[Federal Register Volume 81, Number 86 (Wednesday, May 4, 2016)]
[Proposed Rules]
[Pages 26904-26940]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-10297]
[[Page 26903]]
Vol. 81
Wednesday,
No. 86
May 4, 2016
Part III
Department of Homeland Security
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8 CFR Parts 103 and 204
U.S. Citizenship and Immigration Services Fee Schedule; Proposed Rule
Federal Register / Vol. 81 , No. 86 / Wednesday, May 4, 2016 /
Proposed Rules
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 103 and 204
[CIS No. 2577-15; DHS Docket No. USCIS-2016-0001]
RIN 1615-AC09
U.S. Citizenship and Immigration Services Fee Schedule
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Proposed rule.
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SUMMARY: The Department of Homeland Security (DHS) proposes to adjust
certain immigration and naturalization benefit request fees charged by
U.S. Citizenship and Immigration Services (USCIS). USCIS conducted a
comprehensive fee review, after refining its cost accounting process,
and determined that current fees do not recover the full costs of the
services it provides. Adjustment to the fee schedule is necessary to
fully recover costs for USCIS services and to maintain adequate
service. DHS proposes to increase USCIS fees by a weighted average of
21 percent and add one new fee. In addition, DHS proposes to clarify
that persons filing a benefit request may be required to appear for
biometrics services or an interview and pay the biometrics services
fee, and make a number of other changes.
DATES: Written comments must be submitted on or before July 5, 2016.
ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2016-0001, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow this site's instructions for submitting comments.
Email: You may email comments directly to USCIS at
[email protected]. Include DHS Docket No. USCIS-2016-0001 in the
subject line of the message.
Mail: You may submit comments directly to USCIS by mailing
them to Samantha Deshommes, Acting Chief, Regulatory Coordination
Division, Office of Policy and Strategy, U.S. Citizenship and
Immigration Services, Department of Homeland Security, 20 Massachusetts
Avenue NW., Washington, DC 20529-2020. To ensure proper handling,
please reference DHS Docket No. USCIS-2016-0001 on your correspondence.
This mailing address may be used for paper or CD-ROM submissions.
Hand Delivery/Courier: You may submit comments directly to
USCIS by having them delivered to Samantha Deshommes, Acting Chief,
Regulatory Coordination Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
20 Massachusetts Avenue NW., Washington, DC 20529-2020. The contact
telephone number is (202) 272-8377.
FOR FURTHER INFORMATION CONTACT: Joseph D. Moore, Chief Financial
Officer, U.S. Citizenship and Immigration Services, Department of
Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529-
2130, telephone (202) 272-1969.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Executive Summary
III. Background
A. Legal Authority and Guidance
B. Full Cost Recovery
C. New Statutory Fees for Certain H-1B and L-1 Petitions
IV. The Immigration Examinations Fee Account
A. General Background
B. Fee Review History
C. USCIS Initiatives Funded Under the 2010 Fee Adjustment
D. Processing Time Outlook
V. FY 2016/2017 Immigration Examinations Fee Account Fee Review
A. Overall Approach
B. Basis for Fee Schedule
1. Costs
2. Revenue
3. No Discretionary Appropriations for RAIO, SAVE, Office of
Citizenship, or Military Naturalization Costs
4. New Fee for Annual Certification of Regional Center, Form I-
924A
5. Summary
VI. Fee Review Methodology
A. Background
1. ABC Methodology
2. Continuing Low Volume Reallocation From FY 2010/2011 Fee Rule
3. Applying Cost Reallocation to Other Form Types
4. Reduced Fee for Application for Naturalization
5. Holding the Biometric Services Fee at Its Current Level
6. Continuing To Hold the Refugee Travel Document Fee to the
Department of State Passport Fee
7. Holding the Fee for a Petition by Entrepreneur To Remove
Conditions (Form I-829) at Its Current Level
B. Changes for the FY 2016/2017 Fee Review
1. Interim Benefits
2. I-485 Fee for Child Under 14, Filing With Parent
3. One Fee for a Genealogy Records Request
4. Dishonored Payments and Failure To Pay the Biometrics
Services Fee
5. Refunds
C. Fee-Related Issues Noted for Consideration
1. Premium Processing
2. Accommodating E-Filing and Form Flexibility
3. Fee Waivers
VII. Volume
A. Workload Volume and Volume Projection Committee
B. Fee-Paying Volume and Methodology
VIII. Completion Rates
IX. Proposed Fee Adjustments to Immigration Examinations Fee Account
Immigration Benefits
X. Statutory and Regulatory Reviews
A. Regulatory Flexibility Act
B. Unfunded Mandates Reform Act
C. Small Business Regulatory Enforcement Fairness Act
D. Congressional Review Act
E. Executive Orders 12866 and 13563 (Regulatory Planning and
Review)
F. Executive Order 13132 (Federalism)
G. Executive Order 12988 (Civil Justice Reform)
H. Paperwork Reduction Act
List of Acronyms and Abbreviations
ABC Activity-Based Costing
BLS Bureau of Labor Statistics
CFO Chief Financial Officer
CNMI Commonwealth of the Northern Mariana Islands
CPI Consumer Price Index
DACA Deferred Action for Childhood Arrivals
DOD Department of Defense
DHS Department of Homeland Security
DOL Department of Labor
DOS Department of State
EB-5 Employment-Based Immigrant Visa, Fifth Preference
EIN Employer Identification Number
FASAB Federal Accounting Standards Advisory Board
FBI Federal Bureau of Investigation
FOIA Freedom of Information Act
FY Fiscal Year
GAO Government Accountability Office
IEFA Immigration Examinations Fee Account
INA Immigration and Nationality Act of 1952
IPO Investor Program Office
IOAA Independent Offices Appropriations Act
NACARA Nicaraguan Adjustment and Central American Relief Act
NAICS North American Industry Classification System
OMB Office of Management and Budget
RAIO Refugee, Asylum, and International Operations Directorate
RFA Regulatory Flexibility Act
SAVE Systematic Alien Verification for Entitlements
SBA Small Business Administration
TPS Temporary Protected Status
UMRA Unfunded Mandates Reform Act
USCIS U.S. Citizenship and Immigration Services
USPHS U.S. Public Health Service
VPC Volume Projection Committee
I. Public Participation
DHS invites you to participate in this rulemaking by submitting
written data, views, or arguments on all aspects of this proposed rule.
Comments providing
[[Page 26905]]
the most assistance to DHS will reference a specific portion of the
proposed rule, explain the reason for any recommended change, and
include data, information, or authority that supports the recommended
change.
Instructions: All submissions should include the agency name and
DHS Docket No. USCIS-2016-0001 for this rulemaking. Providing comments
is entirely voluntary. Regardless of how you submit your comment to
DHS, all submissions will be posted, without change, to the Federal
eRulemaking Portal at http://www.regulations.gov and will include any
personal information you provide. Because the information you submit
will be publicly available, you should consider limiting the amount of
personal information in your submission. DHS may withhold information
provided in comments from public viewing if DHS determines that such
information is offensive or may affect the privacy of an individual.
For additional information, please read the Privacy Act notice
available through the link in the footer of http://www.regulations.gov.
Docket: For access to the docket, go to http://www.regulations.gov
and enter this rulemaking's eDocket number: USCIS-2016-0001. The docket
includes additional documents that support the analysis contained in
this proposed rule to determine the specific fees that are proposed.
These documents include:
Fiscal Year (FY) 2016/2017 Immigration Examinations Fee
Account Fee Review Supporting Documentation; and
Small Entity Analysis for Adjustment of the U.S.
Citizenship and Immigration Services Fee Schedule notice of proposed
rulemaking (NPRM).
You may review these documents on the electronic docket. The
software \1\ used in computing the immigration benefit request fees \2\
and biometric fees \3\ is a commercial product licensed to USCIS that
may be accessed on-site, by appointment, by calling (202) 272-1969.\4\
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\1\ USCIS uses commercially available activity-based costing
software, SAP Business Objects Profitability and Cost Management, to
create financial models to implement activity-based costing (ABC),
as described in the ABC Methodology section.
\2\ Benefit request means any application, petition, motion,
appeal, or other request relating to an immigration or
naturalization benefit, whether such request is filed on a paper
form or submitted in an electronic format, provided such request is
submitted in a manner prescribed by DHS for such purpose. 8 CFR 1.2.
\3\ DHS uses the terms biometric fees, biometric services fees,
and biometric fee synonymously in this rule to describe the process
and fee for capturing, storing, or using biometrics.
\4\ This rule describes the ABC model and key inputs to that
model (total budget, workload estimates, staffing, and completion
rates), both here and in the supporting documentation in the docket.
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II. Executive Summary
DHS proposes to adjust its fee schedule, which specifies the amount
of the fee charged for each immigration and naturalization benefit
request. The fee schedule was last adjusted on November 23, 2010. See
75 FR 58962 (Sept. 24, 2010) (final rule) (FY 2010/2011 Fee Rule).
U.S. Citizenship and Immigration Services (USCIS) is primarily
funded by immigration and naturalization benefit request fees charged
to applicants and petitioners. Fees collected from individuals and
entities filing immigration benefit requests are deposited into the
Immigration Examinations Fee Account (IEFA) and used to fund the cost
of processing immigration benefit requests.
In accordance with the requirements and principles of the Chief
Financial Officers Act of 1990, 31 U.S.C. 901-03, (CFO Act), and Office
of Management and Budget (OMB) Circular A-25, USCIS reviews the fees
deposited into the IEFA biennially and, if necessary, proposes
adjustments to ensure recovery of costs necessary to meet national
security, customer service, and adjudicative processing goals. USCIS
completed a biennial fee review for FY 2016/2017 in 2015. The results
indicate that current fee levels are insufficient to recover the full
cost of activities funded by the IEFA.
USCIS calculates its fees to recover the full cost of USCIS
operations, which do not include the limited appropriated funds
provided by Congress. USCIS anticipates if it continues to operate at
current fee levels, it will experience an average annual shortfall of
$560 million between IEFA revenues and costs. This projected shortfall
poses a risk of degrading USCIS operations funded by IEFA revenue. The
proposed rule would eliminate this risk by ensuring full cost recovery.
DHS proposes to adjust fees by a weighted average increase of 21
percent. The weighted average increase is the percentage difference
between the current and proposed fees by immigration benefit type.\5\
USCIS discusses the overall increase proposed in this rule in terms of
weighted average, as opposed to a straight average, because the figure
represents a more accurate depiction of the overall effect that this
proposed rule would have on fee revenue.
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\5\ USCIS uses weighted average as opposed to a straight average
because of the difference in volume by immigration benefit type and
the resulting effect on fee revenue. See the FY 2016/2017
Immigration Examinations Fee Account Fee Review Supporting
Documentation for further information. The 21% weighted average
increase is a change in the average fee that must be paid per filing
for a form that currently requires a fee as compared to the average
that would have to be paid per form as proposed in this rule. The
sum of the current fees multiplied by the projected FY 2016/2017 fee
paying receipts by immigration benefit type, divided by the total
fee paying receipts = $332. The sum of the proposed fees multiplied
by the projected FY 2016/2017 receipts by immigration benefit type,
divided by the fee paying receipts = $403. There is a $71 difference
between these two averages, or 21%.
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In addition to ensuring that fees for each specific benefit type
are adequate to cover the USCIS costs associated with administering the
benefit, the weighted average increase of 21 percent also accounts for
USCIS costs for services that are not directly fee funded. For
instance, DHS proposes certain changes to how USCIS funds the costs for
fee-exempt benefit types through IEFA fee collections received from
other fee-paying individuals seeking immigration benefits.\6\ DHS also
proposes to fund the costs of the Systematic Alien Verification for
Entitlements (SAVE) program (to the extent not recovered from
users),\7\ and the Office of Citizenship \8\ through the use of fees.
The proposed fee schedule also accounts for increased costs to
administer refugee processing. Revenues under the proposed rule would
accommodate an anticipated increase in the refugee admissions ceiling
to 100,000 for FY 2017. This is an increase of 30,000, or 43 percent,
over the FY 2015 refugee admissions ceiling.
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\6\ USCIS does not charge a fee for military naturalizations, as
the Department of Defense (DOD) currently reimburses USCIS for costs
related to such naturalizations. Accordingly, USCIS does not propose
to increase fees to cover the costs of military naturalizations.
\7\ The SAVE program was established in 1987 by the Immigration
Reform and Control Act (IRCA), Pub. L. 99-603, Sec. 121(c) (Nov. 6,
1986), which required the Commissioner of the Immigration and
Naturalization Service (INS) to ``implement a system for the
verification of immigration status . . . so that the system is
available to all States by not later than October 1, 1987.'' SAVE
uses an internet-based service to assist Federal, state and local
benefit-issuing and licensing agencies, and other governmental
entities, in determining the immigration status of benefit or
license applicants, so that only those applicants entitled to
benefits or licenses receive them.
\8\ The USCIS Office of Citizenship was established by section
451(f) of the Homeland Security Act of 2002. Pub. L. 107-296, Sec.
451(f) (2002). The statute tasks the office with ``promoting
instruction and training on citizenship responsibilities for aliens
interested in becoming naturalized citizens.''
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In addition to the overall increase to existing fees, DHS proposes
to establish a new fee of $3,035 to recover the full cost of processing
the Employment Based Immigrant Visa, Fifth Preference
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(EB-5) Annual Certification of Regional Center, Form I-924A.\9\ While
approved EB-5 Regional Centers are required to file Form I-924A
annually, there is currently no filing fee and as a result, DHS does
not fully recover the processing costs associated with such filings.
DHS therefore proposes to establish a filing fee for this form.
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\9\ This rule proposes to change the title of Form I-924A from
``Supplement to Form I-924'' to ``Annual Certification of Regional
Center.''
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DHS also proposes to establish a three-level fee for the
Application for Naturalization (Form N-400). First, DHS would increase
the standard fee for Form N-400 from $595 to $640. Second, DHS would
continue to charge no fee to an applicant who meets the requirements of
sections 328 or 329 of the Immigration and Nationality Act of 1952
(INA) with respect to military service and applicants with approved fee
waivers. Third, DHS would charge a reduced fee of $320 for
naturalization applicants with family income greater than 150 percent
and not more than 200 percent of the Federal Poverty Guidelines. DHS is
proposing this change to increase access to United States citizenship.
DHS also proposes to remove regulatory provisions that prevent
USCIS from rejecting an immigration or naturalization benefit request
paid with a dishonored check or lacking the required biometric services
fee until the remitter has been provided an opportunity to correct the
deficient payment. Finally, DHS proposes to clarify that persons filing
any benefit request may be required to appear for biometrics services
or an interview and may be required to pay the biometrics services fee.
III. Background
A. Legal Authority and Guidance
DHS issues this proposed rule consistent with INA section 286(m), 8
U.S.C. 1356(m) (authorizing DHS to charge fees for adjudication and
naturalization services at a level to ``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'' \10\), and the CFO Act, 31 U.S.C. 901-03 (requiring each
agency's Chief Financial Officer (CFO) to review, on a biennial basis,
the fees imposed by the agency for services it provides, and to
recommend changes to the agency's fees).
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\10\ The longstanding interpretation of DHS is that the
``including'' clause in section 286(m) does not constrain DHS's fee
authority under the statute. The ``including'' clause offers only a
non-exhaustive list of some of the costs that DHS may consider part
of the full costs of providing adjudication and naturalization
services.
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This proposed rule is also consistent with non-statutory guidance
on fees, the budget process, and federal accounting principles. See OMB
Circular A-25, available at http://www.whitehouse.gov/omb/circulars_a025/, 58 FR 38142 (July 15, 1993) (establishing federal
policy guidance regarding fees assessed by federal agencies for
government services); Federal Accounting Standards Advisory Board
(FASAB) Handbook, Version 14 (06/15), SFFAS 4, No. 37, available at
http://files.fasab.gov/pdffiles/handbook_sffas_4.pdf (generally
describing cost accounting concepts and standards, and defining ``full
cost'' to include ``direct and indirect costs that contribute to the
output, regardless of funding sources.''); id. at 33-42 (identifying
various classifications of costs to be included and recommending
various methods of cost assignment); see also OMB Circular A-11,
Preparation, Submission, and Execution of the Budget, section 20.7(d),
(g) (June 30, 2015)), available at www.whitehouse.gov/sites/default/files/omb/assets/a11_current_year/a11_2015.pdf (providing guidance on
the FY 2017 Budget and instructions on budget execution, offsetting
collections, and user fees). DHS uses OMB Circular A-25 as general
policy guidance for determining user fees for immigration benefit
requests, with exceptions as outlined below. DHS also follows the
annual guidance in OMB Circular A-11 if it requests appropriations to
offset a portion of IEFA costs.\11\
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\11\ OMB Circulars A-25 and A-11 provide nonbinding internal
Executive Branch direction for the development of fee schedules
under the Independent Offices Appropriations Act (IOAA) and
appropriations requests, respectively. See 5 CFR 1310.1. Although
DHS is not required to strictly adhere to these OMB circulars in
setting USCIS fees, DHS used the activity-based costing (ABC)
methodology supported in Circulars A-25 and A-11 to develop the
proposed fee schedule.
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Finally, this rule accounts for and is consistent with
congressional appropriations for specific USCIS programs. Appropriated
funding for USCIS for FY 2016 provided funding only for the E-Verify
employment eligibility verification program in the amount of $119.7
million. See Consolidated Appropriations Act, 2016, Public Law 114-113,
div. F, tit. IV (Dec. 18, 2015) (DHS Appropriations Act 2016).
B. Full Cost Recovery
Consistent with the aforementioned authorities and sources, this
proposed rule would ensure that USCIS recovers the full costs for its
services and maintains an adequate level of service. The proposed rule
would do this in two ways. First, where possible, the proposed rule
would set fees at levels sufficient to cover the full cost of the
corresponding services.\12\ DHS works with OMB and generally follows
OMB Circular A-25, which ``establishes federal policy regarding fees
assessed for Government services and for sale or use of Government
goods or resources.'' See OMB Circular A-25, User Charges (Revised),
para. 6, 58 FR 38142 (July 15, 1993). A primary objective of OMB
Circular A-25 is to ensure that federal agencies recover the full cost
of providing specific services to users and associated costs. See id.,
para. 5. Full costs include, but are not limited to, an appropriate
share of:
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\12\ INA section 286(m), 8 U.S.C. 1356(m), provides broader fee-
setting authority and is an exception from the stricter costs-for-
services-rendered requirements of the Independent Offices
Appropriations Act, 1952, 31 U.S.C. 9701(c) (IOAA). See Seafarers
Int'l Union of N. Am. v. U.S. Coast Guard, 81 F.3d 179 (D.C. Cir.
1996) (IOAA provides that expenses incurred by agency to serve some
independent public interest cannot be included in cost basis for a
user fee, although agency is not prohibited from charging applicant
full cost of services rendered to applicant which also results in
some incidental public benefits). Congress initially enacted
immigration fee authority under the IOAA. See Ayuda, Inc. v.
Attorney General, 848 F.2d 1297 (D.C. Cir. 1988). Congress
thereafter amended the relevant provision of law to require deposit
of the receipts into the separate Immigration Examinations Fee
Account of the Treasury as offsetting receipts to fund operations,
and broadened the fee-setting authority. Departments of Commerce,
Justice, and State, the Judiciary, and Related Agencies
Appropriations Act, 1991, Public Law 101-515, sec. 210(d), 104 Stat.
2101, 2111 (Nov. 5, 1990). Additional values are considered in
setting Immigration Examinations Fee Account fees that would not be
considered in setting fees under the IOAA. See 72 FR at 29866-7.
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Direct and indirect personnel costs, including salaries
and fringe benefits such as medical insurance and retirement;
Physical overhead, consulting, and other indirect costs,
including material and supply costs, utilities, insurance, travel, and
rents or imputed rents on land, buildings, and equipment;
Management and supervisory costs; and
The costs of enforcement, collection, research,
establishment of standards, and regulation. Id.
Second, this proposed rule would set fees at a level sufficient to
fund overall requirements and general operations when no annual
appropriations are received, fees are statutorily set at a level that
does not recover costs, or DHS determines that a type of immigration
benefit request should be exempt, in whole or in part, from payment of
fees. As noted, Congress has provided that USCIS may set fees for
providing
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adjudication and naturalization services 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. See INA section 286(m), 8 U.S.C.
1356(m).\13\ DHS has interpreted this statutory fee-setting authority,
including the authorization for DHS to collect ``full costs'' for
providing ``adjudication and naturalization services,'' as granting DHS
broad discretion to include costs other than OMB Circular A-25
generally provides. See OMB Circular A-25, para. 6d1; INA section
286(m), 8 U.S.C. 1356(m). In short, DHS may charge fees at a level that
will ensure recovery of all direct and indirect costs associated with
providing immigration adjudication and naturalization services.\14\
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\13\ Congress has provided separate but similar authority for
establishing USCIS genealogy program fees. See INA section 286(t), 8
U.S.C. 1356(t). The statute requires that genealogy program fees be
deposited into the Examinations Fee Account and that the fees for
such research and information services may be set at a level that
will ensure the recovery of the full costs of providing all such
services. Id. The methodology for calculating the genealogy program
fees is discussed in a separate section later in this preamble.
\14\ Congress has not defined either term with any degree of
specificity for purposes of subsections (m) and (n). See, e.g.,
Barahona v. Napolitano, No. 10-1574, 2011 WL 4840716, at **6-8
(S.D.N.Y. Oct. 11, 2011) (``While the term `full costs' appears
self-explanatory, section 286(m) contains both silence and ambiguity
concerning the precise scope that `full costs' entails in this
context.''); see also King v. Burwell, 135 S. Ct. 2480, 2489 (2015)
(``[O]ftentimes the `meaning--or ambiguity--of certain words or
phrases may only become evident when placed in context.' So when
deciding whether the language is plain, we must read the words `in
their context and with a view to their place in the overall
statutory scheme.' '') (quoting FDA v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 132-33 (2000)).
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Consistent with this historical position, this proposed rule would
set fees at a level that will ensure recovery of the full operating
costs of USCIS, the entity within DHS that provides almost all
immigration adjudication and naturalization services. See Homeland
Security Act (HSA), Public Law 107-296, sec. 451, 116 Stat. 2142 (Nov.
26, 2002) (6 U.S.C. 271). The statute authorizes recovery of the full
costs of providing immigration adjudication and naturalization
services. Congress has historically relied on this authority to support
the vast majority of USCIS programs and operations, which are conducted
as part of adjudication and naturalization service delivery. This
conclusion is supported by Congress' historical appropriations to
USCIS. USCIS receives only a small amount of appropriated funds
annually, and the agency must use other means to fund, as a matter of
both discretion and necessity, all other USCIS operations.
Thus, for example, certain functions (such as SAVE \15\ and the
Office of Citizenship \16\), that USCIS has administered since DHS's
inception as an integrated part of fulfilling USCIS's statutory
responsibility to provide immigration adjudication and naturalization
services, are not associated with specific fees, but may be IEFA-
funded. Similarly, when a filing fee for a benefit such as Temporary
Protected Status (TPS), capped by statute at $50, does not cover the
cost of adjudicating these benefit requests, DHS may recover the
difference with fees charged to other benefit requests. See INA section
244(c)(1)(B), 8 U.S.C. 1254a(c)(1)(B); 8 CFR 103.7(b)(1)(i)(MM);
proposed 8 CFR 103.7(b)(1)(i)(NN). Finally, when DHS exempts certain
foreign nationals from visa fees--for example, victims who assist law
enforcement in the investigation or prosecution of acts of human
trafficking (T nonimmigrant status) or certain other crimes (U
nonimmigrant status)--the cost of processing those fee-exempt visas
must be recovered by fees charged to other benefit requests. See, e.g.,
proposed 8 CFR 103.7(b)(1)(i)(UU)-(VV).
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\15\ SAVE has been funded almost exclusively by user fees and
IEFA funds, as Congress has not provided any direct appropriated
funds for the program since FY 2007. SAVE provides an ``immigration
adjudication . . . service'' under sections 286(m) and (n) of the
INA to Federal, state and local agencies who require immigration
adjudication information in administering their benefits.
\16\ The Office of Citizenship was created in the HSA at the
same time as several other mission essential USCIS offices, such as
those for legal, budget and policy. Like those offices, the Office
of Citizenship has always been considered an essential part of the
``adjudication and naturalization services'' USCIS provides under
sections 286(m) and (n) of the INA. An integral part of providing
such services, as Congress recognized in creating the Citizenship
office in section 451(f) of the INA, includes providing information
to potential applicants for naturalization regarding the process of
naturalization and related activities.
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In short, the full costs of USCIS operations cannot be as directly
correlated or connected to a specific fee as OMB Circular A-25 advises.
Nonetheless, DHS follows OMB Circular A-25 to the extent appropriate,
including its direction that fees should be set to recover the costs of
an agency's services in their entirety and that full costs are
determined based upon the best available records of the agency. Id. DHS
therefore applies the discretion provided in INA section 286(m), 8
U.S.C. 1356(m), to: (1) Use ABC to establish a model for assigning
costs to specific benefit requests in a manner reasonably consistent
with OMB Circular A-25; (2) distribute costs that are not attributed to
or driven by specific adjudication and naturalization services; \17\
and (3) make additional adjustments to effectuate specific policy
objectives.\18\
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\17\ The ABC model distributes indirect costs. Costs that are
not assigned to specific fee-paying immigration benefit requests are
reallocated to other fee-paying immigration benefit requests outside
the model. For example, the model determines the direct and indirect
costs for refugee and asylum workload. The costs associated with
processing the refugee and asylum workload are reallocated outside
the model to other fee-paying immigration benefit requests.
\18\ DHS may reasonably adjust fees based on value judgments and
public policy reasons where a rational basis for the methodology is
propounded in the rulemaking. See FCC v. Fox Television Stations,
Inc., 556 U.S. 502, 515 (2009); Motor Vehicle Mfrs. Ass'n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).
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By approving the DHS annual appropriations that provide very
limited funds to USCIS, Congress has consistently recognized that the
``full'' cost of operating USCIS, including SAVE and the Office of
Citizenship, less any appropriated funding, is the appropriate cost
basis for establishing IEFA fees. Nevertheless, in each biennial
review, DHS adds refinements to its determination of immigration
benefit fees, including the level by which fees match directly
assignable, associated, and indirect costs.
C. New Statutory Fees for Certain H-1B and L-1 Petitions
The James Zadroga 9/11 Victim Compensation Fund Reauthorization Act
increased Fees For Certain H-1B \19\ And L-1 \20\ Visa Petitioners. See
Consolidated Appropriations Act, 2016, Public Law 114-113, div. O, tit.
