Immigrant is used by an Amerasian, widow(er), or special 
immigrant to classify an alien as such where the alien wishes to 
immigrate to the United States. After approval of either petition, the 
eligible family member or alien may apply for an immigrant visa or for 
adjustment of status to that of an LPR once a visa number becomes 
available. See Immigration and Nationality Act, as amended (INA), 
section 203, 245(a), 8 U.S.C. 1153 and 1255(a); 22 CFR 42.41; 8 CFR 
245.1(a). No changes are made to regulations pertaining to the 
eligibility of alien relatives to immigrate to the United States.

III. Reason for This Change

    DHS regulations currently provide that certain petitioners residing 
in countries where USCIS does not have an international office may file 
a relative petition or petition by a widow or widower at a U.S. 
consulate abroad and that these petitions may be accepted and approved 
by a consular officer. See 8 CFR 204.1(e). DHS is amending the 
regulations to require that all petitioners who reside outside the 
United States file a relative petition or petition by a widow or 
widower according to the form instructions. See new 8 CFR 204.1(b). 
USCIS will amend the form instructions for relative petitions 
concurrently with this rulemaking to provide the option of either 
mailing the petition to the USCIS Chicago Lockbox, or filing at the 
USCIS international office if the petitioner resides in a country where 
USCIS has an office. USCIS will not be amending form instructions 
relative to a petition by a widow or widowers at this time. USCIS may 
change these form instructions in the future as the USCIS 
transformation progresses or as necessary to shift filings among USCIS 
offices for processing efficiency.

[[Page 28304]]

    This rule represents another step DHS is taking to remove 
unnecessary internal USCIS procedures from regulations and to 
transition toward an electronic environment and away from the filing in 
a paper-based environment. See Removing References to Filing Locations 
and Obsolete References to Legacy Immigration and Naturalization 
Service; Adding a Provision To Facilitate the Expansion of the Use of 
Approved Electronic Equivalents of Paper Forms, 74 FR 26933 (June 5, 
2009). Further, USCIS is modernizing its processes and systems to 
accommodate and encourage greater use of electronic data submission, 
including e-filing and electronic interaction. Regulations that 
prescribe filing locations and adjudicative jurisdictions undermine 
this transformation process, and this rule will help alleviate that 
problem.
    DHS will achieve cost-savings by changing the location of filing 
Petitions for Alien Relatives. The current practice of requiring or 
permitting petitioners who live outside the United States to file a 
relative petition at DOS consular offices is inefficient and requires 
reimbursement. USCIS has reached an agreement, as required by law, with 
the DOS Consular Service for the provision of lockbox and receipting 
services and must reimburse DOS for the costs of those services. See 31 
U.S.C. 1535. USCIS is able to receive these petitions at a lower cost 
than DOS charges USCIS.
    USCIS cannot realize these cost savings until the regulations 
eliminate the option of filing with DOS consular offices by petitioners 
who live outside the United States. See 8 CFR 204.1(e). This final rule 
removes those filing provisions. This change will reduce 
inefficiencies, improve the ability of USCIS to manage its workload, 
and reduce the burden on DOS. After this rule takes effect, petitioners 
residing outside of the United States will file their petitions as 
directed by the form instructions. USCIS will alter its form 
instructions to provide for the filing of Petition for Alien Relative 
with the in-country USCIS office or by mail to a lockbox in the United 
States if there is no in-country USCIS office. Filing locations and 
procedures will remain available on USCIS forms and the USCIS Web site. 
Customer service will remain available where USCIS has an international 
presence and through email. Internal USCIS procedures will govern who 
accepts, adjudicates, and approves petitions.
    DHS is revising 8 CFR 204.1 to remove paragraphs (c), (d), and (e), 
and revising paragraph (b) to cross reference 8 CFR 103.2. New 8 CFR 
204.1(b). DHS is removing current paragraphs (c), (d), and (e), because 
they are redundant with 8 CFR 103.2 and contain unnecessary internal 
procedures. DHS is making those revisions to standardize what is 
considered proper filing among all benefit types, and increase 
flexibility by removing form numbers, form titles, USCIS and DHS job 
titles, specific duties assigned to personnel, and internal operational 
procedures. DHS is systematically removing references to form numbers 
and form titles in all USCIS regulations. Mandating a specific form 
number reduces USCIS's flexibility to modify its business processes to 
change filing procedures.
    By removing 8 CFR 204.1(e) DHS is also removing the requirement in 
that section that a self-petitioning spouse or child of an abusive 
United States citizen or lawful permanent resident file the petition 
with a USCIS office in the United States. Nevertheless, DHS is making 
no substantive changes in this rule that affect potential filers of 
either alien relative or widow(er) petitions. USCIS may change the 
Petition for Amerasian, Widow(er) or Special Immigrant in the future 
after complying with the applicable public notice requirements and 
obtaining Office of Management and Budget (OMB) approval.

IV. Statutory and Regulatory Requirements

A. Administrative Procedure Act

    The Administrative Procedure Act (APA) requires DHS to provide 
public notice and seek public comment on regulations with limited 
exceptions, including ``* * * rules of agency organization, procedure 
or practice.'' 5 U.S.C. 553(b)(A). Under this rule, USCIS will no 
longer accept hand delivery of petitions at a United States consulate 
by DOS officers. International postal or delivery costs may slightly 
increase filing expenses for a relative petition filed by some 
individuals residing outside the United States. These minor changes, 
however, do not substantially affect a substantive right. See, e.g., 
James V. Hurson Associates, Inc. v. Glickman, 229 F.3d 277 (DC Cir. 
2000) (``[A]n otherwise-procedural rule does not become a substantive 
one, for notice-and-comment purposes, simply because it imposes a 
burden on regulated parties.''); see also JEM Broad. Co. v. FCC, 22 
F.3d 320, 326 (DC Cir. 1994). Nonetheless, DHS believes that public 
input may be valuable and invites the public to comment on this change.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) mandates that DHS conduct a 
regulatory flexibility analysis when it publishes any general notice of 
proposed rulemaking. 5 U.S.C. 603(a). RFA analysis is not required when 
a rule is exempt from notice and comment rulemaking. DHS has determined 
that this rule is exempt from the notice-and-comment requirements in 5 
U.S.C. 553(a), and, therefore, a regulatory flexibility analysis is not 
required. This procedural rule will impact only individuals, not small 
entities as defined by the Regulatory Flexibility Act.

