[Federal Register Volume 81, Number 205 (Monday, October 24, 2016)]
[Rules and Regulations]
[Pages 73292-73332]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-25328]
[[Page 73291]]
Vol. 81
Monday,
No. 205
October 24, 2016
Part IV
Department of Homeland Security
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8 CFR Parts 103, 204, and 205
U.S. Citizenship and Immigration Services Fee Schedule; Final Rule
Federal Register / Vol. 81 , No. 205 / Monday, October 24, 2016 /
Rules and Regulations
[[Page 73292]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 103, 204, and 205
[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: Final rule.
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SUMMARY: The Department of Homeland Security (DHS) is adjusting the fee
schedule for immigration and naturalization benefit requests processed
by U.S. Citizenship and Immigration Services (USCIS). The fee schedule
was last adjusted on November 23, 2010. USCIS conducted a comprehensive
fee review for the fiscal year (FY) 2016/2017 biennial period and
determined that current fees do not recover the full cost of services
provided. DHS has determined that adjusting the fee schedule is
necessary to fully recover costs and maintain adequate service. DHS
published a proposed fee schedule on May 4, 2016.
Under this final rule, DHS will increase fees by a weighted average
of 21 percent; establish a new fee of $3,035 covering USCIS costs
related to processing the Employment Based Immigrant Visa, Fifth
Preference (EB-5) Annual Certification of Regional Center, Form I-924A;
establish a three-level fee for the Application for Naturalization,
Form N-400; and 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.
DATES: This rule is effective December 23, 2016. Applications or
petitions mailed, postmarked, or otherwise filed on or after December
23, 2016 must include the new fee.
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. Executive Summary
II. Background
III. Final Rule
A. Changes in the Final Rule
B. Corrections
C. Summary of Final Fees
IV. Public Comments on the Proposed Rule
A. General Comments
B. Relative Amount of Fees
1. Proposed Fees Are Too High
a. Barrier to Family Reunification
b. Impact on Low-Income Individuals; Low Volume Reallocation
2. Comments on Specific Fees and Adjustments
a. Application for Certificate of Citizenship, Forms N-600/600K
b. Adoption, Forms I-600/600A/800/800A
c. Petition for a Nonimmigrant Worker, Form I-129
d. Application To Register Permanent Residence or Adjust Status,
Form I-485, and Interim Benefits
e. Application for Travel Document, Form I-131
f. Students
g. Application for Replacement Naturalization/Citizenship
Certificate, Form N-565
h. Petition for Alien Relative, Form I-130
i. Application To Replace Permanent Resident Card, Form I-90
j. Genealogy, Forms G-1041/1041A
k. Petition To Remove Conditions on Residence, Form I-751
l. Petition for Alien Fianc[eacute](e), Form I-129F
m. Petition for Amerasian, Widow(er), or Special Immigrant, Form
I-360
n. Notice of Appeal or Motion, Form I-290B
o. Application for Civil Surgeon Designation, Form I-910
p. Application for Advance Permission to Enter as a
Nonimmigrant, Form I-192, and Application for Waiver of Passport
and/or Visa, Form I-193
C. Fee Waivers and Exemptions
D. Naturalization
E. Improve Service and Reduce Inefficiencies
F. Premium Processing
G. Immigrant Investors
1. Application for Regional Center Under the Immigrant Investor
Program, Form I-924
2. Immigrant Petition by Alien Entrepreneur, Form I-526
3. Petition by Entrepreneur To Remove Conditions on Permanent
Resident Status, Form I-829
H. Methods Used To Determine Fee Amounts
1. Recovery of Full Cost Without Appropriations
2. Exclusion of Temporary or Uncertain Costs, Items, and
Programs
3. Setting Fees by Benefit Type
4. Income-Based Fee Structure
5. Reduction in USCIS Costs
I. Dishonored Payments
J. Refunds
K. Visa Allocation
L. Credit Card Payments
V. Statutory and Regulatory Reviews
A. Regulatory Flexibility Act--Final Regulatory Flexibility
Analysis
1. A Statement of the Need for, and Objectives of, the Rule
2. A Statement of the Significant Issues Raised by the Public
Comments in Response to the Initial Regulatory Flexibility Analysis,
A Statement of the Assessment of the Agency of Such Issues, and A
Statement of Any Changes Made in the Proposed Rule as a Result of
Such Comments
a. Comments on Form I-129
b. Comments on Forms I-360 and I-485
c. Comments on Forms G-1041 and G-1041A
d. Comments on Form I-924A
3. The Response of the Agency to Any Comments Filed by the Chief
Counsel for Advocacy of the Small Business Administration in
Response to the Proposed Rule, and a Detailed Statement of Any
Change Made to the Proposed Rule in the Final Rule as a Result of
the Comments
4. A Description of and an Estimate of the Number of Small
Entities to Which the Rule Will Apply or an Explanation of Why No
Such Estimate is Available
a. Petition for a Nonimmigrant Worker, Form I-129
b. Immigrant Petition for an Alien Worker, Form I-140
c. Application for Civil Surgeon Designation, Form I-910
d. Regional Center Designation Under the Immigrant Investor
Program, Form I-924 and I-924A
e. Petition for Amerasian, Widow(er), or Special Immigrant, Form
I-360
5. A Description of the Projected Reporting, Recordkeeping and
Other Compliance Requirements of the Rule, Including an Estimate of
the Classes of Small Entities Which Will Be Subject to the
Requirement and the Type of Professional Skills Necessary For
Preparation of the Report or Record
6. A Description of the Steps the Agency Has Taken To Minimize
the Significant Economic Impact on Small Entities Consistent With
the Stated Objectives of Applicable Statutes, Including a Statement
of the Factual, Policy, and Legal Reasons for Selecting the