IV, sec. 402 (Dec. 18, 2015). These petitioners must submit an
additional fee of $4,000 for certain H-1B petitions and $4,500 for
certain L-1A and L-1B petitions postmarked on or after December 18,
2015. Proposed 8 CFR 103.7(b)(1)(i)(III)-(JJJ).
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\19\ The H-1B nonimmigrant classification allows U.S. employers
to temporarily employ foreign workers in the United States to
perform services in a specialty occupation, services of an
exceptional nature relating to a Department of Defense cooperative
research and development project, or services as a fashion model of
distinguished merit or ability. INA section 101(a)(15)(H), 8 U.S.C.
1101(a)(15)(H).
\20\ L-1 petitions are filed to transfer individuals who are
employed outside the United States as executives or managers, or in
positions that require specialized knowledge, to a position with the
same or a related entity inside the United States. INA section
101(a)(15)(L), 8 U.S.C. 1101(a)(15)(L).
---------------------------------------------------------------------------
The additional fees apply to petitioners who employ 50 or more
employees in the United States, with more than 50 percent of those
employees in H-1B or L-1 (including L-1A and L-1B) nonimmigrant status.
[[Page 26908]]
These petitioners must submit the additional fees with an H-1B or L-1
petition filed:
Initially to grant status to a nonimmigrant described in
subparagraph (H)(i)(b) or (L) of section 101(a)(15) of the Immigration
and Nationality Act; or
To obtain authorization for a nonimmigrant in such status
to change employers.
USCIS began rejecting petitions after February 11, 2016 that do not
include the additional Public Law 114-113 fee, if applicable. This fee
is in addition to the Petition for a Nonimmigrant Worker (Form I-129)
fee, the Fraud Prevention and Detection Fee, and the American
Competitiveness and Workforce Improvement Act of 1998 fee (when
required), as well as the premium processing fee (if applicable). These
fees, when applicable, may not be waived. Public Law 114-113 fees will
remain effective through September 30, 2025.
USCIS collects this revenue, but does not spend it. One half of the
revenue collected from such fees goes to the General Fund of the
Treasury. The other half is deposited by DHS into the 9-11 Response and
Biometric Exit Account to fund a biometric entry-exit data system to
track the lawful entrance and departure of all noncitizens at U.S.
airports and land border crossings. After a total of $1,000,000,000 is
deposited into the 9-11 Response and Biometric Exit Account, further
revenue will be deposited in the general fund of the Treasury. The
funds in the 9-11 Response and Biometric Exit Account will remain
available until expended to U.S. Customs and Border Protection and/or
other DHS components to implement the biometric entry-exit data system.
USCIS is already collecting these new statutory fees and is in the
process of revising the instructions for the Petition for a
Nonimmigrant Worker, Form I-129, and the Nonimmigrant Petition Based on
Blanket L Petition, Form I-129S, to include them. DHS is required to
charge these fees and has no authority to change them. DHS is proposing
to publish these new statutory fees in the interest of transparency,
information and clarity.
IV. The Immigration Examinations Fee Account
A. General Background
In 1988, Congress established the IEFA in the Treasury of the
United States. See Public Law 100-459, sec. 209, 102 Stat. 2186 (Oct.
1, 1988) (codified as amended at INA sections 286(m) and (n), 8 U.S.C.
1356(m) and (n)). Fees deposited into the IEFA fund the provision of
immigration adjudication and naturalization services. In subsequent
legislation, Congress directed that the IEFA also fund the cost of
asylum processing and other services provided to immigrants at no
charge. See Public Law 101-515, sec. 210(d)(1) and (2), 104 Stat. 2101,
2121 (Nov. 5, 1990). Consequently, the immigration benefit fees were
increased to recover these additional costs. See 59 FR 30520 (June 14,
1994).
B. Fee Review History
Most recently, DHS published a revised USCIS fee schedule in its
2010/2011 Fee Rule that amended many USCIS fees to more accurately
reflect the costs of services provided by USCIS. 75 FR 58962 (Sept. 24,
2010).\21\ The rule was effective on November 23, 2010. The Department
of Justice \22\ also adjusted fees incrementally in 1994, and DHS
adjusted fees in 2002, 2004, and 2005. See 59 FR 30520 (June 14, 1994);
66 FR 65811 (Dec. 21, 2001); 69 FR 20528 (Apr. 15, 2004); 70 FR 56182
(Sept. 26, 2005). After a decade of incremental changes, DHS published
a comprehensive Fee Rule in 2007. See 72 FR 29851 (May 30, 2007). The
documentation accompanying this proposed rule in the rulemaking docket
at www.regulations.gov contains a historical fee schedule that shows
the immigration benefit fee history since FY 1985.
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\21\ The phrase ``FY 2010/2011 Fee Rule,'' as used in this
proposed rule, encompasses the proposed rule, final rule, fee study,
and all supporting documentation associated with the regulations
effective as of November 23, 2010.
\22\ The Homeland Security Act of 2002 abolished the Immigration
and Naturalization Service (INS) and transferred the INS's
immigration administration and enforcement responsibilities from the
Department of Justice to DHS. The INS's immigration and citizenship
services functions were specifically transferred to the Bureau of
Citizenship and Immigration Services, later renamed U.S. Citizenship
and Immigration Services. See Public Law 107-296, Sec. 451; 6
U.S.C. 271.
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USCIS reviews the IEFA every 2 years as required by the CFO Act and
consistent with guidance in OMB Circular A-25. 31 U.S.C. 902(a)(8); OMB
Circular A-25, section 8e. The CFO Act and OMB Circular A-25 require
that fees be reviewed biennially so that fee-funded agencies monitor
and adjust their fees in light of actual and projected expenses. Id.
Table 1 sets out the IEFA and biometric services fee schedule that
took effect on November 23, 2010. DHS is proposing to change the fee
schedule as a result of the 2016/2017 Fee Review. The table excludes
statutory fees that DHS cannot adjust.
Table 1--Current Non-Statutory IEFA Immigration Benefit Request Fees
------------------------------------------------------------------------
Form No.\23\ Title Fee
------------------------------------------------------------------------
G-1041...................... Genealogy Index Search $20
Request.
G-1041A..................... Genealogy Records Request 20
(Copy from Microfilm).
G-1041A..................... Genealogy Records Request 35
(Copy from Textual
Record).
I-90........................ Application to Replace 365
Permanent Resident Card.
I-102....................... Application for 330
Replacement/Initial
Nonimmigrant Arrival-
Departure Document.
I-129....................... Petition for a 325
Nonimmigrant Worker.
I-129F...................... Petition for Alien 340
Fianc[eacute](e).
I-130....................... Petition for Alien 420
Relative.
I-131....................... Application for Travel 360
Document \24\.
I-140....................... Immigrant Petition for 580
Alien Worker.
I-191....................... Application for Advance 585
Permission to Return to
Unrelinquished Domicile.
I-192....................... Application for Advance 585
Permission to Enter as
Nonimmigrant.
I-193....................... Application for Waiver of 585
Passport and/or Visa.
I-212....................... Application for Permission 585
to Reapply for Admission
into the U.S. After
Deportation or Removal.
I-290B...................... Notice of Appeal or Motion 630
I-360....................... Petition for Amerasian, 405
Widow(er), or Special
Immigrant.
I-485....................... Application to Register 985
Permanent Residence or
Adjust Status.
I-485....................... Application to Register 635
Permanent Residence or
Adjust Status \25\.
[[Page 26909]]
I-526....................... Immigrant Petition by 1,500
Alien Entrepreneur.
I-539....................... Application to Extend/ 290
Change Nonimmigrant
Status.
I-600....................... Petition to Classify 720
Orphan as an Immediate
Relative.
I-600A...................... Application for Advance 720
Processing of Orphan
Petition.
I-601....................... Application for Waiver of 585
Ground of Excludability.
I-601A...................... Application for 585
Provisional Unlawful
Presence Waiver.
I-612....................... Application for Waiver of 585
the Foreign Residence
Requirement (Under
Section 212(e) of the
INA, as Amended).
I-687....................... Application for Status as 1,130
a Temporary Resident
under Section 245A of the
Immigration and
Nationality Act.
I-690....................... Application for Waiver of 200
Grounds of
Inadmissibility.
I-694....................... Notice of Appeal of 755
Decision under Section
210 or 245A.
I-698....................... Application to Adjust 1,020
Status from Temporary to
Permanent Resident (Under
Section 245A of Pub. L.
99-603).
I-751....................... Petition to Remove the 505
Conditions of Residence.
I-765....................... Application for Employment 380
Authorization.
I-800....................... Petition to Classify 720
Convention Adoptee as an
Immediate Relative.
I-800A...................... Application for 720
Determination of
Suitability to Adopt a
Child from a Convention
Country.
I-817....................... Application for Family 435
Unity Benefits.
I-824....................... Application for Action on 405
an Approved Application
or Petition.
I-829....................... Petition by Entrepreneur 3,750
to Remove Conditions.
I-910....................... Application for Civil 615
Surgeon Designation.
I-924....................... Application for Regional 6,230
Center Designation Under
the Immigrant Investor
Program \26\.
I-929....................... Petition for Qualifying 215
Family Member of a U-1
Nonimmigrant.
N-300....................... Application to File 250
Declaration of Intention.
N-336....................... Request for Hearing on a 650
Decision in
Naturalization
Proceedings.
N-400....................... Application for 595
Naturalization.
N-470....................... Application to Preserve 330
Residence for
Naturalization Purposes.
N-565....................... Application for 345
Replacement
Naturalization/
Citizenship Document.
N-600/600K.................. Application for 600
Certification of
Citizenship/Application
for Citizenship and
Issuance of Certificate
under Section 322.
Immigrant visa DHS 165
domestic processing fee
\27\.
Biometrics Fee.............. Biometric services........ 85
------------------------------------------------------------------------
C. USCIS Initiatives Funded Under the 2010 Fee Adjustment
In the FY 2010/2011 fee rule, USCIS committed to a set of goals and
performance improvements that were aimed at increasing accountability,
providing better customer service, and increasing efficiency. See 75 FR
33457-8. These performance enhancements were:
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\23\ Form when used in connection with a benefit or other
request to be filed with DHS to request an immigration benefit,
means a device for the collection of information in a standard
format that may be submitted in a paper format or an electronic
format as prescribed by USCIS on its official Internet Web site. The
term ``Form'' followed by an immigration form number includes an
approved electronic equivalent of such form as made available by
USCIS on its official Internet Web site. See 8 CFR 1.2 and 299.1.
Therefore, the word ``form'' is used in this rule in both the
specific and general sense.
\24\ As described more fully below, the fees for an Application
for Travel Document to request a Refugee Travel Document are guided
by the United States' obligations under the 1967 Protocol relating
to the Status of Refugees (incorporating by reference Article 28 of
the 1951 U.N. Convention relating to the Status of Refugees) and not
calculated by the USCIS fee model. 8 CFR 103.7(b)(1)(i)(M)(2) and
(3).
\25\ This reduced fee is applied to ``an applicant under the age
of 14 years when [the application] is (i) submitted concurrently
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.'' 8 CFR
103.7(b)(1)(i)(U)(2).
\26\ DHS proposes to remove the word ``Pilot'' from the form
title.
\27\ DHS proposes to change the fee name to ``USCIS Immigrant
Fee.'' See proposed 8 CFR 103.7(b)(1)(i)(D).
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Deployment of Transformed Processes and System. USCIS
deployed the first release of its new electronic case management
system, the Electronic Immigration System (ELIS), in the third quarter
of FY 2012. ELIS was subsequently rebuilt using an agile software
development methodology and simplified technology architecture. As a
result of this effort, USCIS is able to deploy increased electronic
processing capability to the system more quickly than the traditional
software development approach. USCIS processed approximately 17 percent
of agency intake of benefit requests in ELIS in fiscal year 2015. USCIS
anticipates that approximately 30 percent of agency intake will be
processed through ELIS by the end of fiscal year 2016; additional
increased processing through ELIS is likely in fiscal year 2017.
Expanding the Use of Systems Qualified Adjudication to a
Larger Share of USCIS Workload. The term Systems Qualified Adjudication
is now referred to as System Assisted Processing. This is a form of
electronic pre-adjudication that improves the efficiency of processing
benefit requests and affords immigration service officers more time to
focus on complex adjudications. USCIS will continue to expand this
approach where it is determined feasible as part of its business
transformation initiative.
Integration of Productivity Measures in Future Fee Review
Methodology. DHS has stated in past fee rules that USCIS would
integrate productivity measures into the underlying methodology it uses
to conduct fee reviews. See, e.g., 72 FR 29857 (``Future productivity
enhancements will produce lower costs per unit that will be reflected
in future price adjustments.''). USCIS has done this and plans to
continue to identify efficiency gains resulting from information
technology investments and process improvements, including the cost
savings that occur due to these changes, and ensure that those savings
are incorporated into new fee amounts derived from future fee reviews.
[[Page 26910]]
D. Processing Time Outlook
USCIS acknowledges that since it last adjusted fees in FY 2010, the
agency has experienced elevated processing times compared to the goals
established in FY 2007. These processing delays have contributed to
case processing backlogs. This can partially be attributed to having
removed the surcharge previously applied to the IEFA fee schedule to
recover costs related to the USCIS Refugee, Asylum, and International
Operations Directorate (RAIO), SAVE, and the Office of Citizenship.
This was done in anticipation of Congress granting the request for
annual discretionary appropriations to fund these programs that was in
the President's Budget. Those resources did not fully materialize and
since FY 2012 USCIS has used other fee revenue to support these
programs. DHS is proposing to adjust fees by a total weighted average
increase of 21 percent; the total 21 percent weighted average increase
would be allocated as follows:
Reinstate a surcharge in the fee schedule to fully fund
RAIO, SAVE, and the Office of Citizenship (approximately 8 percent);
Account for reduced revenue stemming from an increase in
fee waivers granted since FY 2010 (approximately 9 percent); and
Recover the costs needed to sustain current operating
levels while allowing for limited, strategic investments necessary to
ensure the agency's information technology infrastructure is
strengthened to protect against potential cyber intrusions, and to
build the necessary disaster recovery and back-up capabilities required
to effectively deliver the USCIS mission (approximately 4 percent).
Through this rule, USCIS expects to collect sufficient fee revenue
to fully support RAIO, SAVE and the Office of Citizenship. This would
allow USCIS to discontinue diverting fee revenue to fund these
programs, thereby increasing resources to fund the personnel needed to
improve case processing, reduce backlogs, and achieve processing times
that are in line with the commitments in the FY 2007 Fee Rule, which
USCIS is still committed to achieving.
In addition, to make current published processing time information
more transparent and easier for customers to interpret, USCIS is
evaluating the feasibility of calculating processing times using data
generated directly from case management systems, rather than with self-
reported performance data provided by Service Centers and Field
Offices. Preliminary findings suggest that USCIS will be able to
publish processing times sooner and with greater transparency by
showing different processing times for each office and form type. USCIS
is also considering publishing processing times using a range rather
than using one number or date. This approach would show that, for
example, half of cases are decided in between X and Y number of months.
USCIS also expects to improve the customer experience as we
continue to transition to online filing and electronic processing of
immigration applications and petitions. With the new person-centric
electronic case processing environment, USCIS will possess the data
needed to provide near-real-time processing updates to the customer
that will identify the case status and time period lapsed between
actions for each individual case. This will allow greater transparency
to the public on how long it will take to process each case as it moves
from stage to stage (e.g., from biometrics collection, to interview, to
decision).
USCIS is committed to giving stakeholders and customers the
information they need, when they need it. To that end, it is
transforming how it calculates and posts processing time information to
improve the timeliness of such postings, but more importantly, to
achieve greater transparency of USCIS case processing.
V. FY 2016/2017 Immigration Examinations Fee Account Fee Review
A. Overall Approach
USCIS manages three fee accounts:
1. The IEFA (which includes premium processing revenues),\28\
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\28\ INA secs. 286(m), (n) & (u), 8 U.S.C. 1356(m), (n) & (u).
---------------------------------------------------------------------------
2. The Fraud Prevention and Detection Account,\29\ and
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\29\ INA secs. 214(c)(12)-(13), 286(v), 8 U.S.C. 1184(c)(12)-
(13) 1356(v).
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3. The H-1B Nonimmigrant Petitioner Account.\30\
---------------------------------------------------------------------------
\30\ INA secs. 214(c)(9), (11), 286(s), 8 U.S.C. 1184(c)(9),
(11), 1356(s).
---------------------------------------------------------------------------
The Fraud Prevention and Detection Account and the H-1B
Nonimmigrant Petitioner Account are both funded by statutorily set
fees. The proceeds of these fees are divided among USCIS to use for
fraud detection and prevention activities and for the National Science
Foundation and the Department of Labor. DHS has no authority to adjust
fees for these accounts.
The IEFA comprised approximately 94 percent of total funding for
USCIS in FY 2015 and is the focus of this proposed rule. The FY 2016/
2017 Fee Review encompasses three core elements:
Cost Projections--The cost baseline is the estimated level
of funding necessary to maintain an adequate level of operations and
does not include program increases for new development, modernization,
or acquisition. Proposed program increases are considered outside of
the baseline. Cost projections for FY 2016/2017 are derived from the
USCIS annual operating plan for FY 2015.
Revenue Status and Projections--Actual revenue collections
for a set 12-month period (June 2013--May 2014) are used to derive
projections for the 2-year period of the fee review based on current
and anticipated trends.
Cost and Revenue Differential--The difference between
anticipated costs and revenue, assuming no change in fees, is
identified.
The primary objective of this fee review was to ensure that fee
revenue provides sufficient funding to meet ongoing operating costs,
including national security, customer service, and adjudicative
processing needs.
B. Basis for Fee Schedule
When conducting the comprehensive fee review, USCIS reviewed its
recent cost history, operating environment, and current service levels
to determine the appropriate method to assign costs to particular form
types. Overall, USCIS kept costs as low as possible and minimized non-
critical program changes that would have increased costs.
1. Costs
The cost baseline is comprised of the resources (including both
personnel and non-personnel expenses) necessary for each USCIS office
to sustain operations. The baseline excludes new or expanded programs
and significant policy changes. A detailed annual operating plan is the
starting point for baseline estimates.
In developing estimates for program needs in FY 2016/2017, USCIS
used the FY 2015 annual operating plan as the starting point and made
necessary adjustments, including:
Pay inflation ($11.3 million in FY 2016 and $23.1 million
in FY 2017). The assumed government-wide pay inflation rate is 1
percent for FY 2016 and 2 percent for FY 2017;
Additional staff ($166.7 million in FY 2016 and $171.6
million in FY 2017). Based on the results of the FY 2015 Staffing
Allocation Model \31\ and
[[Page 26911]]
enhancement staffing requests submitted by program offices, USCIS
projects that an additional 1,171 positions are needed to meet
adjudicative processing goals and other USCIS mission objectives.
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\31\ The Staffing Allocation Model is a workforce planning model
used to calculate estimates of staffing types and levels necessary
to undertake specific workload (e.g., applications and petitions)
levels at target processing times.
---------------------------------------------------------------------------
Additional resource requirements ($24.9 million in FY 2016
and $16.7 million in FY 2017). These additional resources will sustain
current operations to support the USCIS strategic goals.
Premium processing costs ($264.3 million in FY 2016 and
$266.7 million in FY 2017). In addition to continuing to cover costs
associated with the Office of Transformation, USCIS plans to use
premium processing fees to pay an annual average of $79.3 million in
costs associated with administering premium-processing services and
infrastructure improvements in the adjudications and customer services
processes.\32\ These costs pertain to the Service Center Operations
staff adjudicating cases that requested premium processing service,
transformation-related expenses (including the Office of Transformation
Coordination personnel), and infrastructure investments being made to
enhance the adjudication process and customer service.
---------------------------------------------------------------------------
\32\ Premium processing fees are a subset of IEFA fees
separately designated by Congress. See INA section 286(u), 8 U.S.C.
1186(u).
---------------------------------------------------------------------------
FY 2016/2017 total projected costs for the Refugee,
Asylum, and International Operations Directorate (RAIO) (including an
increase in the refugee admissions ceiling to 100,000 for FY 2017),
SAVE,\33\ and the Office of Citizenship (including the Citizenship and
Integration Grant Program) ($303.1 million). This is an increase of
$158 million, or 108 percent, over FY 2010 actual costs of $145.4
million. The costs for these programs were removed from the FY 2010/
2011 model used to calculate the USCIS fee schedule in the 2010 Fee
Rule, consistent with FY 2010 appropriations and consistent with the
Administration's FY 2011 budget request. That budget request was not
fulfilled, and USCIS was left to pay the costs of these programs after
having removed the surcharge. See 75 FR 58963.
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\33\ SAVE is partially funded by reimbursable revenue from
Federal, state, and local governments. The proposed fees only fund
the remaining SAVE costs that are not funded by reimbursable
revenue.
---------------------------------------------------------------------------
Table 2 summarizes adjustments to the FY 2015 cost baseline to
reach the FY 2016 and FY 2017 cost baselines. After accounting for
reductions, additional staff, and additional resource requirements, FY
2016 costs are 5 percent higher than the FY 2015 adjusted IEFA budget.
FY 2017 costs are 2 percent higher than FY 2016 costs.
Table 2--Baseline Adjustments
[Dollars in thousands]
------------------------------------------------------------------------
------------------------------------------------------------------------
Total FY 2015 Adjusted IEFA Budget......................... $2,863,889
Plus: Pay Inflation and Promotions/Within Grade Increases.. 130,092
Plus: Net Additional Costs................................. 137,381
Less: Spending Adjustments................................. -122,338
Total FY 2016 Adjusted IEFA Budget......................... $3,009,024
Plus: Pay Inflation and Promotions/Within Grade Increases.. 38,072
Plus: Net Additional Costs................................. 19,452
Total FY 2017 Adjusted IEFA Budget......................... $3,066,548
------------------------------------------------------------------------
The projected annual budget for the FY 2016/2017 biennial fee
review period is $3.038 billion. This is a $767 million, or 34 percent,
increase over the FY 2010/2011 adjusted annual budget of $2.271
billion. The main drivers of this increase are described in detail
throughout this rule and the supporting documentation.
2. Revenue
The FY 2016/2017 Fee Review assumes that baseline revenue under the
current fee schedule will increase from the FY 2010/2011 Fee Rule
projection of $2.056 billion to $2.478 billion, an increase of
approximately 9 percent. This results from a fee-paying volume increase
of 13 percent despite a workload volume increase of 23 percent. See 75
FR 33456. Table 3 summarizes the projected cost differential.
Table 3--IEFA Cost Baseline and Revenue Comparison
[Dollars in thousands]
----------------------------------------------------------------------------------------------------------------
FY 2016/2017
Fiscal year FY 2016 FY 2017 Average
----------------------------------------------------------------------------------------------------------------
Non-Premium Revenue............................................. $2,507,683 $2,448,596 $2,478,139
IEFA Cost Baseline.............................................. $3,009,024 $3,066,548 $3,037,786
Difference...................................................... ($501,341) ($617,952) ($559,647)
----------------------------------------------------------------------------------------------------------------
Historically, and for the purpose of the fee review, USCIS has
reported costs and revenue using an average over the biennial time
period. In Table 3, FY 2016 and 2017 costs and revenue are averaged to
determine the projected Fee Rule amounts. Based on current immigration
benefit and biometric services fees and projected volumes, fees are
expected to generate $2.478 billion in average annual revenue in FY
2016 and FY 2017. For the same period, the average cost of processing
those benefit requests is $3.038 billion. This calculation results in
an average annual deficit of $560 million.
3. No Discretionary Appropriations for RAIO, SAVE, Office of
Citizenship, or Military Naturalization Costs
The current fee schedule is inadequate partly because it was
established assuming that funds requested in the President's FY 2010
and FY 2011 budgets would be appropriated from Congress, yet those
requests were not fulfilled. The FY 2010 and FY 2011 budgets requested
$55 million and $259 million, respectively, to enable USCIS to remove
the surcharge associated with refugee and asylum workload and military
naturalization processing from immigration benefit request fees and to
fund the cost of the SAVE program and the Office of Citizenship.\34\
Before 2010, the USCIS fee schedule included a surcharge that could be
used to recover the cost of adjudicating asylum, refugee, and military
naturalization requests. See 72 FR 29867. The 2010 Fee Rule removed
those costs and the surcharge from the fee structure. See 75 FR 58961,
58966. Congress, in its FY 2011
[[Page 26912]]
continuing resolution, provided USCIS with only $29.95 million \35\ of
the requested $259 million to fund the refugee and asylum processing
administered under the RAIO Directorate and military naturalization
processing. See Public Law 112-10, sec. 1639 (Apr. 15, 2011). USCIS has
not received any substantial appropriations for these programs since FY
2011. Similarly, USCIS received no FY 2016 discretionary appropriations
for the SAVE program or for the Office of Citizenship. See DHS
Appropriations Act 2016, Public Law 114-113, div. F. (Dec. 18,
2015).\36\ To avoid ongoing funding shortfalls for these programs,
USCIS assumes in its fee model that no appropriations will be received
for workload related to RAIO, SAVE, or Office of Citizenship operations
and related expense items for the FY 2016/2017 biennial period.
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\34\ See Office of Management and Budget, Budget of the United
States Government, Fiscal Year 2010, at 510-1 (2009), available at
http://www.gpo.gov/fdsys/pkg/BUDGET-2010-SUMMARY/pdf/BUDGET-2010-SUMMARY.pdf.
\35\ USCIS received $29.95 million and also reprogrammed $25
million from the prior year bringing the total spending authority to
$54.95 million.
\36\ USCIS did not receive appropriations for refugee and asylum
processing or SAVE after FY 2011. USCIS received $2.5 million for
the immigrant integration grants program in FY 2014 (Pub. L. 113-76)
and FY 2013 (Pub. L. 113-6). USCIS did not receive appropriations
for the immigrant integration grants program in FY 2015 or FY 2016.
---------------------------------------------------------------------------
Therefore, DHS proposes to fund the USCIS costs for RAIO, SAVE, and
the Office of Citizenship through IEFA fee collections received from
other fee-paying individuals seeking immigration benefits. DHS proposes
to set the fees at a level sufficient to recover full costs.