C. Unfunded Mandates Reform Act of 1995

    This rule will not result in expenditure by state, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

D. Small Business Regulatory Enforcement Fairness Act of 1996

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

E. Executive Order 12866 and Executive Order 13563

    DHS does not consider this rule to be a ``significant regulatory 
action'' under Executive Order 12866, section 3(f), Regulatory Planning 
and Review, as supplemented by Executive Order 13563. Accordingly, this 
rule has not been submitted to the OMB for review. DHS has considered 
the benefits and costs associated with the changes made in this rule 
and has determined that the benefits justify the potential costs.
    DHS is taking this action to increase operational efficiency and to 
control USCIS costs for processing relative petitions. In fiscal year 
(FY) 2010, a total of 697,162 relative petitions were processed by 
USCIS, 8,135 of them by USCIS international offices. In that same year, 
DOS accepted and processed 9,497 relative petitions in countries where

[[Page 28305]]

USCIS has no overseas office and 6,576 in countries where USCIS is 
located.\1\ In FY 2010, DOS began charging USCIS for services rendered 
in accepting or processing relative petitions. As a fee-funded agency, 
USCIS is statutorily authorized to collect fees at a level that will 
ensure recovery of the full costs of providing adjudication and 
naturalization services, including administrative costs and services 
provided without charge to certain applicants and petitioners. See INA 
section 286(m), 8 U.S.C. 1356(m). The current fee of $420 for a 
relative petition does not cover the DOS charges. Therefore, DHS will 
adjust its internal processes to avoid the DOS charge, thereby 
maintaining the integrity of the current fee schedule for relative 
petitions.
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    \1\ It is not always clear to what extent DOS processes each 
alien relative petition from examining the volume data. In some 
cases, DOS is able to fully adjudicate and process the petition, 
while more complex adjudicative cases are forwarded to USCIS for 
processing and decision. Thus, DHS is hesitant to draw statistical 
comparisons between DOS and DHS processing data, especially in cases 
where there is a USCIS international office.
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    Instructions for filing relative petitions will be amended 
concurrently with this final rule. Instructions for filing relative 
petitions will provide the option of either mailing the petition to the 
USCIS Chicago Lockbox, or filing at the USCIS international office if 
the petitioner resides in a country where USCIS has an office. 
Depending upon the unique circumstances of the United States citizen or 
lawful permanent resident petitioner, this rule could result in a cost 
savings or additional burden to the petitioner. Travel costs and 
mailing costs vary widely among individual petitioners. Thus, DHS 
cannot precisely estimate the costs or savings impacts of the rule. For 
example, when a petitioner resides in a country with no USCIS presence, 
the rule could provide a cost savings if mailing the petition is less 
expensive than the cost of traveling to the nearest DOS office, or vice 
versa. DHS believes that the benefits of streamlining USCIS operations 
in processing alien relative petitions to avoid DOS charges justifies 
the potential cost impact on petitioners residing in international 
locations.

F. Executive Order 13132

    This rule will not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, DHS has determined that this rule does not have 
sufficient Federalism implications to warrant the preparation of a 
Federalism summary impact statement.

G. Executive Order 12988: Civil Justice Reform

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

H. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA), DHS submits to OMB 
for review and approval any reporting or recordkeeping requirements 
inherent in a regulatory action. 44 U.S.C. 3506. The information 
collection burden for the Petition for Alien Relative has been approved 
by OMB and assigned OMB control number 1615-0012. This rule does not 
impose any new reporting or recordkeeping requirements under the PRA. 
However, USCIS is making minor changes to the Petition for Alien 
Relative (Form I-130) instructions to instruct petitioners about where 
to file. Accordingly, USCIS will submit a Correction Worksheet, Form 
OMB 83-C, and amended instructions to OMB for review and approval in 
accordance with the PRA.

List of Subjects in 8 CFR Part 204

    Administrative practice and procedures, Immigration, Reporting and 
recordkeeping requirements.

    Accordingly, DHS is amending part 204 of chapter I of title 8 of 
the Code of Federal Regulations as follows:

PART 204--IMMIGRANT PETITIONS

0
1. 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.

Subpart A--Immigrant Visa Petitions

0
2. Section 204.1 is amended by revising paragraph (b) and removing and 
reserving paragraphs (c), (d), and (e).
    The revision reads as follows:


Sec.  204.1  General information about immediate relative and family-
sponsored petitions.

* * * * *
    (b) Proper filing. A petition for alien relative and a petition for 
Amerasian, widow(er), or special immigrant must be filed on the form 
prescribed by USCIS in accordance with the form instructions, and will 
be considered properly filed when the petition is filed in accordance 
with 8 CFR 103.2. The filing date of a petition is the date it is 
properly filed and received by USCIS. That date will constitute the 
priority date.
* * * * *

Janet Napolitano,
Secretary.
[FR Doc. 2011-11997 Filed 5-16-11; 8:45 am]
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