Alternative Adopted in the Final Rule and Why Each One of the Other
Significant Alternatives to the Rule Considered by the Agency Which
Affect the Impact on Small Entities was Rejected
B. Unfunded Mandates Reform Act
C. Small Business Regulatory Enforcement Fairness Act
D. Congressional Review Act
E. Executive Orders (E.O.) 12866 and 13563 (Regulatory Planning
and Review)
1. Background and Purpose of the Final Rule
2. Amendments and Impacts of Regulatory Change
a. Dishonored Payments
b. Failure To Pay the Biometric Services Fees
c. Reduced Fee for Application for Naturalization
d. Refunds
F. Executive Order 13132 (Federalism)
G. Executive Order 12988 (Civil Justice Reform)
H. Family Assessment
[[Page 73293]]
I. Paperwork Reduction Act--Comments on the Proposed Information
Collection Changes
1. Request for Reduced Fee, Form I-942
2. Annual Certification of Regional Center, Form I-924A
I. Executive Summary
The Department of Homeland Security (DHS) is adjusting the fee
schedule for U.S. Citizenship and Immigration Services (USCIS). USCIS
conducted a comprehensive fee review for the FY 2016/2017 biennial
period, refined its cost accounting process, and determined that
current fees do not recover the full costs of services provided. DHS
has determined that adjusting USCIS' fee schedule is necessary to fully
recover costs and maintain adequate service.
In this final rule, DHS will:
Adjust fees by a weighted average increase of 21 percent
to ensure that fees for each benefit type are adequate to cover USCIS'
costs associated with processing applications and petitions, as well as
providing similar benefits to asylum and refugee applicants \1\ and
certain other immigrants at no charge.
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\1\ Although the President has announced an increase in the
refugee admissions ceiling to 110,000, the final fee structure
includes costs for only 100,000, which was the anticipated ceiling
at the time that the fee review was conducted.
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Establish a new fee of $3,035 to recover the full cost of
processing the Employment Based Immigrant Visa, Fifth Preference (EB-5)
Annual Certification of Regional Center, Form I-924A.
Establish a three-level fee for Application for
Naturalization, Form N-400. First, DHS will increase the standard fee
for Form N-400 from $595 to $640. Second, DHS will continue to charge
no fee to applicants who meet 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
will 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.
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.
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.
II. Background
DHS published a notice of proposed rulemaking (NPRM) on May 4,
2016, which proposed adjusting USCIS' fee schedule by a weighted
average increase of 21 percent. See U.S. Citizenship and Immigration
Services Fee Schedule; Proposed Rule, 81 FR 26904. This final rule
establishes the first fee adjustment since 2010. It is a result of a
comprehensive fee review conducted by USCIS for the FY 2016/2017
biennial period. During the fee review, USCIS determined that current
fees do not recover the full costs of processing immigration benefits.
This final rule reflects full cost recovery including program costs
that DHS excluded in the 2010 final rule. USCIS provided the FY 2016/
2017 Immigration Examinations Fee Account (IEFA) Fee Review Supporting
Documentation (supporting documentation), which includes budget
methodology, and regulatory flexibility analysis, in the public docket.
See http://www.regulations.gov, docket number USCIS-2016-0001.
This final rule includes the addition of fee surcharges applied to
certain immigration benefits to fully recover costs related to the
USCIS Refugee, Asylum, and International Operations Directorate (RAIO),
the Systematic Alien Verification for Entitlements (SAVE) program (to
the extent not recovered from users),\2\ and the Office of
Citizenship.\3\ In the 2010 final rule, USCIS assumed it would continue
receiving funding for these programs through congressional
appropriations. See U.S. Citizenship and Immigration Services Fee
Schedule, 75 FR 58962, 58966 (Sept. 24, 2010). The 2010 final rule
removed asylum, refugee, and military naturalization costs from the fee
structure and assumed that immigration fees would not be used to
recover the costs of adjudicating asylum, refugee, and military
naturalization requests, as well as costs associated with the SAVE
program and the Office of Citizenship. The final rule removed all of
these costs from the USCIS fee structure, instead assuming that these
services would be funded using appropriated funds. See 75 FR 58963.
That budget request was not fulfilled, and USCIS was left to fund the
cost of these programs after having removed the surcharge. See Pub. L.
112-10, sec. 1639 (Apr. 15, 2011).\4\
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\2\ The SAVE program was established in 1987 by the Immigration
Reform and Control Act, Pub. L. 99-603, sec. 121(c) (Nov. 6, 1986),
which required the Commissioner of the Immigration and
Naturalization Service 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.
\3\ 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.''
\4\ USCIS received $29.95 million of the requested $248 million
to fund a portion of the refugee and asylum processing administered
under the RAIO Directorate and military naturalization processing in
Fiscal Year 2011. USCIS has not received any substantial
appropriations for these programs since 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. Similarly, USCIS received no FY 2016 discretionary
appropriations for the SAVE program or for the Office of
Citizenship. See DHS Appropriations Act 2016, Pub. L. 114-113, div.