USCIS is, however, requesting reimbursement from DOD for costs
related to military naturalizations. DOD has reimbursed USCIS for the
cost of naturalization processing for eligible military service members
since FY 2012. See 10 U.S.C. 1790 (providing that the Secretary of
Defense may reimburse the Secretary of Homeland Security (Secretary)
for actual costs incurred by USCIS for processing applications for
naturalization, not to exceed $7,500,000 per fiscal year). The fee
model presumes these reimbursements will continue in FY 2016/2017 and
therefore does not seek to recover these costs through IEFA fee
collections.
4. New Fee for Annual Certification of Regional Center, Form I-924A
DHS proposes to establish a new fee in this rule for Annual
Certification of Regional Center, Form I-924A, to recover the full cost
of processing this EB-5 benefit type. See proposed 8 CFR
103.7(b)(1)(i)(WW). Form I-924A is used by regional centers to
demonstrate continued eligibility for their designation. See 8 CFR
204.6(m)(6). Regional centers must submit the form to USCIS annually or
upon request. Id. Upon failure to file Form I-924A or to demonstrate
continued promotion of economic growth, USCIS will issue a Notice of
Intent to Terminate. Id. If the regional center fails to overcome the
grounds alleged in the Notice of Intent to Terminate, USCIS will
terminate the designation of the regional center. Id. The form helps
USCIS ensure that regional centers are continuing to promote economic
growth and are otherwise in compliance with all applicable program
requirements. Further, the form assists investors seeking to invest in
a regional center, as it provides the regional center and USCIS with a
process for recording data regarding the regional center's activities
and job creation that can be shared with potential investors on a case-
by-case basis.\37\ Although approved regional centers are required to
file the Form I-924A annually, there is currently no filing fee and the
processing cost is borne by other individuals paying fees for
immigration benefits.
---------------------------------------------------------------------------
\37\ USCIS will provide the information to prospective investors
in response to written requests for government records through the
Freedom of Information Act, consistent with applicable laws and
policies regarding the disclosure of information.
---------------------------------------------------------------------------
USCIS is proposing to establish a fee for the Form I-924A because
USCIS incurs significant costs to review the Form I-924A and to
administer the regional center program. In addition, the regional
center program is continuing to grow rapidly.\38\ With approximately
800 currently approved regional centers, USCIS must expend adjudicative
resources to handle Form I-924A filings for which no fee is currently
collected. Regional centers are often complex partnerships, limited
liability companies, or other business entities involved in multiple
commercial enterprises that may overlap or intertwine. These complex
relationships must be described on the Form I-924A and the filing must
be reviewed by USCIS to determine if the regional center continues to
comply with program requirements. 8 CFR 204.6(m)(6) (requiring a
regional center to provide USCIS with updated information to
demonstrate the regional center is continuing to promote economic
growth, including improved regional productivity, job creation, and
increased domestic capital investment in the approved geographic area).
In addition, USCIS conducts site visits to some regional centers to
verify the information provided in connection with its original
application. USCIS also conducts onsite audits of a select number of
regional centers each year to validate the information the center has
provided and ensure that the objectives of the Immigrant Investor
Program are being met. DHS is proposing to establish and collect a fee
for Form I-924A to recoup the costs of carrying out these activities.
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\38\ There were 340 designated regional centers required to file
Form I-924A at the end of FY 2013, and 580 such centers at the end
of FY 2014, representing a 70 percent increase in 1 year.
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DHS proposes to establish the fee for the Form I-924A at $3,035.
Proposed 8 CFR 103.7(b)(1)(i)(WW)(1). USCIS calculated this fee using
the same ABC model used to calculate the other fees that DHS proposes
in this rule. As with other proposed fees, projected adjudication hours
determine part of the fee.
In addition to establishing the fee, DHS is clarifying the related
regulations that provide for the annual regional center review related
to the Form I-924A. In addition, a change is proposed to accommodate
regional centers that seek to withdraw their designation. Proposed 8
CFR 204.6(m)(6)(vi). USCIS has received requests recently from regional
centers seeking to withdraw their designation and discontinue their
participation in the program. We currently have no procedure for this
request and instead must proceed with the formal termination process of
issuing a Notice of Intent to Terminate followed by a termination
notice. Providing a withdrawal procedure will simplify the ability to
terminate a regional center when the entity seeks to withdraw its
designation. In conjunction with the fee, DHS wants to ensure that the
requirements for continued participation for regional centers and the
procedures to follow to meet the requirements are clear. Proposed 8 CFR
204.6(m)(6).
5. Summary
USCIS' projected FY 2016/2017 total operating costs are expected to
exceed projected total revenue; this differential would be addressed
with increased revenue. Under this proposed rule, increased revenue
would be derived from a weighted average fee increase on existing
immigration benefits and a new fee for Annual Certification of Regional
Center, Form I-924A. The level of fee increase necessary to align costs
and revenue is a weighted average of 21 percent. As noted earlier in
this preamble, of the 21 percent weighted average increase,
approximately four percent is directly attributable to cost increases
for services included in the FY 2010/2011 Fee Rule. The remaining 17
[[Page 26913]]
percent is attributable to services that the FY 2010/2011 Fee Rule did
not take into consideration, either because DHS assumed that these
services would be funded through appropriations, or because the
incidence of fee waivers has increased following the publication of the
FY 2010/2011 Fee Rule.
VI. Fee Review Methodology
When conducting a fee review, USCIS reviews its recent cost
history, operating environment, and current service levels to determine
the appropriate method to assign costs to particular benefit requests.
The methodology used in the review reflects a robust capability to
calculate, analyze, and project costs and revenues.
USCIS uses commercially available ABC software to create financial
models to calculate the costs for processing immigration benefit
requests, including the costs for biometric services. Following the FY
2010/2011 Fee Rule, USCIS identified several key methodology changes to
improve the accuracy of its ABC model, as discussed in the
``Methodology for the 2016/2017 Fee Review'' section in the Supporting
Documentation. USCIS continues to update the ABC model with the most
current information for fee review and cost management purposes.
A. Background
ABC is a business management tool that assigns resource costs to
operational activities and then to products and services. These
assignments provide an accurate cost assessment of each work stream
involved in producing the individual outputs of an agency or
organization. The Federal Accounting Standards Advisory Board (FASAB)
notes that ABC helps improve product costing by avoiding arbitrary
indirect cost allocation and enables USCIS to conform to Managerial
Cost Accounting Concepts and Standards for the Federal Government.\39\
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\39\ See Federal Accounting Standards Advisory Board Handbook,
Version 14 (06/15), SFFAS 4, No. 152.
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1. ABC Methodology
DHS has included FY 2016/2017 Fee Review Supporting Documentation,
including a detailed report on how it calculated the fee schedule
proposed in the docket for this rulemaking. Comments are welcome on the
supporting documentation and all aspects of this proposal. A summary of
the fee study, calculations, methodology and conclusions follows.
a. Resources
Resources equal the projected FY 2016/2017 annual cost baseline of
$3.0 billion. USCIS designed the ABC model structure for FY 2016/2017
to resemble the structure of the FY 2015 annual operating plan. That
plan is the detailed budget execution plan USCIS establishes at the
beginning of the fiscal year consistent with the approved fiscal year
spending authority and forecasted fee revenue.
b. Resource Drivers and Resource Assignment
ABC uses resource drivers to assign resources to activities. (See
Section VI.A.1.c. of this preamble for more information.) All resource
costs are assigned to activities, so the total resources in the model
equal the total cost of activities.
A common resource driver in ABC is the number of employees in an
organization and the percentage of time they spend performing various
activities. The FY 2016/2017 ABC model uses employee counts and
activity information to assign resources to activities. USCIS refers to
this process as the payroll title analysis. The payroll title analysis
determines how employees contribute to the eleven activities in the fee
review. When an office engages in more than one activity, USCIS uses
operational information to prorate that office's time to multiple
activities. Historical activity information is applied to projected
staffing levels in FY 2016/2017. The ABC model assigns resources to
activities using anticipated staffing levels and historical activity
information from the payroll title analysis for each office.
USCIS assigns some costs directly to activities. For example, the
contract awarded to support USCIS Application Support Center operations
only pertains to the ``Perform Biometric Services'' activity.
Therefore, the costs of this contract are assigned directly to this
activity. Other overhead costs, including costs for the Office of
Information Technology, service-level agreements, and USCIS
contributions to the DHS working capital fund are prorated to each
office based on the number of authorized positions in those offices, so
that each office pays a proportionate share.
The allocation methods in the FY 2016/2017 review are in line with
FASAB's Standard 4 on managerial cost accounting concepts. This
fulfills the guideline for agencies to directly trace costs when
feasible and to either assign costs on a cause-and-effect basis or
allocate them in a reasonable and consistent way. Statement of Federal
Financial Accounting Standards (SFFAS) 4, No. 126.
c. Activities
In ABC, activities are the critical link between resources and cost
objects. Activities represent work performed by an organization. USCIS
allocates projected FY 2016/2017 operating costs (resources) to the
following eleven activities:
Inform the Public involves receiving and responding to
customer inquiries through telephone calls, written correspondence, and
walk-in inquiries. It also involves public engagement and stakeholder
outreach activities.
Perform Biometric Services involves the management of
electronic biometric information, background checks performed by the
Federal Bureau of Investigation (FBI), and the collection, use, and
reuse of collected biometric information to verify the identity of
individuals seeking immigration benefits.
Intake involves mailroom operations, data entry and
collection, file assembly, fee receipting, adjudication of fee waiver
requests, and file room operations.
Conduct TECS \40\ Check involves the process of comparing
information on applicants, petitioners, requestors, beneficiaries,
derivatives, and household members who apply for an immigration benefit
against various Federal Government lookup systems.
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\40\ In previous reviews, USCIS called the ``Conduct TECS
Check'' activity by different names, such as ``Conduct Interagency
Border Inspection System Checks (IBIS)'' or ``Conduct Treasury
Enforcement Communication System (TECS) Check.'' The system has
changed names, and now ``TECS'' is the actual system name and is no
longer an acronym.
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Records Management involves searching for and requesting
files; creating temporary and/or permanent individual files;
consolidating files; appending evidence submitted by applicants,
petitioners, and requestors to existing immigration files; retrieving,
storing, and moving files upon request; auditing and updating systems
that track the location of files; and archiving inactive files.
Make Determination involves adjudicating immigration
benefit requests; making and recording adjudicative decisions;
requesting and reviewing additional evidence; interviewing applicants,
petitioners, or requestors; consulting with supervisors or legal
counsel; and researching applicable laws and decisions on non-routine
adjudications.
[[Page 26914]]
Fraud Detection and Prevention involves activities
performed by the Fraud Detection and National Security Directorate in
detecting, combating, and deterring immigration benefit fraud and
addressing national security and intelligence concerns.
Issue Document involves producing and distributing secure
cards that identify the holder as a foreign national and also
identifies his or her immigration status and/or employment
authorization.
Management and Oversight involves activities in all
offices that provide broad, high-level operational support and
leadership necessary to deliver on the USCIS mission and achieve its
strategic goals.
Since the 2010 Fee Rule, USCIS added two activities to the fee
review.
Direct Costs directly support a specific immigration
benefit type. For instance, USCIS applies costs specific to
naturalization, including conducting naturalization ceremonies and
naturalization benefit requests.
Systematic Alien Verification for Entitlements (SAVE)
represents the cost of this program.\41\ SAVE is an intergovernmental
information-sharing program that helps Federal, state, and local
benefit-issuing agencies, institutions, and licensing agencies (such as
an individual state's department of motor vehicles) determine the
immigration status of benefit applicants to help these agencies ensure
that only those entitled to benefits or licenses receive them. Through
the SAVE program, USCIS enters into reimbursable agreements with
Federal, state, and local government agencies under the authority of
the Economy Act and the Intergovernmental Cooperation Act of 1968 for
those costs that can be directly assigned to SAVE. See generally 31
U.S.C. 1535; 31 U.S.C. 6501-6508, Public Law 97-258. These reimbursable
agreements recover only a portion of the total program cost.
Previously, USCIS treated SAVE as an overhead cost and did not consider
the amounts recovered in the reimbursable agreements in calculating the
costs of SAVE to be recovered by USCIS fees. USCIS has improved its
model by distinguishing SAVE from other overheads. This may enable
USCIS to examine SAVE reimbursable fees paid by federal, state and
local governments in the future.
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\41\ USCIS is required to offer an automated or other system to
verify the immigration status of applicants. Certain agencies
determining eligibility for a number of specified Federal public
benefits are required to use an automated or other such system to
verify the immigration status of applicants. 42 U.S.C. 1320b-7. The
automated verification system is entitled the Systematic Alien
Verification for Entitlements (SAVE) program. INS and USCIS have
refined and operated the SAVE program on a large scale for over 16
years.
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d. Activity Drivers and Activity Assignment
The fourth stage in the ABC process assigns activity costs to
specific immigration benefit requests (cost objects) using activity
drivers. For most activities, USCIS assigns activity costs to cost
objects based on the percentage of total projected volume because, for
these activities, similar time and effort are involved for each benefit
request. Unique activity drivers are used for two activities: Make
Determination and Perform Biometric Services.
USCIS allocates the Make Determination activity across immigration
benefit requests by projected adjudication hours. USCIS calculates
projected adjudication hours by multiplying projected volumes by
completion rates for most benefit types. Completion rates are the
average amount of time that employees take to adjudicate immigration
benefit requests.\42\ Generally, the more time spent adjudicating a
request, the more cost that gets assigned, and therefore, the higher
the fee. Please see Section VIII: Completion Rates for additional
information.
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\42\ Time here means the amount of time a USCIS immigration
service officer spends on an adjudication. This is different than
cycle time, the amount of time an applicant, petitioner, or
requestor spends waiting for an output.
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The Perform Biometric Services activity uses a direct activity
driver. All costs associated with this activity are assigned directly
to the biometric services fee.
Activity costs are allocated to immigration benefit requests by the
locations (service centers, field offices, etc.) that process them.
USCIS uses data from the USCIS Performance Reporting Tool that, among
other data points, include workload volumes, adjudication hours, and
the number of completed requests by field office location and
immigration benefit type. The Performance Reporting Tool also captures
and records information on biometrics, records management, and customer
service. For the FY 2016/2017 Fee Review, USCIS aligned its fee review
metrics with the Performance Reporting Tool metrics used in the FY 2015
Staffing Allocation Model to ensure organizational alignment and
consistency.
e. Cost Objects
Cost objects are the immigration benefit requests that USCIS
processes. USCIS calculates a separate fee for biometric services. The
costs for the biometric services fee are derived from the costs of the
Perform Biometric Services activity and a small amount of direct
costs.\43\ USCIS determines costs for most immigration benefit
requests, including those for asylum and refugee protection. The IEFA
costs of immigration benefit requests for which no revenue is recovered
are redistributed to other benefit requests in a prorated manner.
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\43\ For a quick reference of the immigration benefits that
currently require biometric services with the initial submission,
see Form G-1055, Fee Schedule, at http://www.uscis.gov/sites/default/files/files/form/g-1055.pdf.
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f. Exclusion of Temporary or Uncertain Costs Items and Programs
USCIS excludes from the fee calculation model the costs and revenue
associated with programs that are temporary by definition or where the
program may diminish or cease to exist because the program is
predicated on guidance only (and not preserved in regulations or
statute). This exclusion applies to: The Application for TPS, Form I-
821, proposed 8 CFR 103.7(b)(1)(i)(NN); Consideration of Deferred
Action for Childhood Arrivals, (DACA), Form I-821D; and Application for
Suspension of Deportation or Special Rule Cancellation of Removal
(Pursuant to Section 203 of Pub. L. 105-100) (Nicaraguan Adjustment and
Central American Relief Act (NACARA)), Form I-881, proposed 8 CFR
103.7(b)(1)(i)(QQ). These programs are excluded from the FY 2016/2017
Fee Rule Supporting Documentation and this rule.\44\
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\44\ For the purposes of this rule, DHS is including all
requests funded from the IEFA in the term ``benefit request'' or
``immigration benefit request'' although the form or request may not
be to request a benefit. For example, DACA is solely an exercise of
prosecutorial discretion by DHS and not an immigration benefit, but
would fit under the definition of ``benefit request'' solely for
purposes of this rule. For historic receipts and completion
information, see USCIS immigration and citizenship data available at
https://www.uscis.gov/tools/reports-studies/immigration-forms-data.
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DHS excludes projected revenue from expiring or temporary programs
in setting the fees required to support baseline operations due to the
uncertainty associated with such programs. For example, the Secretary
may designate a foreign country for TPS due to conditions in the
country that temporarily prevent the country's nationals from returning
safely, or in certain circumstances, where the country is unable to
handle the return of its nationals adequately. TPS, however, is a
temporary benefit, and
[[Page 26915]]
TPS designations may be terminated.\45\ INA section 244(b)(3)(B), 8
U.S.C. 1254a(b)(3)(B). Likewise, DACA allows certain individuals who
meet specific guidelines to request consideration of deferred action
from USCIS to not be placed into removal proceedings or removed from
the United States for a specified period unless terminated.\46\ The
DACA policy is an administrative exercise of prosecutorial discretion
and it is implemented at the discretion of the agency. For NACARA, the
eligible population will eventually be exhausted due to relevant
eligibility requirements, including the date by which an applicant was
required to have entered the United States. USCIS analyzes the distinct
costs associated with processing these benefit types and excludes these
costs from the ABC model. All fee revenue deposited into the IEFA is
pooled and collectively used to finance USCIS operations. USCIS also
responds to surges in customer demand for services by realigning
resources to cover the cost of processing. Consequently, USCIS is
capable of funding these programs even though their costs are not
included in the fee model.
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\45\ Even though some TPS designations have been in place for a
number of years, the Secretary could terminate them if the Secretary
determines that the designation criteria are no longer met.
\46\ See USCIS, Consideration of Deferred Action for Childhood
Arrivals (DACA), https://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca.
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DHS excludes the costs and revenue associated with these programs
because program eligibility is subject to the discretion of the
Department. Given this discretion, USCIS has excluded the cost and
workload of these programs from the fee review and does not propose to
allocate overhead and other fixed costs to these workload volumes. This
mitigates an unnecessary revenue risk, i.e., that USCIS will not have
enough revenue to recover full cost if the eligible populations
diminish or cease to exist. As in prior fee reviews, USCIS has excluded
both the cost and revenue associated with these programs from the fee
review. By excluding programs that are temporary by definition, for
which the population may diminish or cease to exist, DHS maintains the
integrity of the ABC model, better ensures recovery of full costs, and
mitigates revenue risk from unreliable sources.
2. Continuing Low Volume Reallocation From FY 2010/2011 Fee Rule
DHS uses its fee setting discretion to adjust certain immigration
request fees that would be overly burdensome on applicants,
petitioners, and requestors if set at recommended ABC model levels.
Historically, as a matter of policy, DHS has chosen to limit USCIS fee
adjustments for certain benefit requests to the weighted average fee
increase represented by the model output costs for fee-paying benefit
types. See 75 FR 33461.\47\ Any additional costs from these benefit
request types beyond this calculated weighted average increase figure
would be reallocated to other benefit types. In addition, as noted
above, fees for the other benefit types would also be calculated to
cover costs that are not directly supported by fees. This process is
known as ``Low Volume Reallocation.''
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\47\ This same methodology was used in the FY 2008/2009 Fee
Rule. 72 FR 4910.
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In the fee review for this proposed rule, the model output costs
identified a weighted average 8 percent cost increase across all fee-
paying benefit types. Accordingly, consistent with prior practice, DHS
proposes to limit the fee adjustments for certain benefit types to this
8 percent weighted average increase. These immigration benefit requests
do not receive any additional cost reallocation for fee waivers,
refugee, asylum or other programs. DHS does not believe that using the
calculated 8 percent weighted average increase figure as a basis for
fee increases for these benefit types would result in fees for other
benefit types that would be overly burdensome to the applicants,
petitioners or requestors.
DHS proposes to subject specific benefit types to the 8 percent
weighted average increase because the combined effect of cost, fee-
paying volume, and methodology changes since the last Fee Rule would
otherwise place an inordinate fee burden on individuals requesting
these types of benefits. For example, without Low Volume Reallocation,
the Petition to Classify Orphan as an Immediate Relative, Form I-600,
would have a fee of at least $2,258. DHS believes it would be contrary
to the public interest to impose a fee of this amount on an estimated
15,000 potential adoptive parents each year. Similar reasoning led to
the other forms chosen to be adjusted using Low Volume Reallocation.
For this reason, DHS proposes to subject these benefit types to the
calculated 8 percent weighted average increase. In other words,
consistent with past USCIS fee rules, DHS is proposing an 8 percent
increase for each of these benefit types, based on the calculated 8
percent weighted average increase across all fee-paying benefit types
as identified by the model.
DHS recognizes that charging less than the full cost of
adjudicating an immigration benefit request requires USCIS to increase
fees for other immigration benefit requests to ensure full cost
recovery. This complies with INA section 286(m), which permits fees to
cover those costs of providing applicants, petitioners, or requestors a
service or part of a service ``without charge.''
DHS proposes to apply the Low Volume Reallocation methodology to
the following USCIS forms:
Notice of Appeal or Motion, Form I-290B
Petition for Amerasian, Widow(er) or Special Immigrant, Form
I-360
Petition to Classify Orphan as an Immediate Relative, Form I-
600
Application for Advance Processing of an Orphan Petition, Form
I-600A
Petition to Classify Convention Adoptee as an Immediate
Relative, Form I-800
Application for Determination of Suitability to Adopt a Child
from a Convention Country, Form I-800A
Request for Action on Approved Form I-800A, Form I-800A,
Supplement 3
Petition for Qualifying Family Member of a U-1 Nonimmigrant
Form I-929
Application to File Declaration of Intention, Form N-300
Request for Hearing on a Decision in Naturalization
Proceedings, Form N-336
Application to Preserve Residence for Naturalization Purposes,
Form N-470.
3. Applying Cost Reallocation to Other Form Types
As described below, DHS also proposes to limit fee increases for
additional benefit types at the calculated 8 percent weighted average
increase, even though the potential fee increases for these benefit
types would not have imposed the same level of burden on affected
requestors as the benefit types described in the preceding section.
First, DHS proposes to increase the Application for Naturalization,
Form N-400, fee by the 8 percent weighted average increase described
above.\48\ As DHS stated in 2010, ``DHS has determined that the act of
requesting and obtaining U.S. citizenship deserves special
consideration given the unique nature of this benefit to the individual
applicant, the significant public benefit to the Nation, and the
Nation's proud tradition of welcoming new citizens.'' 75 FR 33461. This
rationale still holds
[[Page 26916]]
true. DHS believes that by limiting the adjustment of the
naturalization fee to the 8 percent weighted average increase, it would
reinforce these principles by encouraging more immigrants to naturalize
and fully participate in civic life. This proposal is also consistent
with other DHS efforts to promote citizenship and immigrant
integration.\49\
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\48\ See the 2016/2017 Fee Rule Supporting Documentation in the
rulemaking docket for an explanation of how the weighted average is
calculated.
\49\ As noted later in this preamble, this rule proposes an
option for naturalization applicants with family incomes greater
than 150% and not more than 200% of the Federal Poverty Guidelines
to pay a fee of $320 plus an additional $85 for biometric services,
for a total of $405.
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DHS also proposes to limit the adjustment of the fee for
Application for Provisional Unlawful Presence Waiver, Form I-601A, and
the Application for Employment Authorization, Form I-765. The current
Form I-601A fee was not established by the 2010/2011 Fee Rule because
it did not exist at that time. USCIS unfortunately has insufficient
data on Form I-601A volumes and completion rates with which to use its
fee calculation model to identify an appropriate fee with a sufficient
level of confidence. Therefore, DHS has decided that proposing a
weighted average increase at 8 percent of the current fee amount is
appropriate until sufficient data becomes available. DHS will consider
setting the fee for Form I-601A at the amount the model calculates if
sufficient data are collected before the final rule is published.
DHS also proposes to apply the same 8 percent weighted average
increase to the Form I-765 for humanitarian and practical reasons. Many
individuals seeking immigration benefits face financial obstacles and
cannot earn money through lawful employment in the United States until
they receive an Employment Authorization Document (EAD).
Finally, as noted above, in the 2010 fee rule, DHS held fee
increases for a number of benefit requests to the weighted average fee
increase for all fee-paying immigration benefits. 75 FR 33461. In this
rule, DHS proposes to not apply the 8 percent weighted average increase
to a subset of those benefit requests, both because DHS has better data
upon which to base proposed fees for those benefit requests, and
because DHS believes the calculated fee is appropriate. Therefore, DHS
no longer believes it is necessary to limit fee increases to the
weighted average for the following USCIS forms:
Application for Waiver of Grounds of Inadmissibility, Form I-
690
Waiver Forms, Forms I-191, I-192, I-193, I-212, I-601, I-602,
I-612. Proposed 8 CFR 103.7(b)(1)(i)(O), (P), (Q), (R), (AA), (BB),
(CC) & (EE).
Accordingly, the fees for these USCIS forms are proposed to be set
at the level calculated in the ABC model, with adjustments.
4. Reduced Fee for Application for Naturalization
DHS proposes to establish a three-level fee for the Application for
Naturalization, Form N-400. See 8 CFR 103.7(b)(1)(i)(AAA). First, as
explained earlier in this preamble, DHS is proposing a fee for Form N-
400 of $640, plus $85 for biometrics, for a total of $725. Id. Second,
no fee is charged to an applicant who meets the requirements of
sections 328 or 329 of the Act with respect to military service, or to
an applicant who applies for and receives a full fee waiver. Id. at
103.7(b)(1)(i)(AAA)(2)-(c)(2).\50\ Third, DHS proposes to permit
naturalization applicants with household incomes greater than 150
percent and not more than 200 percent of the Federal Poverty Guidelines
\51\ to pay a fee of $320 plus an additional $85 for biometrics, for a
total of $405. DHS has created a proposed new form, USCIS Form I-942,
Request for Reduced Fee, that would be filed with the N-400. The form
would provide a convenient guide for applicants to demonstrate that
their income meets the level required to pay the reduced fee. The
Paperwork Reduction Act section of this preamble provides information
on how to comment on the proposed form.
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\50\ As described elsewhere in this preamble, an applicant with
a household income at or below 150 percent of the Federal Poverty
Guidelines qualifies for a waiver of their entire fee under current
USCIS policy.
\51\ The guidelines are issued each year by the Department of
Health and Human Services and updated periodically in the Federal
Register under 42 U.S.C. 9902(2). The poverty guidelines are used as
an eligibility criterion for a number of Federal programs. For
further information on how the guidelines are used or how income is
defined, see ``Annual Update of the HHS Poverty Guidelines'' at 81
FR 4036 (Jan. 25, 2016).
