[Federal Register Volume 80, Number 164 (Tuesday, August 25, 2015)]
[Rules and Regulations]
[Pages 51464-51466]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-21042]
[[Page 51464]]
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DEPARTMENT OF STATE
22 CFR Part 22
[Public Notice: 9230]
RIN 1400-AD47
Schedule of Fees for Consular Services, Department of State and
Overseas Embassies and Consulates
AGENCY: Department of State.
ACTION: Final rule.
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SUMMARY: This rule adopts as final the interim final rule published in
the Federal Register on August 28, 2014. Specifically, the rule
implemented changes to the Schedule of Fees for Consular Services
(``Schedule'') for a number of different fees. This rulemaking
addresses public comments and adopts as final the changes to these
fees.
DATES: The Effective date of the final rule published in the Federal
Register of August 28, 2014 (79 FR 51247) is confirmed effective
September 6, 2014.
FOR FURTHER INFORMATION CONTACT: Jill Warning, Office of the
Comptroller, Bureau of Consular Affairs, Department of State; phone:
202-485-6683, telefax: 202-485-6826; email: [email protected].
SUPPLEMENTARY INFORMATION: For the complete explanation of the
background of this rule, including the rationale for the change, the
authority of the Department of State (``Department'') to make the fee
changes in question, and an explanation of the study that produced the
fee amounts, consult the prior public notices cited in the
``Background'' section below.
Background
The Department published an interim final rule in the Federal
Register, 79 FR 51247, on August 28, 2014, amending sections of 22 CFR
part 22. Specifically, the rule amended the Schedule of Fees for
Consular Services and provided 60 days for comments from the public.
During this 60-day comment period, more than 70 comments were received,
either by mail, email, or through the submission process at
www.regulations.gov.
This rule establishes the following fees for the categories below:
--Administrative Processing of Formal Renunciation of U.S. Citizenship
from $450 to $2,350
--E Category Nonimmigrant Visas from $270 to $205
--K Category Nonimmigrant Visas from $240 to $265
--Immigrant Visa Application Processing Fees (per person)
[cir] Immediate relative and family preference applications from $230
to $325
[cir] Employment-based applications from $405 to $345
[cir] Other immigrant visa applications (including I-360 self-
petitioners and special immigrant visa applicants) from $220 to $205
--Affidavit of Support Review from $88 to $120
--Special Visa Services
[cir] Determining Returning Resident Status from $275 to $180
[cir] Waiver of Two-Year Residency Requirement from $215 to $120
--Consular Time Charges from $231 to $135
The fee change for the reduced Border Crossing Card fee for Mexican
citizens under age 15 whose parent or guardian has or is applying for a
Border Crossing Card is not included in this final rule. This fee was
included in the interim final rule published in August 2014, and raised
from $15 to $16. The same month, Congress ordered this fee to be
increased by $1 pursuant to Section 2 of Public Law 113-160. This
additional increase was implemented in a final rule published on
December 31, 2014, which raised this fee from $16 to $17. See 79 FR
79064. Therefore, this fee is not included in this final rule.
The original publication of the interim final rule included an
incorrect effective date of September 6, 2014, for the above changes in
fees. That date was subsequently corrected, but the correction
contained an error (erroneously stating ``September 12, 2104''). See 79
FR 52197. The correct effective date is reflected herein; it is
September 12, 2014.
Analysis of Comments
In the 60-day period since the publication of the interim final
rule, more than 70 comments were received.
The large majority of the comments received expressed concern about
the increased fee for the Administrative Processing of Formal
Renunciation of U.S. Citizenship.
Most commenters requested to pay a lower fee for the renunciation
service, suggesting that they be grandfathered in to the previous fee
of $450. The majority of these commenters had initiated the process of
renouncing their nationality prior to the announcement of the new
fee.\1\ Over half of commenters requested to pay the previous fee after
the new fee went into effect, five commenters asked for earlier
appointments in order to pay the previous fee, and one commenter
requested a refund for the difference between the new fee and the
previous fee. Several commenters characterized the 15-day notice of the
fee change as unfair and suggested that they should have been notified
earlier if the fee was likely to change.