F. (Dec. 18, 2015).
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DHS issues this final rule consistent with the Immigration and
Nationality Act (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) and the Chief Financial Officers
(CFO) Act of 1990, 31 U.S.C. 901-03 (requiring each agency's 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).
The NPRM provides additional information on the legal authority, non-
statutory guidance, and background on the IEFA fees. See 81 FR 26906.
III. Final Rule
A. Changes in the Final Rule
This section details the changes made in this final rule as
compared to the NPRM. These changes are summarized as follows:
1. Application to Register Permanent Residence or Adjust Status,
Form I-485. DHS has revised the regulatory language regarding the fee
for the Application to Register Permanent Residence or Adjust Status,
Form I-485, to clarify that the proposed $750 discounted fee is
available for all applicants under 14 years old who submit their Form
I-485 with that of a parent. These revisions accord the fee regulations
with the current Form I-485 instructions and intake practices. See new
8 CFR 103.7(b)(1)(i)(U)(2); 81 FR 26919. The section later in this
preamble entitled, ``Adjustment of Status, Form I-485, and Interim
Benefits,'' provides more details about this change.
[[Page 73294]]
2. Dishonored payments. DHS has also clarified the regulations
governing USCIS actions when a check used to pay the required fee is
dishonored by the remitter's bank. Under this final rule, USCIS will
submit all initially rejected payments to the applicant's bank a second
time for it to clear or be rejected. 8 CFR 103.2(a)(7)(ii)(D). If the
check is rejected again following re-submission by USCIS, it will
reject the case for fee non-payment. If the case has been approved,
USCIS will send a notice of intent to revoke the approval. The section
later in this preamble entitled, ``Dishonored Payments,'' provides more
details about this change.
3. Application for Advance Permission to Enter as a Nonimmigrant,
Form I-192, and Application for Waiver for Passport and/or Visa, Form
I-193. DHS has made adjustments to the proposed fees in the final rule
for the Application for Advance Permission to Enter as a Nonimmigrant,
Form I-192, and the Application for Waiver for Passport and/or Visa,
Form I-193. For the reasons outlined in section IV.B.2.p. of this
preamble, the fees that will be charged for Forms I-192 and I-193 will
remain at $585, rather than the proposed fee of $930 when such forms
are submitted to and processed by the U.S. Customs and Border
Protection (CBP). See new 8 CFR 103.7(b)(1)(i)(P)-(Q).
B. Corrections
DHS inadvertently listed Application by Refugee for Waiver of
Grounds of Excludability, Form I-602, in the NPRM preamble and the
supporting documentation. DHS listed Form I-602 in the NPRM as part of
Waiver Forms in section IV, Fee Review Methodology, at 81 FR 26916 and
tables 8 and 9 at 81 FR 26926-26927. USCIS referenced it on pages 24,
47, 49, and 50 of the accompanying supporting documentation. The docket
of this final rule includes a corrected version of the supporting
documentation without references to Form I-602. Form I-602 has no fee
and DHS should not have included it in these lists or tables. The NPRM
did not assume any fee-paying workload for Form I-602; therefore,
removing it from the fee schedule does not affect other fees. DHS
continues to not charge a fee for Form I-602.
DHS also inadvertently did not include provisions for what would
occur if a benefit request was approved before USCIS became aware that
the fee payment was dishonored by the remitter institution. See
proposed 8 CFR 103.2(a)(7)(ii), 103.7(a)(2); 81 FR 26936-26937.
Specifically, DHS proposed to remove the requirement that USCIS provide
notification to the requester whenever an instrument used to pay the
filing fee is returned as not payable, with 14 days to cure the
deficiency. However, DHS neglected to propose the necessary conforming
change to 8 CFR 205.1(a)(2), which provides that the approval of a
petition or self-petition made under INA section 204 is automatically
revoked if the filing fee and associated service charge are not paid
within 14 days of the notification to the remitter that his or her
check or other financial instrument used to pay the filing fee has been
returned as not payable. The latter provision must be revised to
conform it to the proposed change described previously. That oversight
has been corrected in this final rule. New 8 CFR 103.7(a)(2)(iii),
205.1(a). This change is discussed in more detail in the response to
the public comments regarding dishonored payments.
C. Summary of Final Fees
The current USCIS fee schedule and the fees adopted in this final
rule are summarized in Table 1. DHS bases the final fees on the FY
2016/2017 estimated cost baseline as outlined in the NPRM. The table
excludes fees established and required by statute and those that DHS
cannot adjust.
Table 1--Non-Statutory IEFA Immigration Benefit Request Fees
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Form No.\5\ Title Current fee Final fee
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G-1041..................................... Genealogy Index Search Request..... $20 $65
G-1041A.................................... Genealogy Records Request (Copy 20 65
from Microfilm).
G-1041A.................................... Genealogy Records Request (Copy 35 65
from Textual Record).
I-90....................................... Application to Replace Permanent 365 455
Resident Card.
I-102...................................... Application for Replacement/Initial 330 445
Nonimmigrant Arrival-Departure
Document.
I-129/129CW................................ Petition for a Nonimmigrant Worker. 325 460
I-129F..................................... Petition for Alien Fianc[eacute](e) 340 535
I-130...................................... Petition for Alien Relative........ 420 535
I-131 \6\/I-131A \7\....................... Application for Travel Document.... 360 575
I-140...................................... Immigrant Petition for Alien Worker 580 700
I-191...................................... Application for Advance Permission 585 930
to Return to Unrelinquished
Domicile.