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DHS proposes the new reduced fee option to limit potential economic
disincentives some eligible applicants may face when deciding whether
or not to apply for naturalization. The proposed reduced fee option for
low-income applicants supports the Administration's immigration
integration policies \52\ and the USCIS mission to support aspiring
citizens. Nevertheless, USCIS is funded mainly from fees and we must
collect a fee to recover at least some of the costs associated with
naturalization. DHS believes the reduced fee would help ensure that
those immigrants whose goal it is to apply for naturalization are not
unnecessarily limited by their economic means. DHS realizes that other
fee payers would be required to bear the cost of the reduced fee, but
believes the importance of naturalization justifies this slight shift
of burden.\53\
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\52\ See The White House Task Force on New Americans,
Strengthening Communities by Welcoming All Residents, at 28-29
(2015), available at https://www.whitehouse.gov/sites/default/files/docs/final_tf_newamericans_report_4-14-15_clean.pdf.
\53\ DHS previously stated that adjusting fee levels based on
income would be administratively complex and would require higher
costs to administer. See 75 FR 58971. Specifically, in 2010, DHS
stated that a tiered fee system would impose an unreasonable cost
and administrative burden, because it would require staff dedicated
to income verification and necessitate significant information
system changes to accommodate multiple fee scenarios. See id. DHS
will need to reprogram intake operations for Form N-400 to recognize
the new fee and documentation. Staff must be added to review the
income documentation provided to determine if the applicant
qualifies for the new fee. DHS has determined that the change
proposed here, because it applies only to Form N-400 and the act of
acquiring citizenship, is of sufficient value from a public policy
standpoint to justify USCIS incurring the additional administrative
and adjudicative burden.
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USCIS is uncertain exactly how many new N-400 applicants would be
eligible and apply for naturalization as a result of the reduced fee.
In addition, DHS has no reliable data indicating how demand for filing
an N-400 may change due to adjustments in the fee amount. Nonetheless,
research on barriers to naturalization indicates a correlation between
the N-400 filing fee and the number of applications submitted to USCIS.
As the Center for the Study of Immigrant Integration stated:
Some evidence of price sensitivity was shown when USCIS
increased the cost to naturalize from $400 to $595 (plus the costs
of biometrics) in the middle of 2007: the result was a surge of
applications just prior to the fee increase. As a result, there were
nearly 1.4 million naturalization applications filed in 2007 but
just over 500,000 in 2008.\54\
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\54\ Manuel Pastor & Justin Scoggins, Center for the Study of
Immigrant Integration, Citizen Gain: The Economic Benefits of
Naturalization for Immigrants and the Economy 20 (Dec. 2012),
available at http://dornsife.usc.edu/assets/sites/731/docs/citizen_gain_web.pdf.
In addition, USCIS analyzed the 2012 American Community Survey and
determined that 10 percent of new citizens who naturalized since 2000
reported incomes between 150 percent and 200 percent of the Federal
Poverty Guidelines.\55\ Independent university
[[Page 26917]]
research \56\ estimated that about 12 percent of adult lawful permanent
residents eligible to naturalize fell within the 150 to 200 percent of
the Federal Poverty Guidelines. By averaging the 10 percent and the 12
percent from the two data sources, USCIS estimates 11 percent of
average annual Form N-400 filings would be likely to qualify for the
lower fee. The average FY 2016/2017 Application for Naturalization
volume estimate is 821,500, excluding military naturalizations. USCIS
expects that an average of 90,365 filers, 11 percent of the 821,500,
would be eligible for the reduced fee of $405 (including the biometrics
fee).\57\ Assuming that all 90,365 would have paid the full fee of $725
for their Form N-400 and biometrics, this new N-400 fee would result in
approximately $28.9 million in foregone fee revenue associated with
adjudication of Form N-400. That amount of USCIS operating expenses
would be funded using fee revenue from other fee increases proposed in
this rule.
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\55\ USCIS analyzed immigrants who reported naturalization since
the year 2000. These represent people who recently became U.S.
citizens. Approximately 24.7% were eligible for a fee waiver based
on current criteria (2.2 million out of 8.9 million) because their
household income is below 150% of the federal poverty guidelines. A
further 10.3% (923,901 out of 8.9 million) would have been eligible
for a partial fee waiver, since their income falls between 150% and
200% of the federal poverty guidelines. Among immigrants who
reported naturalizing in 2011 (737,618), 10.4% or 77,003 immigrants
would have been eligible for a partial fee waiver.
\56\ See Manuel Pastor, University of Southern California,
Reducing Barriers to Citizenship: New Research and the Need for a
Partial Fee Waiver (Jan. 8, 2015), available at http://newamericanscampaign.org/wp-content/uploads/New-Research-on-Reducing-Barriers-to-Citizenship-1-8-15-Webinar-Powerpoint.pdf.
\57\ This is an estimate of the net impacts. Some who would have
filed and paid the full fee would now opt to pay the reduced fee.
Others who are eligible to seek a fee reduction based on income
level may also qualify for a Federal means tested benefit in their
state and thus qualify for a full fee waiver.
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5. Holding the Biometric Services Fee at Its Current Level
DHS proposes to hold the biometric services fee at its current
level of $85. Proposed and current 8 CFR 103.7(b)(1)(i)(C). While the
model calculated a biometric services fee of $75, DHS believes that the
importance of and uncertainty in the biometric services area justifies
holding that fee at $85.
DHS has broad statutory authority to collect biometric information
when such information is ``necessary,'' or ``material and relevant'' to
the administration and enforcement of the INA. See, e.g., INA secs.
103(a), 235(d)(3), 264(a); 8 U.S.C. 1103(a), 1225(d)(3), 1304(a). The
collection, use, and reuse of biometric data are integral to identity
management, excluding people with criminal backgrounds, minimizing
national security concerns, and maintaining program integrity. Over the
next few fiscal years the volume of requests for biometrics services,
as well as the costs associated with those services, such as fees paid
to the FBI for fingerprints and name checks, are uncertain. Therefore,
a moderate amount above current full cost recovery calculation is
justified to shield USCIS from that uncertainty.
In addition, DHS proposes to use its discretion in setting this fee
to hedge against potential rising programmatic costs which USCIS cannot
foresee or control. For example, new regulatory or statutory background
check requirements may be borne out of increased national security
concerns dictated by events or changing circumstances. For the same
reasons, DHS is also proposing to clarify regulations pertaining to
biometrics and the biometric services fee.
Current regulations provide both general authority for the
collection of biometrics in connection with immigration and
naturalization benefits as well as requirements specific to certain
benefit types.\58\ See 8 CFR 103.16(a). A related provision provides
that an applicant, petitioner, sponsor, beneficiary, or other
individual residing in the United States at the time of filing may be
required to appear for fingerprinting. See 8 CFR 103.2(b)(9). The
wording of the latter provision has resulted in questions and confusion
about DHS authority to require biometrics and the associated biometric
services fee beyond a case-by-case basis. While DHS believes its
current biometrics and biometrics fee collections are fully authorized,
DHS proposes changes to the latter provision to clarify its regulatory
authority to require and conduct biometrics-based identity and
background checks, and to collect the associated fees. In addition, DHS
is clarifying this section with regard to the use of the term
biometrics in place of the term fingerprints. DHS has been using the
term biometrics for several years in multiple contexts. See, e.g., 72
FR 4906 (Feb. 1, 2007) (discussing the proposed fee for immigration and
naturalization benefit application and petition and biometric service
processing activities and describing biometrics as fingerprints,
photographs, and signatures). The term ``biometrics'' is also used
throughout title 8 of the CFR. See, e.g., 8 CFR 103.7(b)(1)(i)(C),
103.16, 103.17, 204.310(a)(3)(ii), 204.312(e)(3)(ii), 209.1(b),
212.7(e)(1)(i), 204.312(e)(3)(ii), 214.2(w)(15), 245.21(b). Therefore,
DHS proposes to revise 8 CFR 103.2(b)(9) to clarify that any applicant,
petitioner, sponsor, beneficiary, or requestor, or individual filing a
request may be required to appear for biometrics collection or for an
interview. This requirement may be imposed upon individual notice or as
established in the applicable regulations or form instructions. See
proposed 8 CFR 103.2(b)(9). DHS is also making conforming edits in 8
CFR 103.16(a) to provide that an individual may be required to submit
biometric information by law, regulation, Federal Register notice or
the form instructions applicable to the request type or if required in
accordance with 8 CFR 103.2(b)(9). See proposed 8 CFR 103.16(a).
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\58\ See, e.g., 8 CFR 103.16(a), 204.2(a)(2) (requiring evidence
of the claimed relationship), 204.3(c)(3) (requiring
fingerprinting), 204.2(d)(2)(vi) (authorizing blood testing),
245a.2(d) (requiring photographs and a completed fingerprint card),
316.4(a) (requiring three photographs and fingerprinting).
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6. Continuing To Hold Refugee Travel Document Fee to the Department of
State Passport Fee
Consistent with U.S. obligations under Article 28 of the 1951
Convention Relating to the Status of Refugees,\59\ USCIS proposes to
continue to charge a fee for Refugee Travel Documents similar to the
charge for a U.S. passport book. See 75 FR at 58972 (discussing Article
28 standards for assessing charges for a Refugee Travel Document).
Under this proposal, the fee for an Application for Travel Document,
Form I-131, would be $575 for advance parole and any other travel
document, as calculated by the fee model. See proposed 8 CFR
103.7(b)(1)(i)(M)(3). However, the current fees for Form I-131 for a
Refugee Travel Document would be maintained at $135 for adults and $105
for children under the age of 16 years. These fees are the same as the
Department of State (DOS) passport book fees,\60\ plus biometrics if
the applicant is between 14 and 79 years of age. See proposed 8 CFR
103.7(b)(1)(i)(M)(1)-(2).
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\59\ The United States is party to the 1967 Protocol Relating to
the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6224, 606 U.N.T.S.
267 (1968), which incorporates articles 2 through 34 of the 1951
Convention. The United States is not party to the 1951 Convention.
See Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 169 n.19
(1993) (``Although the United States is not a signatory to the
Convention itself, in 1968 it acceded to the United Nations Protocol
Relating to the Status of Refugees, which bound the parties to
comply with Articles 2 through 34 of the Convention as to persons
who had become refugees because of events taking place after January
1, 1951.'').
\60\ The Refugee Travel Document fees are the same as the sum of
the United States passport book application fee plus the additional
execution fee that DOS charges for first time applicants.
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[[Page 26918]]
7. Holding the Fee for a Petition by Entrepreneur To Remove Conditions
(Form I-829) at Its Current Level
DHS proposes to hold the fee for the Petition by Entrepreneur to
Remove Conditions, Form I-829, at its current level of $3,750. While
the fee model calculated a fee of $2,353, DHS proposes to maintain the
current fee for such petitions. Because of the recent and continued
growth and maturation of the EB-5 Program, the costs over the next few
fiscal years are uncertain because the final parameters of the program
are still evolving, such as the number of employees and facilities
necessary to carry out the enhanced review of EB-5 filings and site
visits. This makes it uncertain whether EB-5 related fees will fully
fund EB-5 program activities.
The EB-5 program was created by Congress in 1990 to stimulate the
U.S. economy through job creation and capital investment by foreign
investors. The EB-5 ``regional center program'' was later added in 1992
by the Departments of Commerce, Justice, and State, the Judiciary, and
Related Agencies Appropriations Act, 1993. Public Law 102-395, sec.
610, 106 Stat 1828 (Oct. 6, 1992). The EB-5 immigrant classification
allows qualifying individuals, and any accompanying or following to
join spouses and children, to obtain lawful permanent resident (LPR)
status if the qualifying individuals have invested, or are actively in
the process of investing, $1 million in a new commercial enterprise.
See INA section 203(b)(5)(A) and (C), 8 U.S.C. 1153(b)(5)(A) and (C).
To qualify, the individual's investment must benefit the U.S. economy
and create full-time jobs for 10 or more qualifying employees. INA
section 203(b)(5)(A)(ii), 8 U.S.C. 1153(B)(5)(A)(ii). If the investment
is in a Targeted Employment Area (TEA) (i.e., a rural area or an area
that has unemployment of at least 150% of the national average), the
required capital investment amount is $500,000 rather than $1 million.
INA section 203(b)(5)(C)(ii), 8 U.S.C. 1153(b)(5)(C)(ii); 8 CFR
204.6(f)(2). Entrepreneurs may meet the job creation requirements
through the creation of indirect jobs by making qualifying investments
within a new commercial enterprise associated with a regional center
approved by USCIS for participation in the regional center program. INA
section 203(b)(5), 8 U.S.C. 1153(b)(5); 8 CFR 204.6(e) and (m)(7).
To increase its support of Congress's objective in establishing the
program, USCIS has recently implemented several changes to refine and
improve the delivery, security and integrity of the EB-5 Program.\61\
USCIS established the Immigrant Investor Program Office (IPO) in
Washington, DC at USCIS headquarters in 2012. Since that time, IPO has
regularly added staff positions to focus both on managing the program
and ensuring identification of fraud, national security, or public
safety concerns within the program. In addition, USCIS plans to conduct
more site visits to regional centers and associated commercial
enterprises to verify information provided in regional center
applications and investor petitions and to clarify its EB-5
regulations. DHS proposes to keep the Form I-829 at the current fee,
above the full cost recovery calculation,\62\ to shield USCIS against
potential but likely rising costs. DHS believes the fee would still be
set at an appropriate level and that it would not be overly burdensome
to the Form I-829 filers, particularly considering the size of the
investment required to participate in the program.
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\61\ USCIS is committed to strengthening and improving the
overall administration of the EB-5 Program. The EB-5 Program
encompasses Forms I-526, I-829, I-924, and I-924A. The cost baseline
includes $16.0 million in FY 2016 and $15.9 million in FY 2017 for
additional staff that would comprise a specialized team of forensic
auditors, compliance officers, and other staff, whose primary focus
would be to ensure regulatory compliance. This would directly
contribute to the integrity of the program by providing the USCIS
Investor Program Office with employees who have specialized
knowledge required to adjudicate these benefits. In addition to
enhanced staffing, USCIS would make additional IT systems
investments to make case processing more efficient. USCIS would add
$1.7 million in FY 2016 and $1.8 million in FY 2017 to improve the
case management system and further develop its risk management
strategy to ensure program compliance.
\62\ If DHS had decided to adjust the fee consistent with the
adjustment that DHS made to most other fees, the proposed fee would
have decreased to $3,280. The proposed fee would have been higher
than the model output because of Cost Reallocation. Other fees would
also have been adjusted accordingly.
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B. Changes in the FY 2016/2017 Fee Review
1. Interim Benefits
The FY 2016/2017 Fee Review isolates the workload volume and fee-
paying percentage of Applications for Employment Authorization, Forms
I-765, and Applications for Travel Document, Forms I-131, that are not
associated with Applications to Register Permanent Residence or Adjust
Status, Forms I-485. This change helps DHS to more accurately calculate
the fees necessary for cost recovery for all three benefit types.
Usually, the favorable adjudication of an immigration benefit
request is necessary before the beneficiary will receive ancillary
benefits such as work and travel authorization. That is, USCIS only
grants those ancillary benefits after, or at the same time as, it
grants the underlying immigration status or benefit. In some
situations, however, an individual may become entitled to a benefit
because a case is pending adjudication. For example, a person who
applies for adjustment of status would, in certain instances, be able
to obtain work and/or travel authorization based on the pending
immigration benefit request. 8 CFR 274a.12(c)(9). When this occurs,
these ancillary benefits are referred to generally as ``interim
benefits.'' \63\
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\63\ The following case types are subject to appeal and
frequently have an associated application for adjustment of status,
thereby possibly warranting interim benefits: Immigrant Petition for
Alien Workers, Form I-140; Petition for Amerasian, Widow(er) or
Special Immigrant, Form I-360; Application for Permission to Reapply
for Admission into the United States after Deportation or Removal,
Form I-212; and Application for Waiver of Ground of Inadmissibility,
Form I-601. Interim benefits may also be derived from an Application
for Temporary Protected Status, Form I-821. DHS proposes free
interim benefits in this rule only associated with a pending
Application to Register Permanent Residence or Adjust Status, Form
I-485.
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DHS currently permits applicants who file and pay the required fee
for an Application to Register Permanent Residence or Adjust Status,
Form I-485, to submit an Application for Employment Authorization, Form
I-765, and/or an Application for Travel Document, Form I-131, without
paying an additional fee. See 8 CFR 103.7(b)(1)(i)(M)(4) & (HH).
Applicants may file Form I-765 and/or Form I-131 concurrently with Form
I-485. Alternatively, they may also file these forms after USCIS
accepts their Form I-485, but while the Form I-485 is still pending.
In the FY 2016/2017 Fee Review, USCIS determined the workload
volume and fee-paying percentage of Forms I-765 and Forms I-131 that
are not associated with Forms I-485. This methodology change enables
USCIS to derive a fee-paying percentage for standalone Forms I-765 and
Forms I-131, meaning those forms not filed concurrently with a Form I-
485. By isolating stand-alone interim benefit customers from those
concurrently filing Form I-485, USCIS can more accurately assess fee-
paying percentages, fee-paying volumes, and fees for all three benefit
types. As a result, DHS is confident that the fees for these three
benefit types proposed in this rule are consistent with the ABC
methodology for full cost recovery.
[[Page 26919]]
2. Form I-485 Fee for Child Under 14, Filing With Parent
USCIS proposes a fee of $750 for a child under the age of 14 years
when filing Form I-485 concurrently with the application of a parent
seeking classification as an immediate relative of a U.S. citizen, a
family-sponsored preference immigrant, or a family member accompanying
or following to join a spouse or parent under sections 201(b)(2)(A)(i),
203(a)(2)(A), or 203(d) of the INA, 8 U.S.C. 1151(b)(2)(A)(i),
1153(a)(2)(A), or 1153(d). Proposed 8 CFR 103.7(b)(1)(i)(U)(2). For
this review, the proposed fee of $750 is the model output cost for a
Form I-485 filed with Form I-131. Children under the age of 14 cannot
work in the United States. These children, however, can travel. This is
$390 less than the proposed fee of $1,140 for adults. Proposed 8 CFR
103.7(b)(1)(i)(U)(1).
Currently, the fee is $985 for an adult and $635 for a child under
the age of 14 filing with a parent ($350 less than the fee for adults).
8 CFR 103.7(b)(1)(i)(U). In the 2010 Fee Rule, USCIS calculated the
$635 fee outside of the model due to a lack of available data. The FY
2016/2017 Fee Review calculated the proposed $750 fee using actual data
for each of the elements of the model. Therefore, the proposed fee for
Form I-485 for a child under the age of 14 filing with a parent
complies more closely with the ABC methodology for full cost recovery
at a level that tracks its relative burden.
USCIS proposes to remove the provision at 8 CFR
103.7(b)(1)(i)(U)(iii) that states, ``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.'' See proposed 8 CFR 103.7(b)(1)(i)(U). This
sentence is unnecessary because 8 CFR 103.7(b)(1)(i)(U)(ii) already
requires that a child must adjust as a derivative to pay the lesser
fee. See INA section 203(d), 8 U.S.C. 1153(d). This proposed revision
is a clarifying change to remove a redundancy in the regulatory
language; it would have no substantive effect.
3. One Fee for a Genealogy Records Request
USCIS has included the genealogy fees in the FY 2016/2017 IEFA fee
review. The USCIS genealogy program processes requests for historical
records of deceased individuals. See Final Rule, Establishment of a
Genealogy Program, 73 FR 28026 (May 15, 2008). Before creating a
genealogy program, USCIS processed the requests as Freedom of
Information Act (FOIA) request workload, which resulted in delays. See
Proposed Rule, Establishment of a Genealogy Program, 71 FR 20357-8
(Apr. 20, 2006). DHS created the genealogy program to reduce delays for
these requests. At the time, USCIS averaged 10,000 such requests over
four years, see id., and USCIS expected the workload to increase to
26,000 a year with the new program, see 71 FR 20361. USCIS determined
that genealogy fees would range between $16 and $55. See 71 FR 20362.
These proposed fees were based on projected volume and full cost of the
program. Id. After considering the comments received on the proposed
genealogy rule, the costs of providing this service, OMB Circular A-25
guidelines, and the fees charged for similar services, DHS set the fees
for Forms G-1041 at $20 and G-1041A at $20 or $35 (depending on the
format requested) in the final rule. 73 FR 28028; 8 CFR
103.7(b)(1)(i)(E)-(F). Requestors use the Genealogy Records Request,
Form G-1041A, to obtain copies of USCIS historical records that may
assist them in conducting genealogical research. Requestors use the
Genealogy Index Search Request, Form G-1041, to request an index search
of USCIS historical records.
The current genealogy program fees were not established based on
the projected full cost of operating the genealogy research and
information services of USCIS, although that was permitted by the
authorizing law. See INA section 286(t)(1), 8 U.S.C. 1356(t)(1).\64\ At
the time, USCIS did not have clearly segregated records of the full
cost of operating its genealogy research and information services, and
DHS has not since adjusted the genealogy program fees. But after seven
years of operating the program, DHS now has reliable data to determine
the new fees. USCIS has thus incorporated the genealogy records
requests fees in the comprehensive costs recovery fee model with the
aim to simplify the genealogy fee structure.
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\64\ The statute requires genealogy program fees to be deposited
as offsetting collections into the IEFA and that the fees for ``such
research and information services'' may be set at a level that will
ensure the recovery of the full costs of providing all such
services. INA sec. 286(t)(1), 8 U.S.C. 1356(t)(1).
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Current regulations state that the Form G-1041A fee is $20 for each
file copy from microfilm and $35 for each hard copy. In some cases, the
requestor may be unable to determine the fee, because the requestor
will have a file number obtained from a source other than USCIS and
therefore not know whether the format of the file is microfilm or
paper. In such cases, individuals may provide the lesser $20 amount and
if USCIS discovers the relevant file is a paper file, USCIS will notify
the requestor to remit an additional $15. In addition, USCIS will
refund the records request fee only when the agency is unable to locate
the file previously identified in response to the index search request.
See 8 CFR 103.7(b)(1)(i)(F).
DHS proposes to charge a single $65 fee for Form G-1041A. See
proposed 8 CFR 103.7(b)(1)(i)(F). Under the ABC model, USCIS projected
the cost of the forms G-1041 and G-1041A to be $46 each. The cost is
based on the projected volumes and costs of the genealogy program. The
projected costs include a portion of Lockbox costs, genealogy
contracts, and a portion of costs related to the division that handles
genealogy, FOIA and similar USCIS workloads. The proposed $65 fee is
based on the ABC model output, plus an additional $19 to recover the
applicable administrative costs associated with funding these services,
such as the USCIS Librarian and other genealogy research and
information services.\65\ Because the INA contains a separate fee
setting authorization for the genealogy program to recover the full
costs of providing all genealogy research and information services, DHS
does not propose to adjust the ABC model output for genealogy fees
using the cost reallocation methodology that was used to adjust the
other fees for which the model output was not used. See INA section
286(t), 8 U.S.C. 1356(t). Administrative costs, such as the Management
and Oversight activity cost, range from $33 to $426 for other
immigration benefit fees. Had USCIS included all such costs in the
proposed genealogy fees, it would have added at least $141 to the
proposed genealogy fees. DHS proposes to add only $19 to the model
output for estimated applicable costs for a total proposed fee of $65.
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\65\ The Cost Reallocation amount is $18. The additional $1
results from rounding the proposed fee to the nearest $5 increment.
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4. Dishonored Payments and Failure To Pay the Biometrics Services Fee
DHS proposes to amend the regulations regarding how USCIS will
treat a benefit request accompanied by fee payment (in the form of
check or other financial instrument) that is subsequently returned as
not payable. Proposed 8 CFR 103.2(a)(7)(ii). DHS also proposes changes
to provisions governing non-payment of the biometric service fee.
Proposed 8 CFR 103.17(b).
[[Page 26920]]
Each of these proposed changes is described below.
Current regulations provide that when a check or other financial
instrument used to pay a filing fee is subsequently returned as not
payable, the remitter will be notified and requested to pay the filing
fee and associated service charge within 14 calendar days, without
extension. If the benefit request is pending and these charges are not
paid within 14 days, the benefit request will be rejected as improperly
filed.\66\ See 8 CFR 103.2(a)(7)(ii). In addition, a receipt issued by
a DHS officer for any remittance will not be binding upon DHS if the
remittance is found uncollectible, and legal and statutory deadlines
will not be deemed to have been met if payment is not made within 10
business days after notification by DHS of the dishonored form of
payment. See 8 CFR 103.7(a)(2). Finally, if a benefit request is
received by DHS without the correct biometric service fee, DHS will
notify the applicant of the deficiency and take no further action until
payment is received. 8 CFR 103.17(b)(1). Failure to submit the correct
biometric service fee within the time allotted in the notice will
result in denial of the benefit request. Id. In accordance with these
provisions, when a payment is returned as non-payable, USCIS places the
immigration benefit request on hold and suspends adjudication. If a
check is dishonored or payment otherwise fails, USCIS assesses a $30
charge and pursues the unpaid fee and penalty using administrative debt
collection procedures. If the biometrics services fee was required and
is missing, USCIS generally provides the filer 30 days to correct the
payment. If payment is made within the allotted time, USCIS resumes
processing the benefit request. If the filer does not correct the
payment, USCIS rejects the filing. If the biometric fee is not paid,
USCIS considers the benefit request as abandoned.
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\66\ By contrast, DHS immediately rejects any application or
petition submitted without a fee payment instrument. See 8 CFR
103.2(a)(1) (``Each benefit request or other document must be filed
with fee(s) as required by regulation. Benefit requests which
require a person to submit biometric information must also be filed
with the biometric service fee in 8 CFR 103.7(b)(1), for each
individual who is required to provide biometrics.''); 8 CFR
103.2(a)(7)(i) (``A benefit request which is not signed and
submitted with the correct fee(s) will be rejected.'').
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DHS proposes to eliminate the three rules requiring that cases be
held while deficient payments are corrected. See proposed 8 CFR
103.2(a)(7)(ii), 103.7(a)(2), 103.17(b). As a practical matter, USCIS
clears payment checks through the Automated Clearing House (ACH) by
converting checks to electronic payments. Because USCIS converts checks
into ACH payments, there is currently no or very little delay before
USCIS knows whether the check is valueless. DHS is proposing that USCIS
will not begin processing the benefit request until the payment has
cleared. DHS anticipates that the proposed change would reduce the
USCIS administrative costs for holding and tracking immigration benefit
requests with rejected payments. This change would streamline USCIS'
process for handling immigration benefit requests when payments are
returned as not payable or do not include the required biometric
services fee.