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\1\ Section 101(a)(22) of the Immigration and Nationality Act
(INA) states that ``the term `national of the United States' means
(A) a citizen of the United States, or (B) a person who, though not
a citizen of the United States, owes permanent allegiance to the
United States.'' Therefore, U.S. citizens are also U.S. nationals.
Section 349(a) of the Immigration and Nationality Act (8 U.S.C.
1481) governs how a U.S. national shall lose U.S. nationality.
Therefore, the terms ``national'' and ``nationality'' are used
throughout this rule except for references to specific instances of
``citizen'' or ``citizenship.''
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The Department's policy for citizenship-related services, including
the Administrative Processing of Formal Renunciation of U.S.
Citizenship, is to collect the fee in effect at the time that the
service is provided. Although the renunciation process involves
multiple steps, the service is rendered when the oath to renounce one's
nationality is sworn. U.S. nationals who intend to renounce their
nationality and have a meeting or information session with the consular
post for that purpose, but who change their minds and do not take the
oath, are not charged the fee. In the interest of fairness, the
Department must assess the renunciation fee when the core service is
performed, rather than upon the provision of information. Therefore,
the Department does not offer a lower fee or refunds for those who
receive the renunciation service after the new fee went into effect on
September 12, 2014. Furthermore, embassies and consulates do not have
authority to waive the fee, reduce the fee, or provide a refund where
the fee is properly collected. In addition, although one commenter
contended that the rule-making process was ``truncated,'' the interim
final rule was published pursuant to the ``good cause'' exceptions set
forth at 5 U.S.C. 553(b)(3)(B) and 553(d)(3). The Department deemed
that delaying implementation would be contrary to the public interest
because several fees included in this rulemaking pay for consular
services that are critical to national security. Rules that are exempt
from notice and comment are often effective immediately upon
publication, so the 15-day notice in this case was more notice than is
often provided in such instances.
More than one-third of the comments suggested that the increased
fee to process renunciations is a burden. These commenters asserted
that the new fee is too costly. Some expressed concern about their own
ability to afford the higher fee, pointing to personal
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circumstances including low income, student status, and senior citizen
status. In addition, a few of these commenters asserted that
nationality renunciation is a constitutional or human right. They
stated that the increased fee acts as a deterrent to renouncing one's
nationality, thereby violating the right to expatriate, and suggested
that the renunciation service should be offered at no or low cost.
Specifically, two commenters cited the Expatriation Act of 1868 and
Universal Declaration of Human Rights, both of which address the right
of expatriation.
In raising the fee to process renunciations, the Department has not
restricted or burdened the right of expatriation. Further, the fee is
not punitive, and is unrelated to the IRS tax legislation criticized in
some comments, except to the extent that the legislation caused an
increase in consular workload that must be paid for by user fees.
Rather, the fee is a cost-based user fee for consular services.
Conforming to guidance from the Office of Management and Budget (OMB),
federal agencies make every effort to ensure that each service provided
to specific recipients is self-sustaining, charging fees that are
sufficient to recover the full cost to the government. (See OMB
Circular A-25, ] 6(a)(1), (a)(2)(a).) Because costs change from year to
year, the Department conducts an annual update of the Cost of Service
Model (CoSM) to obtain the most accurate calculation of the costs of
providing consular services. In addition to enabling the government to
recover costs, the study also helps the Department to avoid charging
consumers more than the cost of the services they consume. In sum, the
increased fee for processing renunciations is a ``user charge,'' which
reflects the full cost to the U.S. government of providing the service.
On a per-service basis, renunciation is among the most time-
consuming of all consular services. In the past, however, the
Department charged less than the full cost of the renunciation service.