I-192...................................... Application for Advance Permission 585 \8\ 585/930
to Enter as Nonimmigrant.
I-193...................................... Application for Waiver of Passport 585 585
and/or Visa.
I-212...................................... Application for Permission to 585 930
Reapply for Admission into the
U.S. After Deportation or Removal.
I-290B..................................... Notice of Appeal or Motion......... 630 675
I-360...................................... Petition for Amerasian Widow(er) or 405 435
Special Immigrant.
I-485...................................... Application to Register Permanent 985 1,140
Residence or Adjust Status.
I-485...................................... Application to Register Permanent 635 750
Residence or Adjust Status
(certain applicants under the age
of 14 years).
I-526...................................... Immigrant Petition by Alien 1,500 3,675
Entrepreneur.
I-539...................................... Application to Extend/Change 290 370
Nonimmigrant Status.
I-600/600A................................. Petition to Classify Orphan as an 720 775
Immediate Relative/Application for
Advance Petition Processing of
Orphan Petition.
I-800/800A................................. Petition to Classify Convention 720 775
Adoptee as an Immediate Relative/
Application for Determination of
Suitability to Adopt a Child from
a Convention Country.
I-601...................................... Application for Waiver of Ground of 585 930
Excludability.
I-601A..................................... Application for Provisional 585 630
Unlawful Presence Waiver.
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I-612...................................... Application for Waiver of the 585 930
Foreign Residence Requirement
(Under Section 212(e) of the INA,
as Amended).
I-687...................................... Application for Status as a 1,130 1,130
Temporary Resident under Section
245A of the Immigration and
Nationality Act.
I-690...................................... Application for Waiver of Grounds 200 715
of Inadmissibility.
I-694...................................... Notice of Appeal of Decision....... 755 890
I-698...................................... Application to Adjust Status From 1,020 1,670
Temporary to Permanent Resident
(Under Section 245A of the INA).
I-751...................................... Petition to Remove Conditions on 505 595
Residence.
I-765...................................... Application for Employment 380 410
Authorization.
I-800A Supp. 3............................. Request for Action on Approved Form 360 385
I-800A.
I-817...................................... Application for Family Unity 435 600
Benefits.
I-824...................................... Application for Action on an 405 465
Approved Application or Petition.
I-829...................................... Petition by Entrepreneur to Remove 3,750 3,750
Conditions.
I-910...................................... Application for Civil Surgeon 615 785
Designation.
I-924 \9\.................................. Application for Regional Center 6,230 17,795
Designation Under the Immigrant
Investor Program.
I-924A..................................... Annual Certification of Regional 0 3,035
Center.
I-929...................................... Petition for Qualifying Family 215 230
Member of a U-1 Nonimmigrant.
N-300...................................... Application to File Declaration of 250 270
Intention.
N-336...................................... Request for Hearing on a Decision 650 700
in Naturalization Proceedings.
N-400...................................... Application for Naturalization..... 595 640
N-470...................................... Application to Preserve Residence 330 355
for Naturalization Purposes.
N-565...................................... Application for Replacement 345 555
Naturalization/Citizenship
Document.
N-600/N-600K............................... Application for Certification of \10\ 600/550 1,170
Citizenship/Application for
Citizenship and Issuance of
Certificate under Section 322.
USCIS Immigrant Fee \11\........... 165 220
Biometric Services Fee............. 85 85
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\5\ 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 final rule in both the
specific and general sense.
\6\ As described in the NPRM, 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) guide the Application for Travel
Document fees for a Refugee Travel Document. The USCIS ABC model
does not calculate these fees. See 8 CFR 103.7(b)(1)(i)(M)(2) and
(3).
\7\ On August 31, OMB approved Form I-131A, Application for
Travel Document (Carrier Documentation). The new form will be used
by Lawful Permanent Residents (LPRs) who are temporarily overseas
and have lost their Permanent Resident Card or Reentry Permit, to
apply for a Travel Document. See https://www.uscis.gov/i-131a.
\8\ The fee for Form I-192 will remain $585 when filed with and
processed by CBP.
\9\ DHS removed the word ``Pilot'' from the form title. See new
8 CFR 103.7(b)(1)(i)(WW).
\10\ The current fee for applications filed on behalf of a
biological child is $600. The fee for an adopted child is $550.
There is no fee for any application filed by a member or veteran of
any branch of the U.S. Armed Forces.
\11\ DHS changed the fee name to ``USCIS Immigrant Fee.'' See
new 8 CFR 103.7(b)(1)(i)(D).
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IV. Public Comments on the Proposed Rule
DHS provided a 60-day comment period following publication of the
NPRM; 436 comments were posted to regulations.gov. Although 475
comments were received on the docket, 38 were not posted and one was
withdrawn. As noted in the proposed rule, DHS may withhold information
provided in comments from public viewing if it determines that such
information is offensive or may affect the privacy of an individual. 81
FR 26905.
A. General Comments
DHS received comments from a broad spectrum of individuals and
organizations, including refugee and immigrant service and advocacy
organizations, public policy groups, members of Congress, and private
citizens. Some commenters wrote that they supported the fee changes
while others were critical of them. Many commenters wrote that they
were generally unsupportive of the weighted average increase; others
commented on specific form types. Some commenters wrote about
alternative methods to reduce costs and inefficiencies.