This proposal further recognizes that a fee is a fundamental aspect
of the benefit request filing. For example, under current 8 CFR
103.2(a)(7)(ii), an H-1B cap-subject petition \67\ that was submitted
with a check that was dishonored would be able to preserve its place in
the lottery as long as the petitioner paid the fee and the
aforementioned $30 charge within 14 days.\68\ Under proposed 8 CFR
103.2(a)(7)(ii), an H-1B cap-subject petition that is submitted with a
check that is dishonored would be rejected and the receipt date would
not be retained. By providing a 14-day correction window for dishonored
checks, current regulations permit a benefit request paid with a
dishonored payment instrument to secure a place in line ahead of a
benefit request that was accompanied by a proper payment. DHS believes
that this result is unfair, particularly because a rejected applicant,
petitioner, or requestor may complete a new application and refile it
immediately with proper payment.
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\67\ Congress has established limits on the number of temporary
workers who may be granted H-1B nonimmigrant status each fiscal year
(commonly known as the ``H-1B cap''). See INA section 214(g), 8
U.S.C. 1184(g). Due to the historically high demand for cap-subject
H-1B workers, the H-1B cap usually is reached within days of the
opening of the H-1B filing period for a new fiscal year.
\68\ USCIS employs a random selection process after announcing a
final date on which it will receive H-1B petitions. USCIS refers to
this day as the ``final receipt date.'' See 8 CFR
214.2(h)(8)(ii)(B). All petitions submitted properly prior to or on
the ``final receipt date'' undergo a random selection process to
determine which petitions can be processed to completion and, if
otherwise eligible, which beneficiaries are able to receive a new H-
1B visa number.
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DHS is also proposing minor changes to this same provision to
clarify when USCIS would consider a benefit request received and when
USCIS would reject a benefit request. Proposed 8 CFR 103.2(a)(7)(i)-
(ii). Currently, numerous regulations address filing requirements for
different benefits, including rejection criteria.\69\ To ensure clarity
among these numerous regulations, DHS proposes to delete the reference
to parts 204, 245, and 245a, and insert in its place a corresponding
revision to 8 CFR 103.2(a)(7)(ii)(C) providing that a benefit request
would be rejected if it is not, among other things, filed in compliance
with the regulations governing the filing of the specific application,
petition, form, or request. Finally, DHS proposes to address the
possibility that special rules may apply for paying fees at a
Department of Homeland Security office located outside of the United
States. We propose to clarify fees paid in person overseas must be made
payable in accordance with the guidance specific to the applicable U.S.
Government office when submitting it. Proposed 8 CFR 103.7(a)(2).
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\69\ Current 8 CFR 103.2(a)(7)(i) states, in part, ``[e]xcept as
provided in 8 CFR parts 204, 245, or 245a, a benefit request will be
considered received by USCIS as of the actual date of receipt at the
location designated for filing such benefit request whether
electronically or in paper format.'' 8 CFR 245.2(a)(2) requires a
current priority date for proper filing, 8 CFR 245a.2(e) permits
receipt at a Qualified Designated Entity as opposed to a USCIS
office, and 8 CFR 204.5(a) provides that a petition is considered
properly filed only if it is accompanied by any required individual
labor certification. In addition, regulations specific to a given
benefit request produce filing requirements beyond those required
under 8 CFR 103.2. See, e.g., 8 CFR 212.7(e)(5)(ii) (providing
additional filing requirements for an application for a provisional
unlawful presence waiver).
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5. Refunds
DHS proposes a minor change in the provision regarding USCIS fee
refunds. See 8 CFR 103.2(a)(1) (providing that filing fees and
biometric service fees are non-refundable.).\70\ In general, and except
for a premium processing fee under 8 CFR 103.7(e)(2)(i),\71\ USCIS does
not refund a fee regardless of the decision on the immigration benefit
[[Page 26921]]
request. USCIS will refund a fee if the agency determines that an
administrative error occurred resulting in the incorrect collection of
a fee. Examples of USCIS errors include:
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\70\ USCIS is proposing no changes with regard to the
prohibitions on refunds of a Notice of Appeal or Motion (Form I-
290B) in 8 CFR 103.3(a)(2), which provide that the fee paid with an
appeal filed too late or by a person or entity not entitled to file
it will not be refunded regardless of the action taken. See also 8
CFR 103.5(a)(iii)(B) (requiring a motion to reopen to be accompanied
by a nonrefundable fee as set forth in 8 CFR 103.7) (emphasis
added). Likewise, no changes are proposed to the prohibition on
refunds for a Genealogy Index Search Request (Form G-1041), proposed
8 CFR 103.7(b)(1)(i)(E), the limited refunds for a Genealogy Records
Request (Form G-1041A), proposed 8 CFR 103.7(b)(1)(i)(F), or no
refund of the DCL System Costs Fee. 8 CFR 103.7(b)(ii)(A).
\71\ USCIS automatically refunds the fee for a Request for
Premium Processing (Form I-907) if USCIS has not reached a final
decision (approval, denial, notice of intent to deny, or request for
evidence) or opened an investigation relating to the benefit request
for which premium processing was requested within 15 days of its
receipt. 8 CFR 103.7(e)(2). No changes are proposed to that
provision.
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Unnecessary filings. Cases in which USCIS (or DOS in the
case of an immigration benefit request filed overseas) erroneously
requests that an individual file an unnecessary form along with the
associated fee; and
Accidental payments. Cases in which an individual pays a
required fee more than once or otherwise pays a fee in excess of the
amount due and USCIS (or the DOS in the case of an immigration benefit
request filed overseas) erroneously accepts the erroneous fee.
DHS is proposing that 8 CFR 103.2(a)(1) be revised to provide that
fees are ``generally'' not refunded. See proposed 8 CFR 103.2(a)(1).
This would address concern that the current regulatory text does not
explicitly permit refunds at DHS discretion. DHS currently grants such
refunds because as electronic filings and associated electronic
payments have increased, there has been an increase in the number of
erroneous payments where refunds are appropriate. For example, an
applicant may be charged twice in error due to technical issues related
to the specific device, software, or internet connection used to pay
the fee. In such a case, if the request is not rejected for an
erroneous payment, a refund may be appropriate. DHS is proposing to
continue the practice of providing these refunds in limited
circumstances where refunds are justified. Applicants would continue to
request refunds by calling the USCIS customer service line or
submitting written requests to the office having jurisdiction over the
relevant filing.
C. Fee-Related Issues Noted for Consideration
DHS has identified a number of issues that do not affect the 2016/
2017 Fee Review but which, for a variety of reasons, merit some
discussion. No changes are proposed related to the issues discussed in
this section. USCIS may discuss these issues in future biennial fee
reviews or in conjunction with other USCIS Fee Rules. DHS welcomes
comments on all facets of the 2016/2017 Fee Review, this proposed rule,
and USCIS fees in general, regardless of whether changes have been
proposed here.
1. Premium Processing
USCIS is proposing no change to premium processing fees or
regulations but notes it here for consideration due to stakeholder
interest, past comments, and correspondence on the subject. Section
286(u) of the INA, 8 U.S.C. 1356(u), authorizes DHS to establish and
collect a fee for a premium processing service for employment-based
petitions and applications. Revenue from premium processing fees fund
the costs associated with providing the premium processing service, as
well as infrastructure improvements in the adjudications and customer
service processes.\72\
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\72\ Premium processing fees are paid in addition to the regular
form fee. For example, individuals would pay the proposed $700 fee
for a Form I-140 under this rule, plus $1,225 for premium
processing. Premium processing prioritizes the applicable
application or petition for adjudication. The additional fee permits
the devotion of specific resources to resolving that immigration
benefit request.
---------------------------------------------------------------------------
Congress set the premium processing fee at $1,000 and authorized
USCIS to adjust the fee for inflation, as determined by the Consumer
Price Index (CPI). USCIS adjusted the premium processing fee by using
the CPI in the 2010 Fee Rule to $1,225. See 75 FR 58979; 8 CFR
103.7(b)(1)(i)(RR). Because projected premium processing revenue is
sufficient to cover the projected costs of providing the premium
service and other permissible infrastructure investments, USCIS is
proposing no change to the premium processing fee. DHS is not barred
from increasing the premium processing fee outside of rulemaking should
circumstances require it.
DHS also notes that commenters regularly request that DHS: Extend
premium processing beyond the limits of section 286(u) to other
immigration benefit requests. See 75 FR 58978. The FY 2016/2017 Fee
Review did not analyze the potential effect of premium processing for
other forms. Congress established the premium processing fee at an
amount it determined to be appropriate and permitted USCIS to increase
it based on inflation. Id. USCIS has not incurred any operating
deficits as a result of the amount of that fee. These fees more than
cover the costs of providing premium processing for the associated
benefits. Nevertheless, USCIS has many years' experience in processing
certain employment-based cases using premium processing. It would be
very difficult to estimate the staff, resources, and costs necessary to
ensure the processing of additional benefit types within a certain time
frame, especially when those cases may require other types of
background checks, interviews and additional steps that USCIS does not
generally control. Expanding the premium processing program would
require USCIS to estimate the costs of a service that does not
currently exist with sufficient confidence that it can deliver the
service promised and not impair service in other product lines. To
study a potential new premium processing program would require the
devotion of considerable resources. Thus, DHS proposes no extension of
premium processing beyond its current usage. Comments, however, are
welcome on that subject.
USCIS currently offers premium processing to business customers
filing: A Petition for Nonimmigrant Worker, Form I-129, and an
Immigrant Petition for Alien Worker, Form I-140, in certain visa
classifications. In the 2007 and 2010 Fee Rules, USCIS indicated that
it would dedicate premium processing fee revenue for transformation
activities.\73\ At that time, projected annual premium processing
revenues and annual transformation investment costs were roughly equal.
Since that time, the projected lifecycle costs of the transformation
investment, which now includes USCIS' electronic immigration system,
have decreased, whereas demand for USCIS premium processing services
has grown, resulting in an imbalance between revenue and spending.
---------------------------------------------------------------------------
\73\ Transformation is an agency-wide effort to transition the
agency from a fragmented, paper-based operational environment to a
centralized environment facilitating electronic processing of
requests for immigration benefits through the USCIS electronic
immigration system (ELIS). This investment is a large-scale, complex
undertaking to modernize USCIS business processes using information
technology-enabled re-engineering. ELIS will employ the types of
online customer accounts used in the private sector to manage
transactions and track activities while helping USCIS enforce and
administer the immigration laws. The revised processes, enabled by
ELIS, will help USCIS meet customer expectations for on-demand
information and immediate real-time electronic service over the
Internet.
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In the FY 2016/2017 Fee Review, USCIS identified $79.3 million in
additional costs to be funded through premium processing fee revenue,
thereby reducing the costs that USCIS must recover through its standard
(non-premium) immigration benefit request fees. Consistent with INA
section 286(u), 8 U.S.C. 1186(u), DHS intends to use premium processing
revenue to pay for the salaries of immigration services officers that
process this workload, associated supervisory and support staff, and
associated non-personnel costs. Premium processing revenue will also be
used to fund the salaries and benefits costs for Office of
Transformation Coordination staff that manage USCIS' electronic
immigration system and transformation investment.
[[Page 26922]]
USCIS also identified additional costs for staff adjudicating requests
for premium processing service, transformation-related expenses, and
infrastructure investments being made to enhance the adjudication
process and customer service, that the agency intends to fund with
premium processing fee collections instead of continuing to use general
filing fees.
2. Accommodating E-Filing and Form Flexibility
DHS has endeavored, as it did in the 2010 fee rule, to propose fees
based on form titles instead of form numbers to avoid prescribing fees
in a manner that could undermine the transformation process. See
proposed 8 CFR 103.7(b)(1). Form numbers are included for informational
purposes but are not intended to restrict the ability of USCIS to
collect a fee for a benefit request that falls within the parameters of
the adjudication for which the fee is promulgated. As USCIS modernizes
its processes and systems to allow more people to file applications
online, the agency may collect fees for requests that do not have a
form number or do not have the same form number as described in
regulations. This could occur, for example, if USCIS developed an
online version of a request that individuals often submit with
applications for employment authorization. In this situation, USCIS may
find it best to consolidate the two requests without separately
labelling the different sections pursuant to the relevant form numbers.
DHS would still collect the required fee for the underlying benefit
request as well as the request for employment authorization, but the
actual online request would not necessarily contain form numbers
corresponding to each separate request.
Likewise, if USCIS determines that efficiency and customer service
would be improved by breaking paper Form I-131 into separate paper
forms (for instance, USCIS could institute a separate form and form
number for advance parole, humanitarian parole, parole in place,
refugee travel documents, reentry permits, or boarding documents),
USCIS could do so and continue to charge the Form I-131 fee that is
included in this rule. This structure permits USCIS to change forms
more easily without having to perform a new fee study each time the
agency chooses to do so.
3. Fee Waivers
USCIS may waive the fee for certain immigration benefit requests
when the individual requesting the benefit is unable to pay the fee.
See 8 CFR 103.7(c). To request a fee waiver, the individual must submit
a written waiver request for permission to have their benefit request
processed without payment. The waiver 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. See 8 CFR 103.7(c)(2). There is no
appeal of the denial of a fee waiver request. See id. Before 2007,
USCIS could waive any fee, even where the fee waiver would be
inconsistent with the underlying benefit request. For example, prior to
2007, USCIS could waive fees for companies seeking to sponsor foreign
workers; individuals seeking status based on substantial business
investments; or individuals seeking to sponsor foreign relatives to
whom the sponsors must provide a financial safety net. See 72 FR 4912.
Since 2007, however, DHS has limited the USCIS fees that may be waived
in 8 CFR 103.7(c)(3) based on the general premise that fee waivers must
be consistent with any financial considerations that apply to the
status or benefit sought. See 8 CFR 103.7(c)(1)(ii).
Following the 2010 Fee Rule, USCIS also issued guidance to the
field to streamline fee waiver adjudications and make them more
consistent among offices and form types nationwide. See Policy
Memorandum, PM-602-0011.1, Fee Waiver Guidelines as Established by the
Final Rule of the USCIS Fee Schedule; Revisions to Adjudicator's Field
Manual (AFM) Chapter 10.9, AFM Update AD11-26 (Mar. 13, 2011) (``Fee
Waiver Policy''). This guidance clarifies what measures of income can
be used and the types of documentation that are acceptable for
individuals to present as demonstration that they are unable to pay a
fee when requesting a fee waiver. In June 2011, USCIS issued the
Request for Fee Waiver, Form I-912, which is an optional standardized
form with instructions that can be used to request a fee waiver in
accordance with the fee waiver guidance.\74\ USCIS previously engaged
in a holistic analysis of the individual's finances to determine
inability to pay. See, e.g., William R. Yates, Field Guidance on
Granting Fee Waivers Pursuant to 8 CFR 103.7(c), dated March 4, 2004.
Under the fee waiver guidance, USCIS established a streamlined process
under which it will usually waive the entire fee and the biometric
services fee for forms listed in 8 CFR 103.7(c)(3) for applicants who:
---------------------------------------------------------------------------
\74\ The form and its instructions may be viewed at http://www.uscis.gov/i-912.
Are currently receiving a means-tested benefit;
Have household income at or below 150 percent of the
Federal poverty level; or
Are experiencing extreme financial hardship such as
unexpected medical bills or emergencies. AFM Chapter 10.9(b).
The 2010 Fee Rule also authorized the USCIS Director to approve and
suspend 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). See 75 FR 58990; 8 CFR 103.7(d).
As noted in the Fiscal Year (FY) 2016/2017 Immigration Examinations
Fee Account Fee Review Supporting Documentation, the projected annual
impact of fee waivers and exemptions has increased markedly since the
2010 Fee Rule from $191 million to $613 million. Applicants,
petitioners, and requestors that pay a fee cover the cost of processing
requests that are fee-waived or fee-exempt. Although DHS does not
currently plan to do so, it may in the future revisit the USCIS fee
waiver guidance with respect to what constitutes inability to pay under
8 CFR 103.7(c). DHS welcomes comment on this issue.
VII. Volume
USCIS uses two types of volume data in the fee review. Workload
volume is a projection of the total number of immigration benefit
requests that will be received in a fiscal year. Fee-paying volume is a
projection of the number of applicants, petitioners, and requestors
that will pay a fee when filing requests for immigration benefits. Not
all applicants, petitioners, or requestors pay a fee. Those applicants,
petitioners, and requestors for whom USCIS grants a fee waiver or to
whom an exemption applies are represented in the workload volume but
not the fee-paying volume. Applicants, petitioners, and requestors that
pay a fee fund the cost of processing requests for fee-waived or fee-
exempt immigration benefit requests.
A. Workload Volume and Volume Projection Committee
USCIS uses statistical time series modeling and immigration receipt
data from the last 15 years, as well as the best available internal
assessment of future developments (such as annualized data prepared by
the USCIS Office of Performance and Quality) to develop workload volume
projections. All relevant USCIS directorates and program offices are
represented on the USCIS Volume Projection Committee
[[Page 26923]]
(VPC). The VPC forecasts USCIS workload volume with subject-matter-
expert input from USCIS Service Centers, the National Benefits Center,
the RAIO Directorate, and Regional, District, and Field Offices. Input
from these offices helps refine projected volume estimates. The VPC
reviews short- and long-term volume trends. In most cases, time series
models provide volume projections by form type. The time series models
use historical receipts data to determine patterns (such as level,
trend, and seasonality) or correlations with historical events, which
in turn are used to derive the projected receipts. Where possible, the
models are also used to determine relationships between different
benefit request types. Workload volumes are a key element used when
determining the USCIS resources needed to process benefit requests
within established adjudicative processing goals. They are also the
primary cost driver for assigning activity costs to immigration
benefits and biometric services in the USCIS ABC model.
Table 4--Workload Volume Comparison
----------------------------------------------------------------------------------------------------------------
Average Average
annual FY 2010/ annual FY 2016/
Immigration benefit request 2011 projected 2017 projected Difference
workload workload
receipts receipts
----------------------------------------------------------------------------------------------------------------
I-90 Application to Replace Permanent Resident Card............. 540,000 810,707 270,707
I-102 Application for Replacement/Initial Nonimmigrant Arrival- 17,165 10,143 -7,022
Departure Document.............................................
I-129 Petition for a Nonimmigrant Worker........................ 395,000 432,156 37,156
I-129F Petition for Alien Fianc[eacute](e)...................... 54,000 45,351 -8,649
I-130 Petition for Alien Relative............................... 690,520 911,349 220,829
I-131/I-131A Application for Travel Document.................... 256,255 256,622 367
I-140 Immigrant Petition for Alien Worker....................... 75,000 88,602 13,602
I-290B Notice of Appeal or Motion............................... 28,734 24,706 -4,028
I-360 Petition for Amerasian, Widow(er) or Special Immigrant.... 17,669 26,428 8,759
I-485 Application to Register Permanent Residence or Adjust 526,000 593,717 67,717
Status.........................................................
I-526 Immigrant Petition by Alien Entrepreneur.................. 1,399 14,673 13,274
I-539 Application to Extend/Change Nonimmigrant Status.......... 195,000 172,001 -22,999
I-600/I-600A; I-800/I-800A Orphan Petitions..................... 25,241 15,781 -9,460
I-601A Provisional Unlawful Presence Waiver..................... N/A 42,724 42,724
I-687 Application for Status as a Temporary Resident............ 48 18 -30
I-690 Application for Waiver on Grounds of Inadmissibility...... 74 21 -53
I-694 Notice of Appeal of Decision.............................. 50 39 -11
I-698 Application to Adjust Status From Temporary to Permanent 704 91 -613
Resident.......................................................
I-751 Petition to Remove the Conditions of Residence............ 183,000 173,000 -10,000
I-765 Application for Employment Authorization.................. 720,000 747,825 27,825
I-800A Supp. 3 Request for Action on Approved Form I-800A....... N/A 1,585 1,585
I-817 Application for Family Unity Benefits..................... 1,750 2,069 319
I-824 Application for Action on an Approved Application or 20,961 10,921 -10,040
Petition.......................................................
I-829 Petition by Entrepreneur to Remove Conditions............. 441 3,562 3,121
I-910 Application for Civil Surgeon Designation................. 3,410 609 -2,801
I-924 Application for Regional Center Designation Under the 132 400 268
Immigrant Investor Program.....................................
I-924A Annual Certification of Regional Center.................. N/A 882 882
I-929 Petition for Qualifying Family Member of a U-1 N/A 575 575
Nonimmigrant...................................................
N-300 Application to File Declaration of Intention.............. 45 41 -4
N-336 Request for Hearing on a Decision in Naturalization 4,145 4,666 521
Proceedings....................................................
N-400 Application for Naturalization............................ 693,890 830,673 136,783
N-470 Application to Preserve Residence for Naturalization 621 362 -259
Purposes.......................................................
N-565 Application for Replacement Naturalization/Citizenship 29,298 28,914 -384
Document.......................................................
N-600/600K Naturalization Certificate Applications.............. 45,347 69,723 24,376
I-191, I-192, I-193, I-212, I-601, I-612 Waiver Forms........... 31,432 71,527 40,095
USCIS Immigrant Fee............................................. 215,000 472,511 257,511
G-1041 Genealogy Index Search Request........................... N/A 3,605 3,605
G-1041A Genealogy Records Request............................... N/A 2,410 2,410
-----------------------------------------------
Subtotal.................................................... 4,772,331 5,870,989 1,101,459
Biometrics.................................................. 2,048,177 3,028,254 980,077
-----------------------------------------------
Grand Totals............................................ 6,820,508 8,899,243 2,081,536
----------------------------------------------------------------------------------------------------------------
B. Fee-Paying Volume and Methodology
USCIS uses historical revenue and receipt data to determine the
number of individuals that paid the fee for each immigration benefit
type. Total revenue for an immigration benefit request is divided by
its fee to determine the number of fee-paying immigration benefit
requests. Fee-paying receipts are compared to the total number of
receipts (workload volume) to determine a fee-paying percentage for
each immigration benefit request. When appropriate, projected fee-
paying volumes are adjusted to reflect filing trends and anticipated
changes.
[[Page 26924]]
Table 5--Fee-Paying Volume Comparison
----------------------------------------------------------------------------------------------------------------
Average Average
annual FY 2010/ annual FY 2016/
Immigration benefit request 2011 fee 2017 fee Difference
paying paying
projection projection
----------------------------------------------------------------------------------------------------------------
I-90 Application to Replace Permanent Resident Card............. 518,400 718,163 199,763
I-102 Application for Replacement/Initial Nonimmigrant Arrival- 17,165 9,499 -7,666
Departure Document.............................................
I-129 Petition for a Nonimmigrant Worker........................ 395,000 427,778 32,778
I-129F Petition for Alien Fianc[eacute](e)...................... 39,960 39,277 -683
I-130 Petition for Alien Relative............................... 690,520 907,512 216,992
I-131/I-131A Application for Travel Document.................... 192,255 194,461 2,206
I-140 Immigrant Petition for Alien Worker....................... 75,000 88,602 13,602
I-290B Notice of Appeal or Motion............................... 28,734 20,955 -7,779
I-360 Petition for Amerasian, Widow(er) or Special Immigrant.... 6,957 8,961 2,004
I-485 Application to Register Permanent Residence or Adjust 480,000 473,336 -6,664
Status.........................................................
I-526 Immigrant Petition by Alien Entrepreneur.................. 1,343 14,673 13,330
I-539 Application to Extend/Change Nonimmigrant Status.......... 195,000 171,616 -23,384
I-600/600A; I-800/800A Orphan Petitions......................... 16,211 5,811 -10,400
I-601A Provisional Unlawful Presence Waiver..................... N/A 42,724 42,724
I-687 Application for Status as a Temporary Resident............ 43 0 -43
I-690 Application for Waiver on Grounds of Inadmissibility...... 74 17 -57
I-694 Notice of Appeal of Decision.............................. 50 39 -11
I-698 Application to Adjust Status From Temporary to Permanent 605 91 -514
Resident.......................................................
I-751 Petition to Remove the Conditions of Residence............ 177,510 162,533 -14,977
I-765 Application for Employment Authorization.................. 511,200 397,954 -113,247
I-800A Supp. 3 Request for Action on Approved Form I-800A....... N/A 746 746
I-817 Application for Family Unity Benefits..................... 1,750 1,988 238
I-824 Application for Action on an Approved Application or 20,961 10,828 -10,134
Petition.......................................................
I-829 Petition by Entrepreneur to Remove Conditions............. 256 3,562 3,306
I-910 Application for Civil Surgeon Designation................. 1,160 609 -551
I-924 Application for Regional Center Designation Under the 132 400 268
Immigrant Investor Program.....................................
I-924A Annual Certification of Regional Center.................. N/A 882 882
I-929 Petition for Qualifying Family Member of a U-1 N/A 257 257
Nonimmigrant...................................................
N-300 Application to File Declaration of Intention.............. 45 36 -9
N-336 Request for Hearing on a Decision in Naturalization 4,145 3,593 -553
Proceedings....................................................
N-400 Application for Naturalization............................ 684,390 631,655 -52,736
N-470 Application to Preserve Residence for Naturalization 621 360 -261
purposes.......................................................
N-565 Application for Replacement Naturalization/Citizenship 24,903 23,491 -1,413
Document.......................................................
N-600/600K Naturalization Certificate Applications.............. 45,347 46,870 1,523
I-191, I-192, I-193, I-212, I-601, I-612 Waiver Forms........... 31,432 41,902 10,470
USCIS Immigrant Fee............................................. 215,000 472,511 257,511
G-1041 Genealogy Index Search Request........................... N/A 3,605 3,605
G-1041A Genealogy Records Request............................... N/A 2,410 2,410
-----------------------------------------------
Subtotal.................................................... 4,376,169 4,929,707 553,533
Biometrics.................................................. 1,950,603 2,598,639 648,036
-----------------------------------------------
Grand Totals............................................ 6,326,772 7,528,346 1,201,569
----------------------------------------------------------------------------------------------------------------
VIII. Completion Rates
USCIS completion rates are the average hours per adjudication of an
immigration benefit request. They identify the adjudicative time
required to complete (render a decision on) specific immigration
benefit request types. The completion rate for each benefit type
represents an average. Completion rates reflect what is termed ``touch
time'' or the time an employee with adjudicative responsibilities
actually handles the case. It does not reflect ``queue time'' or time
spent waiting, for example, for additional evidence or supervisory
approval. It does not reflect the total processing time customers can
expect to wait for a decision on their case after USCIS accepts it.