The total number of renunciations was previously small and constituted
a minor demand on the Department's resources. Consequently, it was
difficult to assess accurately the cost of the service. In contrast, in
recent years, the number of people requesting the renunciation service
has risen dramatically, driven in part by tax legislation affecting
U.S. taxpayers abroad, including the Foreign Account Tax Compliance Act
(FATCA), materially increasing the resources devoted to providing the
service. At one post alone, renunciations rose from under 100 in 2009
to more than 1,100 in the first ten months of 2014. Finally,
improvements to the CoSM made the cost of the renunciation service more
apparent. For all these reasons, the Department decided to raise the
fee to reflect the full cost of the service.
The Department has closely examined comments regarding the right of
expatriation, which is addressed in the Immigration and Nationality Act
and the Universal Declaration of Human Rights. The increased fee,
however, does not impinge on the right of expatriation. Rather, the
increased fee reflects the amount of resources necessary for the U.S.
government to verify that all constitutional and other requirements for
expatriation are satisfied in every case. As described in detail below,
the process of expatriation for a U.S. national requires a thorough,
serious, time-consuming process, in view of U.S. Supreme Court
jurisprudence that declared unconstitutional an involuntary or forcible
expatriation. In Afroyim v. Rusk, 387 U.S. 253 (1967) and Vance v.
Terrazas, 444 U.S. 252 (1980), the Supreme Court ruled that
expatriation requires the voluntary commission of an expatriating act
with the intention or assent of the citizen to relinquish citizenship.
It is therefore incumbent upon the Department to maintain and implement
procedures, as described below, that allow consular officers and other
Department employees to ensure these requirements are satisfied in
every expatriation case.
A few commenters questioned the rationale for raising the
renunciation fee, seeking more insight into how the fee is determined.
Some commenters disputed that the higher fee actually represents the
true cost of processing a renunciation. In particular, one commenter
applied the Consular Time Charge of $135 to the renunciation fee and
asked whether the service actually takes 17 hours. Another commenter
specifically requested more information about the CoSM.
As described in the interim final rule, the CoSM uses activity-
based costing to identify, describe, assign costs to, and report on
agency operations. Using a process view, the model assigns resource
costs such as salaries, travel, and supplies to different activities
such as adjudicating an application or printing a visa foil. These
activity costs are then assigned to cost objects, or products and
services (visas, passports, administrative processing of a
renunciation), to determine how much each service costs.
The CoSM demonstrated that documenting a U.S. national's
renunciation of nationality is extremely costly. The cost of the
service is not limited to the time consular officers spend with the
renunciant at the appointment. The application is reviewed both
overseas and domestically, requiring a substantial amount of time to
ensure full compliance with the law. Through the provision of
substantial information and one or two in-person interviews, the
consular officer must determine that the individual is indeed a U.S.
national, advise the individual on the consequences of loss of
nationality, and determine that the individual fully intends to
relinquish all the rights and privileges attendant to U.S. nationality,
including the ability to reside in the United States unless properly
documented as an alien. The consular officer also must determine
whether the individual is seeking loss of nationality voluntarily or is
under duress, a process that can be demanding in the case of minors or
individuals with a developmental disability or mental illness. At the
oath-taking interview, the consular officer must document the
renunciation service on several forms signed by the individual seeking
loss of nationality. The consular officer also must document the
service in consular systems as well as in memoranda from the consular
officer to headquarters. All forms and memoranda are closely reviewed
at headquarters by a country officer and a senior approving officer
within the Bureau of Consular Affairs, and may include consultation
with legal advisers within the Bureau of Consular Affairs and the
Office of the Legal Adviser. Some applications require multiple rounds
of correspondence between post and headquarters.
Each individual issued a Certificate of Loss of Nationality also is
advised of the possibility of seeking a future Administrative Review of
the loss of nationality, a process that is conducted by the Office of
Legal Affairs, Directorate of Overseas Citizens Service, Bureau of
Consular Affairs. This review must consider whether the statute
pursuant to which the initial finding of loss of nationality was made
has been deemed to be unconstitutional. The review must also take
notice of any significant change in the analysis of expatriation cases
following a holding of the Supreme Court. Furthermore, the review must
also take notice of any change in the interpretation of expatriation
law that is adopted by the Department. Lastly, the review must evaluate
evidence submitted by the expatriate that indicates that his or her
commission of a statutory act of expatriation was either involuntary or
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done without intending to relinquish his/her U.S. nationality.