DHS also received several comments on subjects that are not related
to the proposed fees and are outside the scope of the NPRM. With
limited exception as explicitly stated below, DHS has not separately
summarized or responded to these comments.
B. Relative Amount of Fees
Most commenters stated opposition to the fee increases. Some
commenters suggested that fee increases would reduce the number of
people seeking immigration benefits. Some commenters stated that the
proposed fees did not reflect the actual adjudicative workload of
particular benefit types. Several commenters stated that proposed fees
were too low, but the clear majority stated that the fees were too
high.
Although DHS summarizes and responds to these concerns in more
detail below, it emphasizes that, as an initial matter and as
articulated in the NPRM, DHS needs to increase USCIS fees by a weighted
average increase of 21 percent to offset growing costs and continue to
provide an adequate level of service, as provided by section 286(m) of
the INA, 8 U.S.C. 1356(m), which authorizes USCIS to ``ensure recovery
of the full costs of providing all such services, including the costs
of similar services provided without charge.'' As reflected in this
provision, some USCIS fees must exceed the cost of adjudicating the
respective benefit types to cover those benefits provided without
charge, such as refugee benefits, asylum benefits, and other fee-
exempt, fee-waived or fee-reduced workloads. Furthermore, as explained
in the NPRM,
[[Page 73296]]
``DHS may reasonably adjust fees based on value judgements and public
policy reasons where a rational basis for the methodology is propounded
in the rulemaking.'' See 81 FR 26907.
An example is the policy decision to include a fee exemption for
individuals who are victims of a severe form of human trafficking and
who assist law enforcement in the investigation or prosecution of those
acts of trafficking (who may qualify for T visas), and individuals who
are victims of certain crimes and are being helpful to the
investigation or prosecution of those crimes (who may qualify for U
visas). The cost of processing those fee-exempt visas must be recovered
through fees charged for other benefit requests. See INA secs.
101(a)(15)(T), (U), 214(o), (p), 8 U.S.C. 1101(a)(15)(T), (U), and
1184(o), (p); 8 CFR 214.11, 214.14, 103.7(c)(5)(iii); Adjustment of
Status to Lawful Permanent Resident for Aliens in T or U Nonimmigrant
Status, 73 FR 75540 (Dec. 12, 2008). Such a decision would inevitably
cause an unsustainable reduction in fee revenue unless DHS spread the
cost of the fee exemption among other fee-paying applicants and
petitioners. Accordingly, consistent with section 286(m) of the INA, 8
U.S.C. 1356(m), DHS sets fees for other fee-paying applicants and
petitioners at a level sufficient to recover the full costs of
providing all such services.
Similarly, a decision to allow fee waivers for a particular benefit
request, or a decision to allow a reduced fee, will also have an impact
on other fee-paying applicants and petitioners. For instance, when
USCIS determines to hold a fee to a smaller percentage increase than
the overall methodology suggests (in this rule, DHS uses an 8 percent
weighted average increase for those benefits that it determines should
be held to a smaller fee increase \12\), there are cascading effects on
other fee-paying applicants and petitioners. These fee-reduced
immigration benefit requests may not recover the full cost of their
associated workloads or the full cost of their respective fee waivers.
The portion of costs that is not recovered is reallocated to other
immigration benefit requests.
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\12\ In this rule, USCIS applies this increase to a number of
benefit types, including the Application for Naturalization, Form N-
400; Application for Employment Authorization, Form I-765; and
adoption-related applications, Forms I-600/600A/800/800A. This
smaller increase, which in this rulemaking amounts to 8 percent, is
the percentage difference between the current fees and the model
output before reallocation, weighted by fee-paying volume. See 81 FR
26915.
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Correspondingly, when DHS sets a fee for a given benefit request at
the level suggested by the USCIS fee-setting methodology, without
further adjustment, the associated immigration benefit request absorbs
a portion of the additional costs associated with the immigration
benefit requests that are held down to the 8 percent weighted average
increase. These fees recover the full cost of their respective fee
waivers, plus some of the fee waiver costs for immigration benefit
requests that are held down to the 8 percent weighted average
increase.\13\ These fees also recover a greater portion of the cost of
fee-exempt services.
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\13\ See Appendix Table 4, Cost Reallocation column in the
supporting documentation. These figures represent all additional
costs, including the cost of forms that are held to the 8 percent
weighted average increase based on policy decisions, that USCIS
applies to fees to ensure full cost recovery.
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1. Proposed Fees Are Too High
The largest number of commenters wrote in opposition to the overall
increase in fees. Several commenters expressed concern over specific
populations (such as families or potential adoptive families) that may
be particularly affected by the fee increases. Some commenters believed
that a steep increase in fees would result in increased illegal
immigration, particularly for individuals who may not be able to afford
increased costs associated with existing legal avenues. Some commenters
suggested that the increase in fees could discourage certain
individuals from attempting to work or ultimately seeking lawful
permanent residence resident (LPR) status in the country.