USCIS requires the employees who adjudicate immigration benefit
requests to report adjudication hours and case completions by benefit
type. Adjudication hours are divided by the number of completions for
the same time period to determine an average completion rate. In
addition to using this data to determine fees, completion rates help
determine staffing allocations appropriate to handle the projected
workload. The Office of Performance and Quality, field offices, and
regional management scrutinize the data to ensure accuracy. When the
data is inconsistent and anomalies are identified, the Office of
Performance and Quality contacts the reporting office and makes
necessary adjustments. USCIS has confidence in the data, given the
consistency of reporting over the last several years. The continual
availability of the information makes it easier for USCIS to update
cost information more frequently for fee review and cost management
purposes.
[[Page 26925]]
Table 6--Completion Rates per Benefit Request
[Projected adjudication hours/completion]
------------------------------------------------------------------------
Immigration benefit request Service-wide
------------------------------------------------------------------------
I-90 Application to Replace Permanent Resident Card..... 0.21
I-102 Application for Replacement/Initial Nonimmigrant 0.48
Arrival-Departure Document.............................
I-129 Petition for a Nonimmigrant Worker................ 0.83
I-129F Petition for Alien Fianc[eacute](e).............. 0.65
I-130 Petition for Alien Relative....................... 0.75
I-131/I-131A Application for Travel Document............ 0.21
I-140 Immigrant Petition for Alien Worker............... 1.68
I-290B Notice of Appeal or Motion....................... 1.22
I-360 Petition for Amerasian, Widow(er) or Special 1.97
Immigrant..............................................
I-485 Application to Register Permanent Residence or 1.63
Adjust Status..........................................
I-526 Immigrant Petition by Alien Entrepreneur.......... 6.50
I-539 Application to Extend/Change Nonimmigrant Status.. 0.40
I-600/600A; I-800/800A Orphan Petitions................. 2.14
I-601A Application for Provisional Unlawful Presence 2.84
Waiver.................................................
I-687 Application for Status as a Temporary Resident 4.12
Under Section 245A of the Immigration and Nationality
Act....................................................
I-690 Application for Waiver on Grounds of 0.89
Inadmissibility........................................
I-694 Notice of Appeal of Decision under Section 210 or 2.10
245A...................................................
I-698 Application to Adjust Status From Temporary to 3.80
Permanent Resident (Under Section 245A of the INA).....
I-751 Petition to Remove the Conditions of Residence.... 0.99
I-765 Application for Employment Authorization.......... 0.20
I-800A Supplement 3 Request for Action on Approved Form 1.10
I-800A.................................................
I-817 Application for Family Unity Benefits............. 0.92
I-824 Application for Action on an Approved Application 0.59
or Petition............................................
I-829 Petition by Entrepreneur to Remove Conditions..... 5.50
I-910 Application for Civil Surgeon Designation......... 1.81
I-924 Application for Regional Center Designation Under 40.00
the Immigrant Investor Program.........................
I-924A Annual Certification of Regional Center.......... 5.00
N-300 Application to File Declaration of Intention...... 1.64
N-336 Request for Hearing on a Decision in 2.60
Naturalization Proceedings.............................
N-400 Application for Naturalization.................... 1.25
N-470 Application to Preserve Residence for 1.83
Naturalization Purposes................................
N-565 Application for Replacement Naturalization/ 0.59
Citizenship Document...................................
N-600/N-600K Naturalization Certificate Applications.... 1.00
I-191, I-192, I-193, I-212, I-601, I-612 Waiver Forms... 1.18
------------------------------------------------------------------------
USCIS does not calculate completion rates for the following
immigration benefit requests, forms, or other services, due to the
special nature of their processing as explained below:
Biometric Services. Application Support Centers and the
Biometrics Division incur certain costs, which are assigned to this
fee. Completion rates are not necessary to assign processing activity
costs to this product. See proposed 8 CFR 103.7(b)(1)(i)(C).
USCIS Immigrant Fees. USCIS does not adjudicate immigrant
visa benefit requests. Rather, individuals located outside of the
United States apply with a Department of State overseas consular
officer for an immigrant visa. If DOS issues the immigrant visa, the
individual may apply with a U.S. Customs and Border Protection officer
for admission to the United States as an immigrant at a port of entry.
This fee represents USCIS costs to create and maintain files and to
issue permanent resident cards to individuals who go through this
process. See proposed 8 CFR 103.7(b)(1)(i)(D) (changing the fee's title
to ``USCIS Immigrant Fee'').
Refugee and Asylee Processing. Refugee Division and Asylum
Division costs are not directly assigned to any fee and are covered by
immigration benefit requests that pay fees. USCIS does not charge a fee
for the following:
[cir] Application for Asylum and Withholding of Removal, Form I-
589;
[cir] Registration for Classification as a Refugee, Form I-590;
[cir] Application By Refugee For Waiver of Grounds of
Excludability, Form I-602; and
[cir] Refugee/Asylee Relative Petition, Form I-730.
Other Forms Exempt from Fees. The following forms are also
not discussed in this rule as applicants for these form types are
exempt from paying a fee:
[cir] Application for Posthumous Citizenship, Form N-644;
[cir] Application for T Nonimmigrant Status, Form I-914; and
[cir] Petition for U Nonimmigrant Status, Form I-918.
Forms with Uncertain Fee Revenue. These form types may be
terminated under current law, or may cease due to a reduction in the
eligible population, and DHS proposes to not rely on their uncertain
fee revenue streams for recovering USCIS operational expenses. The
following forms are excluded from discussion in this rule because, as
discussed earlier in this preamble, this proposed rule does not propose
to change or establish a special fee for those programs:
[cir] Application for Temporary Protected Status, Form I-821; \75\
---------------------------------------------------------------------------
\75\ The proposed rule would, however, change the location of
the reference to the fee in the Code of Federal Regulations (CFR).
See proposed 8 CFR 103.7(b)(1)(i)(NN).
---------------------------------------------------------------------------
[cir] Consideration of Deferred Action for Childhood Arrivals, Form
I-821D; and
[cir] Application for Suspension of Deportation or Special Rule
Cancellation of Removal, Form I-881.\76\
---------------------------------------------------------------------------
\76\ The proposed rule would change the location of the
reference to the fee in the CFR. See proposed 8 CFR
103.7(b)(1)(i)(QQ).
---------------------------------------------------------------------------
IX. Proposed Fee Adjustments to IEFA Immigration Benefits
Because projected USCIS costs for FY 2016 and 2017 exceed projected
revenue by an average of $569 million each year, USCIS must adjust the
fee schedule to recover the full cost of processing immigration
benefits, and to continue to
[[Page 26926]]
maintain or improve current service delivery standards.
After resource costs are identified, they are distributed to USCIS'
primary processing activities in the ABC model. Table 7 outlines total
IEFA costs by activity.
Table 7--Projected IEFA Costs by Activity
[Dollars in thousands]
----------------------------------------------------------------------------------------------------------------
FY 2016/2017
Activity FY 2016 FY 2017 average
----------------------------------------------------------------------------------------------------------------
Perform Biometrics Services..................................... $194,670 $197,837 $196,254
Make Determination.............................................. 1,268,309 1,302,756 1,285,533
Management and Oversight........................................ 588,262 592,151 590,206
Inform the Public............................................... 281,668 288,187 284,927
Records Management.............................................. 238,271 240,777 239,524
Fraud Detection and Prevention.................................. 176,530 180,544 178,537
Intake.......................................................... 94,736 93,120 93,928
Direct Costs.................................................... 56,444 58,476 57,460
Conduct TECS Check.............................................. 52,829 53,994 53,412
Issue Document.................................................. 31,975 32,632 32,304
Systematic Alien Verification for Entitlements.................. 25,330 26,074 25,702
-----------------------------------------------
Total IEFA Costs............................................ 3,009,024 3,066,548 3,037,786
----------------------------------------------------------------------------------------------------------------
The activity costs are then distributed to the immigration benefit
requests. Table 8 summarizes total revenue by immigration benefit
request based on the proposed fee schedule.
Table 8--Projected FY 2016/2017 Average Annual Revenue per Immigration
Benefit
[Dollars in thousands]
------------------------------------------------------------------------
Immigration benefit request Revenue
------------------------------------------------------------------------
G-1041 Genealogy Index Search Request................... $234
G-1041A Genealogy Records Request....................... 157
I-90 Application to Replace Permanent Resident Card..... 326,764
I-102 Application for Replacement/Initial Nonimmigrant 4,227
Arrival-Departure Document.............................
I-129 Petition for a Nonimmigrant worker................ 196,778
I-129F Petition for Alien Fianc[eacute](e).............. 21,013
I-130 Petition for Alien Relative....................... 485,519
I-131/I-131A Application for Travel Document............ 111,815
I-140 Immigrant Petition for Alien Worker............... 62,021
I-290B Notice of Appeal or Motion....................... 14,145
I-360 Petition for Amerasian Widow(er) or Special 3,898
Immigrant..............................................
I-485 Application to Register Permanent Residence or 539,603
Adjust Status..........................................
I-526 Immigrant Petition by Alien Entrepreneur.......... 53,923
I-539 Application to Extend/Change Nonimmigrant Status.. 63,498
I-600/600A/800/800A Orphan Petitions.................... 4,504
I-601A Provisional Unlawful Presence Waiver............. 26,916
I-690 Application for Waiver of Grounds of 12
Inadmissibility........................................
I-694 Notice of Appeal of Decision...................... 35
I-698 Application to Adjust Status From Temporary to 152
Permanent Resident (Under Section 245A of the INA).....
I-751 Petition to Remove Conditions on Residence........ 96,707
I-765 Application for Employment Authorization.......... 163,161
I-800A Supplement 3 Request for Action on Approved Form 287
I-800A.................................................
I-817 Application for Family Unity Benefits............. 1,193
I-824 Application for Action on an Approved Application 5,035
or Petition............................................
I-829 Petition by Entrepreneur to Remove Conditions..... 13,356
I-910 Application for Civil Surgeon Designation......... 478
I-924 Application for Regional Center Designation Under 7,109
the Immigrant Investor Program.........................
I-924A Annual Certification of Regional Center.......... 2,677
I-929 Petition for Qualifying Family Member of a U-1 59
Nonimmigrant...........................................
N-300 Application to File Declaration of Intention...... 10
N-336 Request for Hearing on a Decision in 2,515
Naturalization Proceedings.............................
N-400 Application for Naturalization.................... 404,259
N-470 Application to Preserve Residence for 128
Naturalization Purposes................................
N-565 Application for Replacement Naturalization/ 13,037
Citizenship Document...................................
N-600/N-600K Application for Certificate of Citizenship. 54,838
I-191, I-192, I-193, I-212, I-601, I-602, I-612 Waiver 38,968
Forms..................................................
USCIS Immigrant Fee..................................... 103,952
Biometric Services...................................... 220,884
---------------
Grand Totals........................................ 3,043,866
------------------------------------------------------------------------
[[Page 26927]]
Table 9 depicts the current and proposed USCIS fees for immigration
benefits and biometric services. For a more detailed description of the
basis for the changes described in this table, see Appendix Table 4 in
the FY 2016/2017 Fee Review Supporting Documentation accompanying this
proposed rule.
Table 9--Proposed Fees by Immigration Benefit
----------------------------------------------------------------------------------------------------------------
Current fee Proposed fee
Immigration benefit request ($) ($) Delta ($) Percent change
----------------------------------------------------------------------------------------------------------------
G-1041 Genealogy Index Search Request........... $20 $65 $45 225
G-1041A Genealogy Records Request (Copy from 20 65 45 225
Microfilm).....................................
G-1041A Genealogy Records Request (Copy from 35 65 30 86
Textual Record)................................
I-90 Application to Replace Permanent Resident 365 455 90 25
Card...........................................
I-102 Application for Replacement/Initial 330 445 115 35
Nonimmigrant Arrival-Departure Document........
I-129 Petition for a Nonimmigrant worker........ 325 460 135 42
I-129F Petition for Alien Fianc[eacute](e)...... 340 535 195 57
I-130 Petition for Alien Relative............... 420 535 115 27
I-131/I-131A Application for Travel Document.... 360 575 215 60
I-140 Immigrant Petition for Alien Worker....... 580 700 120 21
I-290B Notice of Appeal or Motion............... 630 675 45 7
I-360 Petition for Amerasian Widow(er) or 405 435 30 7
Special Immigrant..............................
I-485 Application to Register Permanent 985 1,140 155 16
Residence or Adjust Status.....................
I-526 Immigrant Petition by Alien Entrepreneur.. 1,500 3,675 2,175 145
I-539 Application to Extend/Change Nonimmigrant 290 370 80 28
Status.........................................
I-600/600A/800/800A Orphan Petitions............ 720 775 55 8
I-601A Application for Provisional Unlawful 585 630 45 8
Presence Waiver................................
I-687 Application for Status as a Temporary 1,130 1,130 0 0
Resident under Section 245A of the Immigration
and Nationality Act............................
I-690 Application for Waiver of Grounds of 200 715 515 258
Inadmissibility................................
I-694 Notice of Appeal of Decision.............. 755 890 135 18
I-698 Application to Adjust Status From 1,020 1,670 650 64
Temporary to Permanent Resident (Under Section
245A of the INA)...............................
I-751 Petition to Remove Conditions on Residence 505 595 90 18
I-765 Application for Employment Authorization.. 380 410 30 8
I-800A Supp. 3 Request for Action on Approved 360 385 25 7
Form I-800A....................................
I-817 Application for Family Unity Benefits..... 435 600 165 38
I-824 Application for Action on an Approved 405 465 60 15
Application or Petition........................
I-829 Petition by Entrepreneur to Remove 3,750 3,750 0 0
Conditions.....................................
I-910 Application for Civil Surgeon Designation. 615 785 170 28
I-924 Application for Regional Center 6,230 17,795 11,565 186
Designation Under the Immigrant Investor
Program........................................
I-924A Annual Certification of Regional Center.. 0 3,035 3,035 N/A
I-929 Petition for Qualifying Family Member of a 215 230 15 7
U-1 Nonimmigrant...............................
N-300 Application to File Declaration of 250 270 20 8
Intention......................................
N-336 Request for Hearing on a Decision in 650 700 50 8
Naturalization Proceedings.....................
N-400 Application for Naturalization............ 595 640 45 8
N-470 Application to Preserve Residence for 330 355 25 8
Naturalization Purposes........................
N-565 Application for Replacement Naturalization/ 345 555 210 61
Citizenship Document...........................
N-600/N-600K Application for Certificate of 600 1,170 570 95
Citizenship....................................
I-191, I-192, I-193, I-212, I-601, I-602, I-612 585 930 345 59
Waiver Forms...................................
USCIS Immigrant Fee............................. 165 220 55 33
Biometric Services.............................. 85 85 0 0
----------------------------------------------------------------------------------------------------------------
X. Statutory and Regulatory Reviews
A. Regulatory Flexibility Act
In accordance with the 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 50,000
people). Below is a summary of the small entity analysis. A more
detailed analysis is available in the rulemaking docket at http://www.regulations.gov.
Individuals rather than 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 fees for
certain immigration benefit applications and petitions. 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; Application for Civil Surgeon
Designation, Form I-910; and the Application for Regional Center
Designation Under the Immigrant Investor Program, Form I-924.\77\
---------------------------------------------------------------------------
\77\ Also captured in the dataset for Form I-924 is the
Supplement Form I-924A, which regional centers must file annually to
certify their continued eligibility for regional center designation.
---------------------------------------------------------------------------
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 that are filing Form I-129, Form I-140, or Form I-910.
However, DHS does not have sufficient data on the revenue collected
through administrative fees by regional centers to definitively
determine the economic impact on small entities that may file Form I-
924.
[[Page 26928]]
DHS requests any data that would help to further assess the impact on
small entities in the regional centers. DHS is publishing the initial
regulatory flexibility analysis to aid the public in commenting on the
small entity impact of its proposed adjustment to the USCIS Fee
Schedule.
1. A Description of the Reasons Why the Action by the Agency Is Being
Considered
DHS proposes to adjust certain immigration and naturalization
benefit request fees charged by USCIS. USCIS has determined that
current fees do not recover the full costs of services provided. As
USCIS is nearly fully funded by fees, adjustment to the fee schedule is
necessary to recover costs and maintain adequate service.
2. A Succinct Statement of the Objectives of, and Legal Basis for, the
Proposed Rule
DHS's objectives and legal authority for this proposed rule are
discussed in Section III of this preamble.
3. A Description and, Where Feasible, an Estimate of the Number of
Small Entities to Which the Proposed Rule Will Apply
Entities affected by this rule are those that file and pay fees for
certain immigration benefit applications and petitions on behalf of a
foreign national. These applications include Petition for Nonimmigrant
Worker, Form I-129; Immigrant Petition for Alien Worker, Form I-140;
Civil Surgeon Designation, Form I-910; and Application for Regional
Center Designation Under the Immigrant Investor Program, Form I-924.
Annual numeric estimates of small entities affected by this fee
increase total (in parentheses): Form I-129 (70,211), Form I-140
(17,812), Form I-910 (589), and Form I-924 (412).
This rule applies to small entities including businesses, non-
profit organizations, and governmental jurisdictions filing for the
above benefits. Form I-129 and Form I-140 will see a number of industry
clusters affected by this rule (see Appendix A of the Small Entity
Analysis for a list of industry codes). The fee for civil surgeon
designation will apply to physicians requesting such designation.
Finally, the Form I-924 will apply to any entity requesting approval
and designation as a regional center under the Immigrant Investor
Program or filing an amendment to an approved regional center
application. Also captured in the dataset for Form I-924 is the
Supplement Form I-924A, which regional centers must file annually to
certify their continued eligibility for regional center designation.
a. Petition for a Nonimmigrant Worker, Form I-129
USCIS proposes to increase the fee for the Petition for a
Nonimmigrant Worker, Form I-129, from $325 to $460, a $135 (42 percent)
increase. Using a 12-month period of data on filings of Form I-129 from
September 1, 2014 to August 31, 2015, USCIS collected internal data for
each filing organization including the name, Employer Identification
Number, city, state, ZIP code, and number/type of filings. Each entity
may make multiple filings; for instance, there were 482,190 Form I-129
petitions, but only 84,490 unique entities that filed those petitions.
Since the filing statistics do not contain information such as the
revenue of the business, USCIS looked for this information by
researching databases from third-party sources. USCIS used the
subscription-based online database from Hoover's, as well as three
open-access databases from Manta, Cortera, and Guidestar, to help
determine an organization's small entity status and apply Small
Business Administration size standards.
USCIS devised a methodology to conduct the small entity analysis
based on a representative sample of the affected population for each
form. To achieve a 95 percent confidence level and a 5 percent
confidence interval on a population of 84,490 unique entities for Form
I-129, USCIS used the standard statistical formula to determine a
minimum sample size of 382 entities was necessary. Based on past
experience, USCIS expected to find about 40 to 50 percent of the filing
organizations in the online subscription and public databases.
Accordingly, USCIS selected a sample size approximately 40 percent
larger than the minimum necessary in order to allow for non-matches
(filing organizations that could not be found in any of the four
databases). Therefore, USCIS conducted searches on 534 randomly
selected entities from the population of 84,490 unique entities for
Form I-129.
The 534 searches for Form I-129 resulted in 404 instances where the
name of the filing organization was successfully matched in the
databases and 130 instances where the name of the filing organization
was not found in the databases. Based on previous experience conducting
regulatory flexibility analyses, USCIS assumes filing organizations not
found in the online database are likely to be small entities. Thus, in
order not to underestimate the number of small entities affected by
this rule, USCIS makes the conservative assumption to consider all of
the non-matched entities as small entities for the purpose of this
analysis. Among the 404 matches for Form I-129, 287 were determined to
be small entities based on their reported revenue or employee count and
their North American Industry Classification System (NAICS) code.
Combining non-matches (130), matches missing data (27), and small
entity matches (287), enables us to classify 444 of the 534 entities as
small for Form I-129.
With an aggregated total of 444 out of a sample size of 534, DHS
inferred that a majority, or 83.1 percent, of the entities filing Form
I-129 petitions during the period were small entities. Furthermore, 284
of the 534 searched were small entities with the sales revenue data
needed to estimate the economic impact of the proposed rule. Because
these 284 small entities were a subset of the random sample of 534
searches, they were statistically significant in the context of this
research. In order to calculate the economic impact of this rule, USCIS
estimated the total costs associated with the proposed fee increase for
each entity, divided by the sales revenue of that entity.\78\ Based on
the proposed fee increase of $135 for Form I-129, this would amount to
an average impact of 0.08 percent on all 284 small entities with
reported revenue data.
---------------------------------------------------------------------------
\78\ Total Cost to Entity = (Number of Petitions x $135)/Entity
Sales Revenue.
---------------------------------------------------------------------------
In terms of range, among the 284 small entities with reported
revenue data, all experienced an economic impact of considerably less
than 1.0 percent in the analysis, with the exception of one entity.
Using the above methodology, the greatest economic impact imposed by
this fee change totaled 2.55 percent on that one entity and the
smallest totaled 0.0001 percent.
The evidence suggests that the additional fee imposed by this rule
does not represent a significant economic impact on these entities.
b. Immigrant Petition for an Alien Worker, Form I-140
USCIS proposes to increase the fee for the Immigrant Petition for
an Alien Worker, Form I-140, from $580 to $700, a $120 (21 percent)
increase. Using a 12-month period of data on filings of Form I-140
petitions from September 1, 2014 to August 31, 2015, USCIS collected
internal data similar to that of Form I-129. There were 101,245 Form I-
140 petitions, but only 23,284 unique entities that filed those
petitions. Again, USCIS used the third party sources of
[[Page 26929]]
data mentioned previously to search for revenue and employee count
information.
USCIS used the same methodology as with Form I-129 to conduct the
small entity analysis based on a representative sample of the affected
population. To achieve a 95 percent confidence level and a 5 percent
confidence interval on a population of 23,284 unique entities for Form
I-140, USCIS used the standard statistical formula to determine that a
minimum sample size of 378 entities was necessary. Again, based on past
experience, USCIS expected to find about 40 to 50 percent of the filing
organizations in the online subscription and public databases.
Accordingly, USCIS oversampled in order to allow for non-matches
(filing organizations that could not be found in any of the four
databases).
USCIS conducted searches on 514 randomly selected entities from the
population of 23,284 unique entities for Form I-140. The 514 searches
resulted in 430 instances where the name of the filing organization was
successfully matched in the databases and 84 instances where the name
of the filing organization was not found in the databases. Based on
previous experience conducting regulatory flexibility analyses, USCIS
assumes filing organizations not found in the online databases are
likely to be small entities. In order not to underestimate the number
of small entities affected by this rule, USCIS makes the conservative
assumption to consider all of the non-matched entities as small
entities for the purpose of this analysis. Among the 430 matches for
Form I-140, 290 were determined to be small entities based on their
reported revenue or employee count and their NAICS code. Combining non-
matches (84), matches missing data (19), and small entity matches
(290), enables us to classify 393 of 514 entities as small for Form I-
140.
With an aggregated total of 393 out of a sample size of 514, USCIS
inferred that a majority, or 76.5 percent, of the entities filing Form
I-140 petitions during the period were small entities. Furthermore, 287
of the 514 searched were small entities with the sales revenue data
needed in order to estimate the economic impact of the proposed rule.
Because these 287 small entities were a subset of the random sample of
514 searches, they were statistically significant in the context of
this research. Similar to Form I-129, DHS estimated the total costs
associated with the proposed fee increase for each entity, divided by
the sales revenue of that entity in order to calculate the economic
impact of this rule.
Among the 287 small entities with reported revenue data, all
experienced an economic impact considerably less than 1.0 percent in
the analysis. Using the above methodology, the greatest economic impact
imposed by this fee change totaled 0.68 percent and the smallest
totaled 0.000002 percent. The average impact on all 287 small entities
with revenue data was 0.04 percent.
The evidence suggests that the additional fee imposed by this rule
does not represent a significant economic impact on these entities.
Additionally, USCIS analyzed any cumulative impacts to Form I-129
and Form I-140, as well the individual analyses. USCIS wanted to
determine if there were cumulative impacts when the forms were analyzed
together. USCIS isolated those entities that overlapped in both samples
of Forms I-129 and I-140 by EIN. Only 3 entities had EINs that
overlapped in both samples. Of these 3 entities, 2 of them were small
entities and 1 was not a small entity. Only 1 entity submitted multiple
Form I-129 petitions, while all 3 entities submitted multiple Form I-
140 petitions. Due to little overlap in entities in the samples and the
relatively minor impacts on revenue of fee increases of Forms I-129 and
I-140, USCIS does not expect the combined impact of these two forms to
be an economically significant burden on a substantial number of small
entities.
c. Application for Civil Surgeon Designation, Form I-910
USCIS proposes to increase the fee for the Application for Civil
Surgeon Designations, Form I-910, from $615 to $785, a $170 (28
percent) increase. Using a 12-month period of August 1, 2014 to July
31, 2015, USCIS collected internal data on the applicants. There were
719 Form I-910 applications, but only 602 unique entities that filed
such applications. Again, USCIS used third party sources of data
mentioned previously to search for revenue and employee count
information.
Using the same methodology as with Form I-129 and Form I-140, USCIS
conducted the small entity analysis based on a representative sample,
with a 95 percent confidence level and a 5 percent confidence interval,
of the population of 602 unique entities for Form I-910. USCIS
determined that a minimum sample size of 235 entities was necessary.
USCIS oversampled and conducted searches on 329 randomly selected
entities for Form I-910.
The 329 searches for Form I-910 resulted in 252 instances where the
name of the filing organization was successfully matched in the
databases and 77 instances where the name of the filing organization
was not found in the databases. USCIS assumed again that filing
organizations not found in the online databases are likely to be small
entities, so USCIS considered all of the non-matched entities as small
entities for the purpose of this analysis. Among the 252 matches for
Form I-910, 240 were determined to be small entities based on their
reported revenue or employee count and their NAICS code. Combining non-
matches (77), matches missing data (5), and small entity matches (240),
USCIS classified 322 of 329 entities as small for Form I-910.
With an aggregated total of 322 out of a sample size of 329, USCIS
inferred that a majority, or 97.9 percent, of the entities filing Form
I-910 applications were small entities. Furthermore, 238 of the 329
entities searched were small entities with the sales revenue data
needed in order to estimate the economic impact of the proposed rule.