In addition to the time spent processing renunciations overseas and
domestically, the full cost of processing renunciations includes a
portion of overhead costs that support consular operations overseas per
OMB Circular A-25, Revised. These costs include overseas rent and
security, information technology equipment, and applicable headquarters
support. The Consular Time Charge of $135 per hour was not used in
calculating the cost of a renunciation service. The Consular Time
Charge is used in conjunction with other for-fee services listed on the
Schedule of Fees for Consular Services that are provided outside of the
office or outside of normal working hours.
Four comments asserted that the renunciation should be made more
efficient rather than more costly. A few asked if there were ways to
reduce bureaucracy and paperwork to lower the cost of the service.
Specifically, one commenter pointed to the German renunciation process,
which involves an online application, mailed certified copies of
certain documents, and no in-person interviews. As described above,
certain legal requirements exist in the U.S. system, unique to our laws
and jurisprudence, to protect both the integrity of the process and the
rights of those renouncing. The renunciation process involves
significant safeguards to ensure that the renunciant is a U.S.
national, fully understands the serious consequences of renunciation,
and seeks to renounce voluntarily and intentionally. In short, the
comprehensive process of expatriation under U.S. law does not impinge,
but rather protects, the right of expatriation.
Finally, two comments raised questions about payment options and
sought clarification on the effective date for the fee change. The new
fee for processing renunciations took effect September 12, 2014.
Payment by credit card (at most posts) or cash (in local or U.S.
currency) is accepted at post at the time that the oath of renunciation
is sworn.
In addition to the comments on the renunciation fee increase, the
Department also received eight comments about the changes in immigrant
and nonimmigrant visa fees. Most sought clarification on how the visa
fees were changing, which payment options are available, and when the
new fees will go into effect. One commenter asserted that the visa fees
are set too low.
All tiered immigrant and nonimmigrant visa fees addressed in this
rulemaking are set to reflect the costs of providing each service. The
new visa fees went into effect on September 12, 2014. Further details
on particular fees, including payment options, can be found on the Web
site of the embassy or consulate where the applicant would like to make
a visa appointment.
Conclusion
The Department adjusted the fees in light of the CoSM's findings
that the U.S. government was not fully covering its costs for providing
these consular services. Pursuant to OMB guidance, the Department
endeavors to recover the cost of providing services that benefit
specific individuals, as opposed to the general public. See OMB
Circular A-25, ] 6(a)(1), (a)(2)(a). For this reason, the Department
has adjusted the Schedule.
Regulatory Findings
For a summary of the regulatory findings and analyses regarding
this rulemaking, please refer to the findings and analyses published
with the interim final rule, which can be found at 79 FR 51247, which
are adopted herein. The rule became effective September 6, 2014. As
noted above, the Department has considered the comments submitted in
response to the interim final rule, and does not adopt them. Thus, the
rule remains in effect.
This proposed rule is not a significant regulatory action under
section 3(f) of Executive Order 12866, Regulatory Planning and Review,
as supplemented by Executive Order 13563, Improving Regulation and
Regulatory Review, and does not require an assessment of potential
costs and benefits under section 6(a)(3) of Executive Order 12866 or
under section 1 of Executive Order 13563. OMB has not reviewed it under
those Orders. The Department of State has also considered this rule in
light of Executive Order 13563, dated January 18, 2011, and affirms
that this regulation is consistent with the guidance therein.
List of Subjects in 22 CFR Part 22
Consular services, Fees, Passports, and Visas.
Accordingly, the interim final rule amending 22 CFR part 22, which
was published in the Federal Register, 79 FR 51247, on August 28, 2014
(Public Notice 8850), effective September 6, 2014, is adopted.
Dated: August 10, 2015.
Patrick F. Kennedy,
Under Secretary of State for Management, U.S. Department of State.
[FR Doc. 2015-21042 Filed 8-24-15; 8:45 am]
BILLING CODE 4710-06-P