As an initial matter, DHS notes that as stated in the NPRM, it
attributes 17 percent of the 21 percent weighted average fee increase
to the reinstatement of the surcharge needed to sustain current
operating levels of RAIO, the SAVE program, and the Office of
Citizenship, as well as to account for a projected loss in fee revenue
resulting from a significant increase in the number of fee waivers
currently received (and which is expected to continue throughout FY
2016/2017). See 81 FR 26911. The remaining 4 percent is needed to
recover the cost of sustaining current operating levels and to allow
for limited, strategic investments necessary to ensure the agency's
information technology infrastructure is strengthened. Such
strengthening is needed to protect against potential cyber intrusions
and to build the disaster recovery and back-up capabilities required to
effectively deliver on the USCIS mission. See 81 FR 26910. For
comparison, the inflation from July 2010 to July 2016 was 9.5
percent.\14\
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\14\ The semiannual average consumer price index for all urban
consumers (CPI-U) was 217.5 in July 2010 and 238.8 in July 2016. The
change in the Index over 9 years was 21.3 or 9.5 percent. See U.S.
Department of Labor, Bureau of Labor Statistics, All Urban Consumers
(CPI-U) Semiannual Average tables, available at http://www.bls.gov/cpi/cpi_dr.htm. DHS has not recently adjusted IEFA fees by CPI-U
inflation, but provides this figure as a point of comparison.
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DHS notes that fees do not merely cover the cost of adjudication
time. The fees also cover the resources required for intake of
immigration benefit requests, customer support, fraud detection,
background checks, and administrative requirements.\15\ DHS also
reiterates that any further fee adjustments would be zero-sum. Given
the need to recover the full cost of the services provided, a decision
reducing the fee burden on one population of beneficiaries will
ultimately increase the burden on others.
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\15\ See Appendix Table 5: Activity Unit Costs by Immigration
Benefit Request After Cost Reallocation of the supporting
documentation. Pages 19-20 define the activities in the appendix
table.
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a. Barrier to Family Reunification
A number of commenters stated that an increase in fees could
potentially prevent family reunification for certain U.S. citizens and
lawful permanent residents (LPRs), especially for individuals seeking
to reunite with several family members. USCIS understands the
importance of facilitating family reunification, as well as the
advantages that LPR status and citizenship provide. DHS acknowledges
that certain individuals may need to file multiple requests, and thus
pay multiple fees, depending on the number of family members they seek
to sponsor. Nonetheless, USCIS filing fees are necessary to provide the
resources required to do the work associated with such filings. When
fees do not fully recover costs, USCIS is unable to maintain sufficient
capacity to process requests. Inadequate fees may cause significant
delays in immigration request processing, which can result in the
burden of longer separation from family members.
DHS recognizes that fees impose a burden on fee-paying applicants
and beneficiaries, and it takes steps to mitigate that burden as
appropriate. Specifically, after USCIS applies its standard fee-setting
methodology to identify the Activity-Based Cost (ABC) \16\ model output
for each benefit
[[Page 73297]]
request, USCIS evaluates the model output and determines whether it
should be adjusted. DHS is mindful that departures from the standard
USCIS fee-setting methodology result in lower fees for some and higher
fees for others. DHS discusses these adjustments in more detail in the
remainder of this preamble, including by reference to certain family-
based benefit requests, such as the Petition for Alien Relative, Form
I-130.
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\16\ USCIS uses the ABC model to determine the full cost of
processing immigration benefit requests and biometric services. This
is the same methodology used in the last four fee reviews and the
basis for the current fee structure. The ABC model is a business
management tool that assigns resource costs to operational
activities and then to products and/or services. These assignments
provide an accurate cost assessment of each major step towards
producing the individual outputs of an organization. For additional
information on the ABC model, see pages 17-22 of the supporting
documentation.
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b. Impact on Low-Income Individuals; Low Volume Reallocation
Several commenters stated that the proposed rule would harm the
ability of low-income applicants and petitioners to afford USCIS
services. Some of these commenters suggested that the proposed overall
fee increase would result in a reduction in overall filings from low-
income applicants and petitioners. Commenters discussed the importance
of maintaining an immigration system that is accessible to people at
all income levels.
DHS is aware of the potential impact of fee increases on low-income
individuals and is sympathetic to these concerns. As a result, DHS not
only offers fee waivers, but also uses its fee-setting discretion to
adjust certain immigration benefit request fees that USCIS believes may
be overly burdensome on applicants, petitioners, and requestors if set
at the recommended model output levels. As discussed in the proposed
rule and supporting documentation, and consistent with past practice,
USCIS proposed to limit fee adjustments for certain benefit requests to
a set percentage increase above current fees. USCIS determined this
figure by calculating the average percentage fee increase across all
model outputs before cost reallocation. In this rule, that calculated
figure is 8 percent. This methodology is referred to as Low Volume
Reallocation.
The use of Low Volume Reallocation frequently results in lower fees
for certain low-income applicants and petitioners, but always results
in higher fees for other benefit requests. This is because USCIS relies
almost completely on fee revenue to support its operations. DHS is
therefore mindful to use low volume reallocation only where compelling
circumstances counsel in favor of shifting costs from one benefit
request to others.