Because these 238 small entities were a subset of the random sample of
329 searches, they were statistically significant in the context of
this research.
Similar to Form I-129 and Form I-140, USCIS estimated the total
costs associated with the proposed fee increase for each entity. Among
the 238 small entities with reported revenue data, all experienced an
economic impact considerably less than 1.0 percent in the analysis. The
greatest economic impact imposed by this fee change totaled 0.61
percent and the smallest totaled 0.00002 percent. The average impact on
all 238 small entities with revenue data was 0.09 percent.
The evidence suggests that the additional fee imposed by this rule
does not represent a significant economic impact on these entities.
d. Regional Center Designation Under the Immigrant Investor Program,
Form I-924 and I-924A
Congress created the EB-5 Program in 1990 under section 203(b)(5)
of the INA to stimulate the U.S. economy through job creation and
capital investment by foreign investors. Foreign investors have the
opportunity to obtain lawful permanent residence in the United States
for themselves, their spouses, and their minor unmarried children
through a certain level of capital investment and associated job
creation or preservation. There are two distinct EB-5 pathways for a
foreign investor to gain lawful permanent residence: the Basic Program
and the Regional Center Program. Both options require a capital
investment from the foreign investor in a new commercial enterprise
located within
[[Page 26930]]
the United States. The capital investment amount is generally set at
$1,000,000, but may be reduced to $500,000 if the investment is made in
a ``Targeted Employment Area.''
A regional center is an economic entity, public or private, that
promotes economic growth, regional productivity, job creation, and
increased domestic capital investment. Regional centers pool funds into
development loans or equity for commercial space and real estate
development projects. As of January 4, 2016, there were 790 USCIS-
approved regional centers.\79\ Entities seeking designation as regional
centers file Form I-924 along with supporting materials. Approved
regional centers are currently required to file the Supplement to Form
I-924, Form I-924A, annually to demonstrate continued eligibility for
regional center designation. DHS is proposing to change the name of the
Form I-924A annual filing to ``Annual Certification of Regional
Center''.
---------------------------------------------------------------------------
\79\ USCIS Immigrant Investor Regional Centers: http://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/immigrant-investor-regional-centers#table.
---------------------------------------------------------------------------
DHS proposes to increase the fee for the Application for Regional
Center Designation Under the Immigrant Investor Program, Form I-924,
from $6,230 to $17,795, an $11,565 (186 percent) increase.
Additionally, DHS proposes to introduce a filing fee of $3,035 for Form
I-924A. In proposing to establish this fee, DHS would also clarify the
related regulations that provide for the annual regional center review
related to Form I-924A. Currently, there is no procedure for regional
centers seeking to withdraw their designation and discontinue their
participation in the program. Formal termination is currently processed
by USCIS issuing a Notice of Intent to Terminate and a subsequent
termination notice. The proposed withdrawal procedure would allow a
regional center to proactively request withdrawal without the need for
the more formal notices sent out by USCIS. This proposed procedure
would reduce administrative costs and time for the Department, while
timely clarifying status to the requesting regional center. Over a 13-
month period of August 1, 2014 through August 31, 2015, USCIS received
a total of 412 Form I-924 applications.\80\ These applications include
the request for newly designated regional centers, as well as requests
for continued designation for existing regional centers.
---------------------------------------------------------------------------
\80\ Supplemental Form I-924A (Supplement to Form I-924) is
captured in this dataset.
---------------------------------------------------------------------------
DHS was not able to determine the numbers of regional centers that
would be considered small entities. Regional centers are difficult to
assess because there is a lack of official data on employment, income,
and industry classification for these entities. Regional centers also
pose a challenge for analysis as their structure is often complex and
can involve many related business and financial activities not directly
involved with EB-5 activities. Regional centers can be made up of
several layers of business and financial activities that focus on
matching foreign investor funds to development projects to capture
above market return differentials. While USCIS attempted to treat the
regional centers similar to the other entities in this analysis, we
were not able to identify most of the entities in any of the online
databases. Furthermore, while regional centers are an integral
component of the EB-5 program, DHS does not collect data on the
administrative fees the regional centers charge to the foreign
investors who are investing in one of their projects. DHS did not focus
on the bundled capital investment amounts (either $1 million or
$500,000 per investor) that the regional center invests into a new
commercial enterprise. Such investment amounts are not necessarily
indicative of whether the regional center is appropriately
characterized as a small entity for purposes of the RFA.
Due to the lack of regional center revenue data, DHS assumes
regional centers collect revenue through the administrative fees
charged to investors. Searching through several public Web sites, DHS
gathers that administrative fees charged to investors could range
between $30,000 and $100,000 per investor.\81\ DHS does not know the
extent to which these regional centers can pass along the fee increases
to the individual investors. Passing along the costs from this rule
could reduce or eliminate the economic impacts to the regional centers.
While DHS cannot definitively claim there is no significant economic
impact to these small entities based on existing information, DHS would
assume existing regional centers that have revenues equal to or less
than $303,500 per year \82\ (some of which we assume would be derived
from administrative fees charged to individual investors) could
experience a significant economic impact if we assume a fee increase
that represents 1% of annual revenue is a ``significant'' economic
burden under the RFA. DHS also assumes newly designated regional
centers that have revenues equal to or less than $1,779,500 per year
\83\ could also experience a significant impact. DHS was able to obtain
some sample data on 440 regional centers operating 5,886 projects.
These 5,886 projects had a total of 54,506 investors, averaging 124
investors per regional center.\84\ Assuming an average of 124 investors
is a representative proxy of the regional centers, and that $30,000 is
the minimum administrative fee charged by regional centers, then such
fees would represent approximately $3,720,000 in revenue. In that case,
the proposed filing fee increase for Form I-924 and the creation of a
new fee for Form I-924A would not cause a significant economic impact
to these entities. DHS requests information from the public on data
sources on the average revenues collected by regional centers in the
form of administrative fees and the extent to which regional centers
may pass along the fee increases to the individual investors.
---------------------------------------------------------------------------
\81\ Yen, Christine et al., ``A Report on Source of Funds:
Perils of the Administrative Fee.'' EB5 Investors Magazine (Aug. 20,
2015), available at: http://www.eb5investors.com/magazine/article/A-Report-on-Source-of-Funds. See also Green, Merritt. ``The Costs of
an EB-5 Regional Center Project Investment.'' (June 27, 2014),
available at: http://www.generalcounsellaw.com/the-cost-of-an-eb-5-regional-center-project-investment/.
\82\ Calculation: 1 percent of $303,500 = $3,035 (the new
proposed fee for Form I-924A).
\83\ Calculation: 1 percent of $1,779,500 = $17,995 (the new
proposed fee for Form I-924).
\84\ Department of Homeland Security, USCIS, Immigrant Investor
Program Office.
---------------------------------------------------------------------------
4. A Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Proposed Rule, Including an Estimate of
the Classes of Small Entities That Will Be Subject to the Requirement
and the Types of Professional Skills Necessary for Preparation of the
Report or Record
The proposed rule does not directly impose any new or additional
``reporting'' or ``recordkeeping'' requirements on filers of Forms I-
129, I-140, I-910, or I-924 other than the fee adjustments. The
proposed rule does not require any new professional skills for
reporting.
5. An Identification, to the Extent Practicable, of All Relevant
Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rule
DHS is unaware of any duplicative, overlapping, or conflicting
federal rules, but invites any comment and information regarding any
such rules.
[[Page 26931]]
6. Description of Any Significant Alternatives to the Proposed Rule
That Accomplish the Stated Objectives of Applicable Statutes and That
Minimize Any Significant Economic Impact of the Proposed Rule on Small
Entities Including Alternatives Considered Such as:
(1) Establishment of differing compliance or reporting requirements
or timetables that take into account the resources available to small
entities;
(2) Clarification, consolidation, or simplification of compliance
and reporting requirements under the rule for such small entities;
(3) Use of performance rather than design standards; and
(4) Any exemption from coverage of the rule, or any part thereof,
for such small entities.
The INA provides for the collection of fees at a level that will
ensure recovery of the full costs of providing adjudication and
naturalization services, including services provided without charge to
those eligible for fee waivers and exemptions. DHS funds the costs of
providing services without charge by using a portion of the filing fees
that are collected for other immigration benefits. Without an increase
in fees, USCIS will be unable to maintain the level of service for
immigration and naturalization benefits as it now provides. DHS
considered the alternative of maintaining fees at the current level but
with reduced services and increased processing times, but has decided
that this would not be in the interest of applicants and petitioners.
While most immigration benefit fees are paid by individuals, as
described above, some also apply to small entities. USCIS seeks to
minimize the impact on all parties, but in particular small entities.
Another alternative would be to maintain fees at their current level
for small entities. This alternative would avoid additional fee-burdens
on small entities; however, small entities would experience negative
effects due to the service reductions that would result in the absence
of the fee adjustments proposed in this rule.
Without the fee adjustments proposed in this rule, significant
operational changes would be necessary. Given current filing volume and
other economic considerations, USCIS requires additional revenue 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, and training. Depending on the actual level of workload
received, these operational changes would result in longer 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 reductions in
customer service.
7. DHS Seeks Public Comment on the Following Questions
Please provide comment on the numbers of small entities
that may be affected by this rulemaking.
Please provide comment on any or all of the provisions in
the proposed rule with regard to the economic impact of this rule,
paying specific attention to the effect of the rule on small entities
in light of the above analysis, as well as the full analysis on
regulations.gov.
Please provide comment on any significant alternatives DHS
should consider instead of the changes proposed by this rule.
Please describe ways in which the rule could be modified
to reduce burdens for small entities consistent with the INA and the
CFO Act of 1990 requirements.
Please identify all relevant federal, state or local rules
that may duplicate, overlap or conflict with the proposed rule.
B. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (UMRA) requires certain
actions to be taken before an agency promulgates any proposed or final
rule ``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.\85\ 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,\86\ 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.\87\ Therefore, no actions were deemed necessary under the
provisions of the UMRA.
---------------------------------------------------------------------------
\85\ See 2 U.S.C. 1532(a).
\86\ See 2 U.S.C. 658(6).
\87\ See 2 U.S.C. 658(7)(A)(ii).
---------------------------------------------------------------------------
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 $100,000,000 in
order to generate the revenue necessary to fully fund the increased
cost associated with the processing of immigration benefit applications
and petitions and associated support benefits; the full cost of
providing similar benefits to asylum and refugee applicants at no
charge; and the full cost of providing similar benefits to other
immigrants, as specified in the proposed regulation, at no charge. The
increased costs would be recovered through the fees charged for various
immigration benefit requests.
D. Congressional Review Act
The Congressional Review Act (5 U.S.C. 801 et seq.) requires rules
to be submitted to Congress before taking effect. If implemented as
proposed, we will submit to Congress and the Comptroller General of the
United States a report regarding the issuance of the final rule prior
to its effective date, as required by 5 U.S.C. 801.
E. Executive Orders 12866 and 13563 (Regulatory Planning and Review)
1. Background and Purpose of the Proposed Rule
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available alternatives, and if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, distributive impacts, and equity). Executive Order 13563
emphasizes the importance of quantifying both costs and benefits, of
reducing costs, of harmonizing rules, and of promoting flexibility.
This proposed rule has been designated an ``economically significant
regulatory action'' under section 3(f)(1) of Executive Order 12866.
Accordingly, OMB has reviewed the proposed rule.
USCIS projects an annual budget of $3.038 billion in FY 2016/FY
2017, a $767 million (34 percent) increase over the FY 2010/FY2011 Fee
Review-adjusted annual budget of $2.271 billion. The implementation of
this proposed rule would provide USCIS with an average of $546 million
in FY 2016 and FY 2017 annual fee revenue above the FY 2010/FY 2011
levels, based on a projected annual fee-paying volume of 4.9 million
immigrant benefit requests and 2.6 million requests for
[[Page 26932]]
biometric services. USCIS would use this increase in revenue under
subsections 286(m) and (n) of the INA, 8 U.S.C. 1356(m) and (n), to
fund the full costs of processing immigration benefit requests and
associated support benefits; the full cost of providing similar
benefits to asylum and refugee applicants at no charge; and the full
cost of providing similar benefits to others at no charge.
If USCIS does not adjust the current fees to recover the full costs
of processing immigration benefit requests, it would be forced to make
reductions in services provided to applicants and petitioners. These
would reverse the considerable progress USCIS 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 proposed revenue
increase is based on USCIS costs and volume projections available at
the time the rule was drafted. USCIS has placed in the rulemaking
docket a detailed analysis that explains the basis for the annual fee
increase. USCIS has included an accounting statement detailing the
annualized costs of the proposed rule in Table 10 below.
Table 10--Accounting Statement, FY 2016 Through FY 2017
----------------------------------------------------------------------------------------------------------------
Category Primary estimate Maximum estimate
----------------------------------------------------------------------------------------------------------------
Benefits:
--------------------------------------------------------------------------
Un-quantified Benefits........... Maintain current level of service with respect to processing times,
customer service, and efficiency levels.
----------------------------------------------------------------------------------------------------------------
Transfers:
Annualized Monetized Transfers at $546,429,650 $546,429,650.
3%.
Annualized Monetized Transfers at $546,429,650 $546,429,650.
7%.
----------------------------------------------------------------------------------------------------------------
Category Effects Source
----------------------------------------------------------------------------------------------------------------
Effects on State, local, and/or For those state, local, and/ NPRM, EO 12866/13563 Analysis.
tribal governments. or tribal governments that
submit petitions for
nonimmigrant and immigrant
workers, they would face an
increase in filing fees.
Effects on small businesses.......... For those small businesses NPRM, EO 12866/13563 Analysis, Small
that submit petitions for Entity Analysis.
nonimmigrant and immigrant
workers, they would face an
increase in filing fees.
----------------------------------------------------------------------------------------------------------------
2. Proposed Amendments and Impacts of Proposed Regulatory Change
This proposed rule is intended to adjust current fees to ensure
that USCIS is able to recover the full costs of the immigration
services it provides and maintain adequate service. In addition to
increasing fees, USCIS proposes the following amendments: provisions
that USCIS will reject an immigration benefit request paid with a
dishonored check; provisions that USCIS will reject an application that
does not include the required biometric services fee; the institution
of a reduced fee for the Application for Naturalization, Form N-400;
and provisions that fee refunds will be provided at USCIS discretion.
a. Dishonored Payments
Earlier in this preamble USCIS explains its proposal to change how
it will treat a benefit request accompanied by fee payment (in the form
of check or other financial instrument) that is subsequently returned
as not payable.\88\ Current regulations provide that when a check or
other financial instrument used to pay a filing fee is subsequently
returned as not payable, the remitter will be notified and requested to
pay the filing fee and associated service charge within 14 calendar
days, without extension.\89\ If the benefit request is pending and
these charges are not paid within 14 days, the benefit request will be
rejected as improperly filed. In addition, a receipt issued by a DHS
officer for any remittance will not be binding upon DHS if the
remittance is found uncollectable, and legal and statutory deadlines
will not be deemed to have been met if payment is not made within 10
business days after notification by DHS of the dishonored check.\90\ In
accordance with these provisions, when a payment is returned as not
payable, USCIS places the immigration benefit request on hold, and
suspends adjudication. If the check was dishonored or payment fails,
USCIS assesses a $30 penalty and pursues the unpaid fee and penalty
using administrative debt collection procedures.\91\ If payment is made
within the allotted time, USCIS resumes processing the application or
benefit request. If a payment is not corrected by the applicant, USCIS
rejects the filing for nonpayment.\92\
---------------------------------------------------------------------------
\88\ USCIS proposes to immediately reject and not accept for
processing any applications and petitions submitted with invalid
payments, e.g. an unsigned check or invalid bank account on an
electronic payment. The subsequent identification as not payable
would occur when an attempt is made to process the payment through a
bank, but the bank does not honor the payment, e.g. returned for
insufficient funds.
\89\ See 8 CFR 103.2(a)(7)(ii).
\90\ See 8 CFR 103.2(a)(7)(ii), 103.7(a)(2).
\91\ See 8 CFR 103.7(a)(2).
\92\ See 8 CFR 103.2(a)(7)(ii).
---------------------------------------------------------------------------
DHS proposes to eliminate provisions requiring that applications or
petitions be held while deficient payments are corrected. Under the
proposed amendment, if a check or other financial instrument used to
pay a filing fee is subsequently returned as not payable, the benefit
request will be rejected as improperly filed.\93\ If the benefit
request was approved and finds payment to be deficient at a later time,
the remitter will be requested to pay the filing fee plus the
previously established $30 service charge within 14 calendar days,
without extension.\94\ If these charges are not paid, the approval will
be automatically rejected for nonpayment.\95\
---------------------------------------------------------------------------
\93\ See proposed 8 CFR 103.2(a)(7)(ii).
\94\ See proposed 8 CFR 103.7(a)(2).
\95\ Id.
---------------------------------------------------------------------------
In order to get an estimate of the numbers of applicants who make a
payment with a dishonored check or failed payment, USCIS analyzed the
count of all returned and subsequently corrected payments of a credit
card or check from fiscal years 2012 to 2015.\96\ In FY 2015, 10,818
payments were returned (Table 11). Of those 10,818
[[Page 26933]]
returned payments, 6,399 (59.2 percent) were later corrected. The
average annual number of returned payments from FY 2012 to FY 2015 was
9,781 with an annual average of 6,478 payments (66.2 percent) later
corrected. Assuming all included a current service fee of $30, the
resulting total annual cost to applicants for returned payments is
$293,430.\97\
---------------------------------------------------------------------------
\96\ Corrected payments include any payment collected by USCIS
after the return of an initial payment.
\97\ Calculation: 9,781 (average number of returned payments) *
$30 (current service fee charge) = $293,430 (total cost for returned
payments).
Table 11--Count of Returned and Corrected Credit Card/Check Payments, FY 2012-2015
----------------------------------------------------------------------------------------------------------------
Total Percentage of
Year Total returned corrected corrected
payments payments payments
----------------------------------------------------------------------------------------------------------------
2015............................................................ 10,818 6,399 59.2
2014............................................................ 9,200 6,467 70.3
2013............................................................ 9,785 6,496 66.4
2012............................................................ 9,322 6,550 70.3
Average..................................................... 9,781 6,478 66.2
----------------------------------------------------------------------------------------------------------------
Source: Department of Homeland Security, Immigration and Customs Enforcement, Burlington Finance Center.
The proposed provisions would require USCIS to reject these
returned payments and associated benefit requests for nonpayment. The
existing $30 service charge would continue to be imposed for benefit
requests rejected when a financial institution does not honor a
payment. USCIS anticipates that the prospect of rejection would
encourage applicants to provide the correct filing fees at the time
they submit an application or petition. However, USCIS recognizes that
there would continue to be applicants who file an application with an
incorrect fee and would be required to pay the $30 service fee. While
USCIS knows currently this additional service fee averages to $293,430
for all applicants and anticipates it would be lower in the future, we
do not have enough information at this time to estimate the degree of
this decrease.
For applicants, filing fees are a required and fundamental aspect
of the benefit being requested. By providing a 14-day window to correct
for dishonored checks, the regulation currently permits a benefit
request paid with a dishonored payment instrument to secure a place in
line ahead of a benefit request that was accompanied by a proper
payment, for what may be a time sensitive or numerically limited
program. In all cases, rejected filings may be refiled immediately with
the proper payment but there are some slight differences depending upon
if the submission is paper-based or electronically filed. The USCIS
online filing system will permit the rejected applications to remain
accessible for the applicant to print and view. The original rejected
electronic submission would not be available for resubmission with a
new payment; however, the rejected submission may be used as a
reference when a new application is being completed. In cases where the
rejected submission is paper-based, the entire application/petition/
request and supporting documentation are returned and can generally be
refiled with the proper payment instrument.
The proposed amendments will provide several benefits to USCIS.
First, USCIS currently clears payment checks via the ACH by converting
checks to electronic payments. Because USCIS converts checks into ACH
payments, there is currently little or no delay before USCIS knows
whether the check is valueless. Thus, unlike in the past, USCIS would
not begin adjudication until the check has cleared. USCIS benefits by
streamlining the process for adjudicators to only begin work on those
applications with properly filed fees, eliminating the need to hold
applications. USCIS anticipates this streamlined process would help
adjudicators to more efficiently process cases without the need to wait
on payments. This change in process also provides parity to those
applicants who file an application with the correct fees. In addition,
the proposed amendments would lower USCIS administrative costs for
holding and tracking applications and payments. The holding and
tracking of applications requires physical storage space that would no
longer be required with the proposed revisions. USCIS currently incurs
administrative costs through tracking payments in postage costs and
adjudicator time among other costs. USCIS recognizes the unique
situation that these proposed changes may have on H-1B lottery
regulations, which allow numbers available to petitions in the order in
which the petitions are filed.\98\ The H-1B lottery regulations allow
the final receipt date to be any of the first 5 business days on which
petitions subject to the applicable numerical limit may be received.
USCIS then will randomly apply all of the numbers among the petitions
received on any of those 5 business days and conduct a random selection
among the petitions subject to the exemption under section 214(g)(5)(C)
of the Act first. Currently, petitions are still eligible for the H-1B
lottery, despite having dishonored checks or failed payments as long as
the payments are corrected within the provided 14-day or 10-day
timeframe.\99\ These proposed changes, however, would remove these
petitions from the H-1B lottery as the dishonored checks or failed
payments would result in a rejected petition as improperly filed. USCIS
does not have data at this time to estimate the impact on how many
petitions may be affected by these proposed changes. USCIS is also
unable to monetize the cost to the applicant of having a petition
removed from the lottery. DHS requests comments on this impact.
---------------------------------------------------------------------------
\98\ See 8 CFR 214.2(h)(8)(ii)(B).
\99\ See 8 CFR 103.2(a)(7)(ii).
---------------------------------------------------------------------------
b. Failure To Pay the Biometrics Services Fees
DHS also proposes amendments to eliminate provisions governing non-
payment of the biometric service fee. Currently, if a benefit request
is received by DHS without the correct biometric service fee, USCIS
will notify the applicant of the deficiency and take no further action
on the benefit request until payment is received.\100\ Failure to
submit the correct biometric service fee within the time allotted in
the notice will result in denial of the benefit request. To comply with
these provisions, if the biometrics services fee was required and is
missing, USCIS places an application or petition on hold, and suspends
adjudication. If payment is made within the allotted
[[Page 26934]]
time, USCIS resumes processing the benefit request. If the biometric
fee is not paid, the benefit request is denied as abandoned.
---------------------------------------------------------------------------
\100\ See 8 CFR 103.17(b)(1).
---------------------------------------------------------------------------
USCIS proposes to eliminate the provisions requiring that
applications be held while deficient payments are corrected. USCIS is
proposing that if a benefit request is received by USCIS without the
correct biometric service fee, as specified in the form instructions,
USCIS would reject the benefit request.
In order to analyze the number of people who do not pay the
biometric fee, USCIS gathered 6 months of data from USCIS lockbox
facilities.\101\ The data covers from June 1, 2015 to November 30,
2015. During this 6-month period, USCIS lockbox facilities accepted
1,196,134 applications. Of these, 4,963 (.41 percent) of applicants
were issued a notice alerting the applicant that their biometric fees
were missing. Assuming this 6-month trend is typical of the number of
deficient biometric fee notices, the proposed new provision will affect
less than 1 percent of all applications received at the USCIS lockbox
facilities. As previously mentioned, rejected filings may be refiled
immediately. While applicants do not incur monetary costs associated
with the rejection of an application, reapplying for benefits with the
correct fees requires time. Again, USCIS anticipates this new provision
would encourage applicants to file with the appropriate fees.
---------------------------------------------------------------------------
\101\ While USCIS prefers to base assumptions on a longer time
period (ideally 5 years), 6 months was the longest time period for
which this data was available.
---------------------------------------------------------------------------
This change would streamline USCIS' process for handling
applications and petitions when biometrics fees are not submitted when
required. USCIS costs are reduced by eliminating the administrative
handling costs associated with holding cases while biometric fees are
collected.
c. Reduced Fee for Application for Naturalization
The current fee for the Application for Naturalization, Form N-400,
is $595. In most cases, applicants must also pay an $85 biometrics fee,
so the total cost for most applicants is $680. If an applicant cannot
pay the fee, he or she can file a Request for Fee Waiver, Form I-912,
along with their Form N-400. USCIS considers anyone with a household
income below 150 percent of the Federal Poverty Guidelines to be
eligible for a fee waiver. If USCIS approves an applicant's fee waiver,
both the $595 Form N-400 fee and the $85 biometrics fee, where
applicable, are waived.
DHS proposes to increase the Form N-400 fee from $595 to $640, a
$45 (8 percent) increase. The biometrics fee would remain unchanged at
$85. Therefore, if the proposed fees are implemented, the new costs of
Form N-400 plus the biometric fee would total $725. DHS also proposes
an additional fee option for those non-military naturalization
applicants with family incomes greater than 150 percent and not more
than 200 percent of the Federal Poverty Guidelines. Specifically, DHS
proposes that such applicants would receive a 50 percent discount and
only be require to pay a filing fee of $320 for the N-400, plus an
additional $85 for biometrics (for a total of $405). DHS proposes this
reduced fee option to limit any potential economic disincentives that
some eligible naturalization applicants may face when deciding whether
or not to seek citizenship. The lower fee would help ensure that those
who have worked hard to become eligible for naturalization are not
limited by their economic means. In order to qualify for this fee, the
eligible applicant will have to submit a newly proposed Request for
Reduced Fee, Form I-942, along with their Form N-400. Form I-942 will
require the names of everyone in the household and documentation of the
household income to determine if the applicant's household income is
greater than 150 and not more than 200 percent of the Federal Poverty
Guidelines.
As described earlier in the preamble, USCIS estimates that
approximately 11 percent of all Form N-400 applicants, excluding
military applicants, could qualify for the reduced fee. Given the non-
military Form N-400 volume projection estimate of 821,500 annually,
over the biennial period, USCIS expects that 90,365 filers would be
included in the population eligible for the fee reduction.\102\ While
these 90,365 filers represent only the current number of applicants who
would be eligible for the fee reduction, USCIS anticipates an increase
in Form N-400 filings as a result of these proposed changes. USCIS
anticipates that the reduced fee for applicants with qualifying incomes
would remove economic barriers associated with the costs of associated
fees and thus encourage more eligible applicants to file their Form N-
400 applications. While USCIS anticipates an increase in Form N-400
filings due to this proposed fee reduction, we cannot predict how many
more eligible applicants would file their N-400 applications as a
result at this time.