Nonetheless, as proposed, in this final rule, DHS will continue
applying Low Volume Reallocation from the 2010 final rule to the
following 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, and Application for Advance Processing of an Orphan Petition,
Form I-600A
Petition to Classify Convention Adoptee as an Immediate
Relative, Form I-800, and Application for Determination of Suitability
to Adopt a Child from a Convention Country, Form I-800A
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
Also as proposed, DHS will apply the same calculated 8 percent
weighted average increase to the following benefit types:
Application for Provisional Unlawful Presence Waiver, Form
I-601A
Application for Employment Authorization, Form I-765
Request for Action on Approved Form I-800A, Form I-800A
Supplement 3
DHS believes that the use of Low Volume Reallocation will mitigate
the potential burden of this final rule on certain low-income
applicants and petitioners.\17\ DHS intends to continue assessing the
affordability of its fees in future fee reviews. This may result in
continuing Low Volume Reallocation, otherwise reallocating certain
costs, and identifying cost savings. For purposes of this final rule,
however, DHS has not materially changed the proposed rule to address
the commenters' stated concerns with the proposed overall fee increase.
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\17\ DHS has not estimated the overall effect that this final
rule will have on filing volume from low-income applicants. USCIS
may consider exploring options to collect and analyze this data in
the future.
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2. Comments on Specific Fees and Adjustments
While many commenters indicated that they were opposed to the
overall increase in fees, some comments focused on increases to
particular forms or to specific groups of applicants, petitioners, or
requestors. Those comments are addressed below.\18\
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\18\ DHS addresses the comments on specific immigration benefit
requests in approximate order of the number of commenters who
submitted comments on that subject.
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a. Application for Certificate of Citizenship, Forms N-600/600K
In the NPRM, DHS proposed fee increases for the Application for
Certificate of Citizenship, Form N-600, and the Application for
Citizenship and Issuance of Certificate Under Section 322, Form N-600K.
Under the proposed rule, the current $600 fee for applications filed on
behalf of biological children would be increased by $570, or 95
percent, to $1,170. The proposed rule also would eliminate the current
$50 discount on applications filed on behalf of adopted children,
previously codified at 8 CFR 103.7(b)(1)(i)(AAA), thereby effectively
increasing fees for such applications by $620, or 103 percent. Id.
A number of commenters stated that DHS should reconsider the
proposed fee increases. Some commenters requested additional
information to explain the increases. Certain commenters who submitted
comments through a form letter campaign stated that the proposed
increases were troubling considering that USCIS had not reported a
significant increase in application volume or processing times.
Some commenters stated that the proposed fee increase would result
in a significant additional burden for potential adoptive families, who
already invest a great deal of time and money in the adoption process.
Some stated that Forms N-600 and N-600K should be free or discounted
for adopted children, or alternatively maintained at the current fee. A
commenter stated that the Department of State (DOS) processes
derivative citizens' requests for passports in substantially the same
manner that USCIS processes Forms N-600 and N-600K, yet DOS only
charges $120 for a passport book for a child younger than 16 years of
age. Other commenters stated that many adopted children automatically
derive U.S. citizenship from their parents when they enter the United
States, while other children derive U.S. citizenship when their
adoptions are completed.\19\ Several commenters noted that a passport
may be an effective alternative to the certificate for naturalization.
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\19\ See U.S. Citizenship and Immigration Services, Before Your
Child Immigrates to the United States (11/18/2014), available at
https://www.uscis.gov/adoption/your-child-immigrates-united-states.
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[[Page 73298]]
As noted previously, USCIS based the proposed fee increase for the
Forms N-600 and N-600K on the results of its comprehensive biennial fee
review, a summary of which was available for comment in the docket
accompanying the proposed rule. The biennial fee review helps ensure
that fees for USCIS services cover the full cost of processing
immigration benefits. In the absence of full cost recovery, USCIS would
be unable to sustain an adequate level of service, let alone invest in
program improvements.
DHS recognizes that fees impose a burden on fee-paying applicants
and beneficiaries, and takes steps to mitigate that burden as
appropriate. Specifically, after DHS applies the standard USCIS
methodology to identify the model output for each benefit request, DHS
evaluates the model output and determines whether it should be
adjusted. In the NPRM, DHS proposed to limit a small number of fees to
an 8 percent weighted average increase for one or more of the following
three reasons: (1) DHS determined that the combined effect of cost,
fee-paying volume, and methodology changes since the previous fee rule
would otherwise place an inordinate fee burden on individuals
requesting these types of benefits; (2) DHS determined that an
adjustment was necessary to promote citizenship and immigrant
integration or other policies; or (3) DHS lacked data on which to base
an appropriate fee. See 81 FR 26915. For example, DHS proposed to limit
to the 8 percent weighted average increase to the Application for
Naturalization and the adoption petition and application fees
(explained in the sections of this preamble that discuss those
requests).
DHS is mindful that departures from the standard USCIS fee
methodology result in lower fees for some and higher fees for others.
DHS is careful to use its fee setting discretion in a way that does not
result in unnecessary or unjustifiable burdens for fee-paying
applicants and petitioners. Accordingly, the proposed rule (like past
fee rules) would have set most fees above cost, in adherence to the
fee-setting methodology. The fee for Forms N-600 and N-600K is one of
those fees.