---------------------------------------------------------------------------
\102\ Calculation: 821,500 * 11 percent.
---------------------------------------------------------------------------
USCIS has factored the estimated revenue loss from this product
line into its fee model, so those costs are reallocated over other fee
paying benefit requests. While the costs of the reduced fee are being
reallocated to other fee-paying customers, DHS believes the benefits of
providing a means to promote citizenship among those with limited
economic means outweighs the cost reallocation impacts.
As previously mentioned, an eligible applicant would have to submit
a Form I-942 along with their N-400 application to qualify for this
reduced fee. While USCIS is not imposing an additional fee for Form I-
942, we have estimated the opportunity cost of time to applicants to
complete the form. The total opportunity cost of time for applicants
would be $717,724, if all 90,365 eligible applicants apply for the
reduced fee.\103\ The federal minimum wage rate\104\ of $7.25 was used
as the hourly wage rate as the anticipated applicants are asserting
they cannot afford to pay the full USCIS fee. The anticipated
applicants are assumed to be from occupations having a less than
average income. The Bureau of Labor Statistics (BLS) reports the
average employer costs for employee compensation for all civilian
workers in major occupational groups and industries. Using the most
recent BLS report, DHS calculated a benefits-to-wage multiplier of 1.46
to estimate the full opportunity costs to applicants, including
employee wages and salaries and the full costs of benefits such as paid
leave, insurance, and retirement.\105\ In order to anticipate the full
opportunity cost of time to applicants, we multiplied the federal
minimum wage rate by 1.46 to account for the full cost of employee
benefits for a total of $10.59. The time burden estimate was developed
by USCIS with an average of 45 minutes (or .75 of an hour) to complete
Form I-942. Therefore, the opportunity cost of time per petition is
[[Page 26935]]
$7.94.\106\ This additional burden is offset by the benefits received
through a reduced fee.
---------------------------------------------------------------------------
\103\ Total Opportunity Costs of Time to Applicants = Expected
Filers (90,365) * (Full Cost of Employee Benefits ($10.59) * Time
Burden (.75 hr.)).
\104\ U.S. Department of Labor, Wage and Hour Division. The
minimum wage in effect as of January 20, 2016. Available at http://www.dol.gov/general/topic/wages/minimumwage.
\105\ The benefits-to-wage multiplier is calculated as follows:
(All Workers Total Employee Compensation per hour)/(Wages and
Salaries per hour). See Economic News Release, U.S. Department of
Labor, Bureau of Labor Statistics, Table 1. Employer Costs per hour
worked for employee compensation and costs as a percent of total
compensation: Civilian workers, by major occupational and industry
group (Sept. 2015), available at http://www.bls.gov/news.release/pdf/ecec.pdf.
\106\ Calculation: $10.59 hourly wage rate * .75 hour.
---------------------------------------------------------------------------
d. Refunds
DHS is also proposing to amend regulations for fee refunds. In
general, and except for a premium processing fee under 8 CFR
103.7(e)(2)(i), USCIS does not refund a fee regardless of the decision
on the immigration benefit request. USCIS makes very rare exceptions
when USCIS determines that an administrative error occurred resulting
in the inadvertent collection of a fee. USCIS errors may include:
Unnecessary filings. Cases in which USCIS (or DOS in the
case of an immigration benefit request filed overseas) erroneously
requests that an individual file an unnecessary form along with the
associated fee; and
Accidental Payments. Cases in which an individual pays a
required fee more than once or otherwise pays a fee in excess of the
amount due and USCIS (or the DOS in the case of an immigration benefit
request filed overseas) erroneously accepts the erroneous fee.
DHS is proposing to codify into regulation the continuance of
providing these refunds under circumstances where refunds are necessary
due to obvious USCIS error. Under this proposal, individuals would
continue to request a refund by the current process. The current
process requires that an individual call the customer service line or
submit a written request for a refund to the office having jurisdiction
over the relevant immigration benefit request.
Any USCIS refunds provided are generally due to obvious USCIS
errors resulting from system behavior issues or human error. The
anticipation of future electronic filings also spurs the need for this
provision. Currently, DHS provides fee refunds and amounts to
applicants as shown in Table 12. Over the past 3 fiscal years, an
annual average of 5,363 refunds were provided by USCIS, resulting in an
average of $2.1 million refunded. This is approximately $396 per
refund. These numbers and amounts of refunds do not include premium
processing refunds regulated under 8 CFR 103.7(e)(2)(i). In the context
of the number of fees collected by USCIS, this average amount of
refunds is still less than 1 percent of the total fees collected.
Table 12--Amount and Number of Fee Refunds Provided by USCIS
------------------------------------------------------------------------
Amount Number of
Fiscal year refunded refunds
------------------------------------------------------------------------
2013.......................................... $2,674,290 7,405
2014.......................................... 1,805,006 4,198
2015.......................................... 1,890,638 4,485
Average....................................... 2,123,311 5,363
------------------------------------------------------------------------
Source: Department of Homeland Security, U.S. Immigration and Customs
Enforcement, Burlington Finance Center.
These proposed amendments would benefit applicants that might
accidently submit payments twice. USCIS anticipates this to be a bigger
issue as more forms and associated fees begin to be collected through
electronic means. Applicants would recoup any fees that were submitted
due to these electronic systems issues. USCIS would benefit by having
clear regulatory authority to justify the few cases in which refunds
are provided.
There may be some administrative costs associated with the issuance
of refunds to USCIS, as well as some time burden costs to USCIS
adjudicators who process these refund requests. It may be possible to
see a potential increase initially in requests for refunds due to the
visibility of this rule; however, USCIS does not anticipate a sustained
increase as the parameters of the refunds issued are not proposed to be
changed from current policy. There may also be a potential increase in
the time burden costs for USCIS adjudicators due to potential initial
increases in refund requests. USCIS does not have cost estimates at
this time indicating the number of hours required to process and issue
these refunds. There may also be some opportunity costs of time to
applicants who submit a refund request; however, USCIS anticipates this
cost is offset by the benefit gained in receiving a refund.
F. Executive Order 13132 (Federalism)
This proposed 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, it is determined that this proposed 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 proposed rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
H. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109
Stat. 163 (1995) (PRA), DHS is required to submit to OMB, for review
and approval, any reporting or recordkeeping requirements inherent in a
rule. USCIS is revising two information collections, adding a new
information collection in association with this rulemaking action, and
requesting public comments on the proposed information collection
changes as follows: Application for Naturalization, Form N-400, to
collect information necessary to document the applicant's eligibility
for the reduced fee proposed in this rule at 8 CFR
103.7(b)(1)(i)(AAA)(1); Annual Certification of Regional Center, Form
I-924A, and the Application for Regional Center Designation Under the
Immigrant Investor Program, Form I-924, to add the instructions
necessary to require the annual fee; and, Request for Reduced Fee, Form
I-942, to document the applicant's eligibility for the reduced fee. DHS
is requesting comments on the information collection changes included
in this rulemaking. Comments on this revised 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, such as permitting electronic
submission of responses.
Overview of Information Collection--Form N-400
a. Type of information collection: Revision of a Currently Approved
Collection.
b. Abstract: USCIS uses the information gathered on Form N-400 to
make a determination as to a respondent's eligibility to naturalize and
become a U.S. citizen. USCIS is
[[Page 26936]]
proposing changes to the form instructions to notify the public of the
information needed to document an applicant's eligibility for the
proposed reduced fee.
c. Title of Form/Collection: Application for Naturalization.
d. Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: Form N-400; USCIS.
e. Affected public who will be asked or required to respond:
Individuals or households.
f. An estimate of the total number of respondents: 830,673
respondents.
g. Hours per response: The estimated hour burden per response for
the paper filing of the N-400 is 9.17 hours per response. The estimated
hour burden per response for the electronic filing of the N-400 is 3.5
hours per response. The estimated hour burden per response for the
biometric processing associated with the N-400 is 1.17 hours per
response.
h. Total Annual Reporting Burden: 8,118,167 hours.
Overview of Information Collection--Forms I-924 and I-924A
a. Type of information collection: Revision to a currently approved
information collection.
b. Abstract: This collection is used to demonstrate a regional
center's continued eligibility for regional center designation.
c. Title of Form/Collection: Application for Regional Center
Designation Under the Immigrant Investor Program/Annual Certification
of Regional Center.
d. Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: Form I-924 and Form I-924A; USCIS.
e. Affected public who will be asked or required to respond:
Businesses or other for-profit Entities; or State, local or Tribal
Government
f. An estimate of the total number of respondents:
Form I-924--400 respondents.
Form I-924A--882 respondents.
g. Hours per response: For Form I-924, 51 hours; and Form I-924A,
14 hours.
h. Total Annual Reporting Burden: 32,748 hours.
Overview of Information Collection--Form I-942
a. Type of information collection: New information collection.
b. Abstract: This collection is used for an applicant to request a
reduced fee and document that annual household income is between 150%
and 200% of the FPG.
c. Title of Form/Collection: Request for Reduced Fee.
d. Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: Form I-942, USCIS.
e. Affected public who will be asked or required to respond:
Individuals.
f. An estimate of the total number of respondents: 90,365
respondents.
g. Hours per response: .75 hours.
h. Total Annual Reporting Burden: 67,774 hours.
Comments concerning these collections and forms can be submitted to
the Department of Homeland Security, U.S. Citizenship and Immigration
Services, Office of Policy and Strategy, Chief, Regulatory Coordination
Division, 20 Massachusetts Avenue NW., Washington, DC 20529-2020.
Please include the OMB control number in the comment letter.
Please also submit comments on the forms to OMB by:
Email: [email protected];
Facsimile at 202-395-7285, or;
Mail: Desk Officer for USCIS, Office of Information and
Regulatory Affairs, Office of Management and Budget, 725 17th St. NW.,
Washington, DC 20503
The changes to the proposed fees will require minor amendments to
USCIS forms to reflect the new fees. The necessary changes to the
annual cost burden and to the forms will be submitted to OMB when a
final rule is submitted to OMB.
List of Subjects
8 CFR Part 103
Administrative practice and procedures, Authority delegations
(government agencies), Freedom of Information, Privacy, Reporting and
recordkeeping requirements, and Surety bonds.
8 CFR Part 204
Administrative practice and procedure, Immigration, Reporting and
recordkeeping requirements.
Accordingly, DHS proposes to amend chapter I of title 8 of the Code
of Federal Regulations as follows:
PART 103--IMMIGRATION BENEFITS; BIOMETRIC REQUIREMENTS;
AVAILABILITY OF RECORDS
0
1. The authority citation for part 103 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552(a); 8 U.S.C. 1101, 1103, 1304,
1356; 31 U.S.C. 9701; Pub. L. 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 ; Pub. L. 112-54.
0
2. Section 103.2 is amended by:
0
a. Revising paragraph (a)(1);
0
b. Revising paragraph (a)(7); and
0
c. Revising paragraph (b)(9).
The revisions read as follows:
Sec. 103.2 Submission and adjudication of benefit requests.
(a) * * *
(1) Preparation and submission. Every form, benefit request, or
other document must be submitted to DHS and executed in accordance with
the form instructions regardless of a provision of 8 CFR chapter I to
the contrary. The form's instructions are hereby incorporated into the
regulations requiring its submission. Each form, benefit request, or
other document must be filed with the fee(s) required by regulation.
Filing fees generally are non-refundable and, except as otherwise
provided in this chapter I, must be paid when the benefit request is
filed.
* * * * *
(7) Benefit requests submitted. (i) USCIS will consider a benefit
request received and will record the receipt date as of the actual date
of receipt at the location designated for filing such benefit request
whether electronically or in paper format.
(ii) A benefit request which is rejected will not retain a filing
date. A benefit request will be rejected if it is not:
(A) Signed with valid signature;
(B) Executed;
(C) Filed in compliance with the regulations governing the filing
of the specific application, petition, form, or request; and
(D) Submitted with the correct fee(s). If a financial instrument
used to pay a fee is returned as unpayable, the filing will be rejected
and a charge will be imposed in accordance with 8 CFR 103.7(a)(2).
(iii) A rejection of a filing with USCIS may not be appealed.
(b) * * *
(9) Appearance for interview or biometrics. USCIS may require any
applicant, petitioner, sponsor, beneficiary, or individual filing a
benefit request, or any group or class of such persons submitting
requests, to appear for an interview and/or biometrics collection.
USCIS may require the payment of the biometrics services fee in 8 CFR
103.7(b)(1)(i)(C) or that the individual obtain a fee waiver. Such
appearance and fee may also be required by law, regulation, form
instructions, or Federal Register notice applicable to the request
type. USCIS will notify the affected person of the date, time and
location of any required appearance under this paragraph. Any person
required to appear under this paragraph
[[Page 26937]]
may, prior to the scheduled date and time of the appearance, either:
(i) Appear before the scheduled date and time;
(ii) For good cause, request that the biometric services
appointment be rescheduled; or
(iii) Withdraw the benefit request.
* * * * *
0
4. Section 103.7 is amended by revising paragraphs (a)(2) and (b)(1) to
read as follows:
Sec. 103.7 Fees.
* * * * *
(a) * * *
(2) Remittances must be drawn on a bank or other institution
located in the United States and be payable in United States currency.
Remittances must be made payable in accordance with the guidance
specific to the applicable U.S. Government office when submitting to a
Department of Homeland Security office located outside of the United
States. Remittances to the Board of Immigration Appeals must be made
payable to the ``United States Department of Justice,'' in accordance
with 8 CFR 1003.8. A charge of $30.00 will be imposed if a remittance
in payment of a fee or any other matter is not honored by the bank or
financial institution on which it is drawn. If the remittance is found
uncollectible the provisions of 8 CFR 103.2(a)(7)(ii) apply, no receipt
will be issued, and if a receipt was issued, it is void and the benefit
request loses its receipt date.
(b) Amounts of fees. (1) Established fees and charges. (i) USCIS
fees. A request for immigration benefits submitted to USCIS must
include the required fee as established under this section. The fees
established in this section are associated with the benefit, the
adjudication, or 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 provide 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 fee. For capturing, storing, and using
biometric information (Biometric Fee). A service fee of $85 will be
charged to pay for background checks and have their biometric
information captured, stored, and used for any individual who is
required to submit biometric information for an application, petition,
or other request for certain immigration and naturalization benefits
(other than asylum or refugee status) or actions. USCIS will not charge
a biometric service fee when:
(1) An applicant under 8 CFR 204.3 submits to USCIS a written
request for an extension of the approval period of an Application for
Advance Processing of an Orphan Petition (``Application''), if the
request is submitted before the approval period expires and the
applicant has not yet filed a Petition to Classify Orphan as an
Immediate Relative (``Petition'') in connection with the approved
Application. The applicant may submit only one extension request
without having to pay an additional biometric service fee. If the
extension of the approval expires before the applicant files an
associated Petition, then the applicant must file either a new
Application or a Petition, and pay a new filing fee and a new biometric
service fee.
(2) The application or petition fee for the associated request has
been waived under paragraph (c) of this section; or
(3) The associated benefit request is one of the following:
(i) Application for Posthumous Citizenship, Form N-644;
(ii) Refugee/Asylee Relative Petition, Form I-730;
(iii) Application for T Nonimmigrant Status, Form I-914;
(iv) Petition for U Nonimmigrant Status, Form I-918;
(v) 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;
(vi) Application to Register Permanent Residence or Adjust Status,
Form I-485, from an asylee under paragraph (b)(1)(i)(U) of this
section;
(vii) 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 foreign national 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
(viii) 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) USCIS Immigrant Fee. For DHS domestic processing and issuance
of required documents after an immigrant visa is issued by the U.S.
Department of State: $220.
(E) Request for a search of indices to historical records to be
used in genealogical research, Form G-1041: $65. The search request fee
is not refundable.
(F) Request for a copy of historical records to be used in
genealogical research, Form G-1041A: $65. 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, to
replace an obsolete card or to replace one lost, mutilated, or
destroyed, or for a change in name: $455.
(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, to replace one lost, mutilated, or destroyed:
$445.
(I) Petition for a Nonimmigrant Worker, Form I-129. For filing a
petition for a nonimmigrant worker: $460.
(J) Petition for Nonimmigrant Worker in CNMI, Form I-129CW. For an
employer to petition on behalf of one or more beneficiaries: $460 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: $535; there is no fee
for a K-3 spouse as designated in 8 CFR 214.1(a)(2) who is the
beneficiary of an immigrant petition filed by a United States citizen
on a Petition for Alien Relative, Form I-130.
(L) Petition for Alien Relative, Form I-130. For filing a petition
to classify status of a foreign national relative for issuance of an
immigrant visa under section 204(a) of the Act: $535.
(M) Application for Travel Document, Form I-131. For filing an
application for travel document:
(1) $135 for a Refugee Travel Document for an individual age 16 or
older.
(2) $105 for a Refugee Travel Document for a child under the age of
16.
(3) $575 for advance parole and any other travel document.
(4) No fee if filed in conjunction with a pending or concurrently
filed Form I-485 with fee that was filed on or after July 30, 2007.
(N) Immigrant Petition for Alien Worker, Form I-140. For filing a
petition to classify preference status of an alien
[[Page 26938]]
on the basis of profession or occupation under section 204(a) of the
Act: $700.
(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: $930.
(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: $930.
(Q) Application for Waiver for Passport and/or Visa, Form I-193.
For filing an application for waiver of passport and/or visa: $930.
(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 instead of deportation: $930.
(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: $675. 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 filed by or on behalf of an individual seeking
special immigrant visa or status as an Iraqi or Afghan national who was
employed by 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: $435. The following requests are exempt from this fee:
(1) A petition seeking classification as an Amerasian;
(2) A self-petition for immigrant status as a battered or abused
spouse, parent, or child of a U.S. citizen or lawful permanent
resident; or
(3) A petition for special immigrant juvenile status; or
(4) A petition seeking special immigrant visa or status an Iraqi or
Afghan national who was employed by 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) $1,140 for an applicant 14 years of age or older; or
(2) $750 for an applicant under the age of 14 years when:
(i) The application is submitted concurrently for adjudication with
the Form I-485 of a parent; and
(ii) The applicant is seeking to adjust status as a derivative of
his or her 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 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, when the applicant is the spouse, or the
unmarried child less than 21 years of age of an individual with lawful
immigration status 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: $3,675.
(X) Application To Extend/Change Nonimmigrant Status, Form I-539.
For filing an application to extend or change nonimmigrant status:
$370.
(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: $775.
(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.): $775. 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 before the expiration date of
approval; and
(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 before 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: $930.
(BB) Application for Provisional Unlawful Presence Waiver, Form I-
601A. For filing an application for provisional unlawful presence
waiver: $630.
(CC) Application for Waiver of the Foreign Residence Requirement
(under Section 212(e) of the Immigration and Nationality Act, as
Amended), Form I-612. For filing an application for waiver of the
foreign-residence requirement under section 212(e) of the Act: $930.
(DD) Application for Status as a Temporary Resident under Section
245A of the Immigration and Nationality Act, Form I-687. For filing an
application for status as a temporary resident under section 245A(a) of
the Act: $1,130.
(EE) Application for Waiver of Grounds of Inadmissibility under
Sections 245A or 210 of the Immigration and Nationality Act, Form I-
690. For filing an application for waiver of a ground of
inadmissibility under section 212(a) of the Act as amended, in
conjunction with the application under sections 210 or 245A of the Act,
or a petition under section 210A of the Act: $715.
(FF) Notice of Appeal of Decision under Sections 245A or 210 of the
Immigration and Nationality Act (or a petition under section 210A of
the Act), Form I-694. For appealing the denial of an application under
sections 210 or 245A of the Act, or a petition under section 210A of
the Act: $890.
(GG) Application to Adjust Status from Temporary to Permanent
Resident (Under Section 245A of Pub. L. 99-603), Form I-698. For filing
an application to adjust status from temporary to permanent resident
(under section 245A of Pub. L. 99-603): $1,670. The adjustment date is
the date of filing of the application for permanent residence or the
applicant's eligibility date, whichever is later.
(HH) Petition to Remove Conditions on Residence, Form I-751. For
filing a petition to remove the conditions on residence based on
marriage: $595.
(II) Application for Employment Authorization, Form I-765. $410; no
fee if filed in conjunction with a pending or concurrently filed Form
I-485 with fee that was filed on or after July 30, 2007.
[[Page 26939]]
(JJ) 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 $775 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 $775 is required, regardless
of the sequence of submission of the immigration benefit.
(KK) 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: $775.
(LL) 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: $385.
(MM) Application for Family Unity Benefits, Form I-817. For filing
an application for voluntary departure under the Family Unity Program:
$600.
(NN) Application for Temporary Protected Status, Form I-821. For
first time applicants: $50. There is no fee for re-registration.
(OO) Application for Action on an Approved Application or Petition,
Form I-824. For filing for action on an approved application or
petition: $465.
(PP) Petition by Entrepreneur to Remove Conditions, Form I-829. For
filing a petition by entrepreneur to remove conditions: $3,750.
(QQ) 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 DHS, 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 will 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
foreign nationals in the same proceedings).
(3) The $165 fee is not required if the Form I-881 is referred to
the Immigration Court by DHS.
(RR) Application for Authorization to Issue Certification for
Health Care Workers, Form I-905: $230.
(SS) 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 fee to request premium processing: $1,225. The fee for
a request for premium processing fee may be adjusted annually by notice
in the Federal Register based on inflation according to the Consumer
Price Index (CPI). The fee for Premium Processing Service may not be
waived.
(TT) Application for Civil Surgeon Designation, Form I-910. For
filing an application for civil surgeon designation: $785. 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.
(UU) Application for T Nonimmigrant Status, Form I-914. No fee.
(VV) Application for U Nonimmigrant Status, Form I-918. No fee.
(WW) Application for Regional Center Designation under the
Immigrant Investor Program, Form I-924. For filing an application for
regional center designation under the Immigrant Investor Program:
$17,795.
(XX) Annual Certification of Regional Center, Form I-924A. To
provide updated information and certify that an Immigrant Investor
Regional Center has maintained their eligibility: $3,035.
(YY) 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: $230.
(ZZ) Application to File Declaration of Intention, Form N-300. For
filing an application for declaration of intention to become a U.S.
citizen: $270.
(AAA) 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: $700. 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.
(BBB) Application for Naturalization, Form N-400. For filing an
application for naturalization: $640. Except:
(1) The fee for an applicant whose documented income is greater
than 150% and not more than 200% of the federal poverty level is $320.
(2) No fee is charged an applicant who meets the requirements of
sections 328 or 329 of the Act with respect to military service.
(CCC) 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: $355.
(DDD) Application for Replacement Naturalization/Citizenship
Document, Form N-565. For filing an application for a certificate of
naturalization or declaration of intention in place 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: $555. 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.
(EEE) 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: $1,170. There is no fee for any
application filed by a member or veteran of any branch of the United
States Armed Forces.
(FFF) 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:
$1,170.
(GGG) American Competitiveness and Workforce Improvement Act
(ACWIA) fee. $1,500 or $750 for filing certain H-1B petitions as
described in 8 CFR 214.2(h)(19) and USCIS form instructions.
(HHH) Fraud detection and prevention fee. $500 for filing certain
H-1B and L petitions, and $150 for H-2B petitions as described in 8 CFR
214.2(h)(19).
(III) 9-11 Response and Biometric Entry-Exit Fee for H-1B Visa.
$4,000 for certain petitioners who employ 50 or more employees in the
United States if more than 50 percent of the petitioner's employees are
in H-1B, L-1A or L-1B nonimmigrant status. Collection of this fee is
scheduled to end on September 30, 2025.
(JJJ) 9-11 Response and Biometric Entry-Exit Fee for L-1 Visa.
$4,500 for
[[Page 26940]]
certain petitioners who employ 50 or more employees in the United
States, if more than 50 percent of the petitioner's employees are in H-
1B, L-1A or L-1B nonimmigrant status. Collection of this fee is
scheduled to end on September 30, 2025.
* * * * *
0
5. Section 103.16 is amended by revising the first sentence of
paragraph (a) to read as follows:
Sec. 103.16 Collection, use and storage of biometric information.
(a) Use of biometric information. An individual may be required to
submit biometric information by law, regulation, Federal Register
notice or the form instructions applicable to the request type or if
required in accordance with 8 CFR 103.2(b)(9). * * *
* * * * *
0
6. Section 103.17 is amended by revising paragraph (b) to read as
follows:
Sec. 103.17 Biometric service fee.
* * * * *
(b) Non-payment. If a benefit request is received by DHS without
the correct biometric services fee as provided in the form
instructions, DHS will reject the benefit request.
PART 204--IMMIGRANT PETITIONS
0
7. 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
8. Section 204.6 is amended by revising paragraph (m)(6) to read as
follows:
Sec. 204.6 Petitions for employment creation aliens.
* * * * *
(m) * * *
(6) Continued participation requirements for regional centers. (i)
Regional centers approved for participation in the program must:
(A) Continue to meet the requirements of section 610(a) of the
Appropriations Act.
(B) Provide USCIS with updated information annually, and/or as
otherwise requested by USCIS, to demonstrate that the regional center
is continuing to promote economic growth, including increased export
sales, improved regional productivity, job creation, and increased
domestic capital investment in the approved geographic area, using a
form designated for this purpose; and
(C) Pay the fee provided by 8 CFR 103.7(b)(1)(i)(WW).
(ii) USCIS will issue a notice of intent to terminate the
designation of a regional center in the program if:
(A) A regional center fails to submit the information required in
paragraph (m)(6)(i)(B) of this section, or pay the associated fee; or
(B) USCIS determines 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.
(iii) A notice of intent to terminate the designation of a regional
center will be sent to the regional center and set forth the reasons
for termination.
(iv) The regional center will be provided 30 days from receipt of
the notice of intent to terminate to rebut the ground or grounds stated
in the notice of intent to terminate.
(v) USCIS will notify the regional center of the final decision. If
USCIS determines that the regional center's participation in the
program should be terminated, USCIS will state the reasons for
termination. The regional center may appeal the final termination
decision in accordance with 8 CFR 103.3.
(vi) A regional center may elect to withdraw from the program and
request a termination of the regional center designation. The regional
center must notify USCIS of such election in the form of a letter or as
otherwise requested by USCIS. USCIS will notify the regional center of
its decision regarding the withdrawal request in writing.
* * * * *
Jeh Charles Johnson,
Secretary.
[FR Doc. 2016-10297 Filed 5-3-16; 8:45 am]
BILLING CODE 9111-97-P