Setting aside the effect of cost reallocation,\20\ DHS attributes
the proposed increase to the fee for Forms N-600 and N-600K to a
significant increase in the number of fee waivers granted for such
forms.\21\ In the 2010 final rule, DHS assumed that every applicant
would pay the fee for Forms N-600 and N-600K. However, the fee-paying
volume estimate for Forms N-600 and N-600K decreased from 100 percent
in FY 2010/2011 to 67 percent in FY 2016/2017 due to applicants
receiving fee waivers. The standard fee-setting methodology provides
that the costs of waived or exempted fees are to be recovered from fee-
paying applicants submitting the same form(s) (in this case, applicants
filing Forms N-600 and N-600K).\22\ See 81 FR 26922. The previous fee
for Form N-600 was set under the assumption that 100 percent of filers
would pay the fee; as the NPRM explained, however, a third of Form N-
600 filers are receiving fee waivers. These waivers account for a large
portion of the costs that must now be addressed through the proposed
fee increase. In short, the Form N-600 fee in the proposed rule is the
result of consistent application of USCIS's fee-setting methodology. No
adjustment was made to the fee calculated under the methodology based
on other policy considerations.
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\20\ At least one commenter indicated that the RAIO surcharge
seemed to be a large contributor to the increase in the proposed fee
for the Form N-600. The commenter suggested that the RAIO surcharge
should be redistributed to all other forms to reduce the financial
burden of the proposed fee increase on adoptive parents. As outlined
in the NPRM, Forms N-600 and 600K are not the only forms that
recover the cost of RAIO, the SAVE program, and the Office of
Citizenship. USCIS currently distributes these costs to all form
types not set below projected cost. See 81 FR 26915.
\21\ See Appendix Table 4 of the supporting documentation.
\22\ When DHS holds a fee below cost, the costs that are not
covered, including fee waivers, must be paid by other fee paying
applicants. Specifically, other immigration benefits whose fees are
not held down recover the additional cost.
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DHS is setting the fees for several other forms at a level that is
less than their projected cost. If DHS similarly limited the fee for an
Application for a Certificate of Citizenship, however, it would need to
raise other fees to recover these expenses. USCIS estimates that each
such instance would increase other fees between $5 and $210, with an
average increase of $21.
With respect to comments about the potential impact of the proposed
fee increase on adoptive families in particular, DHS notes that Forms
N-600 and N-600K are not primarily used by adoptive families. USCIS
estimates that adopted children represent less than 10 percent of the
workload related to Applications for Certificate of Citizenship.\23\
Although DHS could have established a separate fee for adopted
children, the cost of such a departure from the standard fee-setting
methodology would be borne by other fee-paying applicants and
petitioners.\24\ Similarly, if DHS set the fee for this benefit request
at an equivalent level to the DOS passport fee, DHS would be required
to substantially increase other fees to ensure full-cost recovery. DHS
agrees with commenters that in many cases, a passport will serve the
same purpose as a certificate of citizenship, and for a lower cost to
the applicant. Finally, DHS notes that adjudicating a Form N-600 for an
adopted child is similar in workload and difficulty to the adjudication
of an Application for Certificate of Citizenship for a biological
child. There would be no cost-related basis for establishing a separate
fee for adopted children.
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\23\ Based on FY 2015 actual revenue data, less than 10 percent
of fee-paying applicants for Forms N-600 or N-600K paid the lower
fee for adopted children.
\24\ DHS will continue its policy of reducing fee burdens on
adoptive families in other ways. For instance, DHS will continue to
allow fee waivers for the Form N-600. DHS will also continue to
cover costs attributable to the adjudication of adoption petitions
and applications (Forms I-600/600A/800/800A) through the fees
collected from other requests. This policy is described in the
following section on ``Adoption.'' Note that in the NPRM, the row
for Forms I-600/600A/800/800A was labeled as ``orphan petitions.''
The term ``orphan'' only applies to Forms I-600 and Form I-600A. The
row includes data for all of the adoption forms. Therefore, DHS
changed the label for Forms I-600/600A/800/800A from ``orphan
petitions'' to ``adoption petitions and applications'' in the final
rule and in several tables within the supporting documentation. The
changes only affect the labels for the rows and do not represent a
change in the data or calculations.
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For the reasons stated above, DHS has not revised the proposed fee
in this final rule. Under this final rule, the fee for the Application
for Certificate of Citizenship, Form N-600, and the Application for
Citizenship and Issuance of Certificate Under Section 322, Form N-600K,
will be $1,170.
b. Adoption, Forms I-600/600A/800/800A
In the NPRM, DHS proposed to increase the fee for the (1) Petition
to Classify Orphan as an Immediate Relative, Form I-600; (2)
Application for Advance Processing of an Orphan Petition, Form I-600A;
(3) Petition to Classify Convention Adoptee as an Immediate Relative,
Form I-800; and (4) Application for Determination of Suitability to
Adopt a Child from a Convention Country, Form I-800A. The proposed
increase would change the fee for each of these forms from $720 to
$775. See proposed 8 CFR 103.7(b)(1)(i)(Y), (Z), (JJ)(2), (KK); 81 FR
26939. DHS proposed to hold the increase for these benefit types (among
others) to an 8 percent 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
[[Page 73299]]
requesting these types of benefits. For example, if DHS did not
maintain the proposed fee for the Form I-600, this benefit request
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.
Some commenters wrote in opposition to the proposed fee increases
associated with intercountry adoptions or stated that DHS should
reconsider these fee increases. Commenters wrote that all adoption-
related fees should remain at the current level, be lowered, or be
waived when adopting children from foster care. Some commenters stated
that these fee increases would lead to decreased intercountry
adoptions. At least one commenter wrote that adoptive parents were
specifically targeted by the proposed fee increases in the NPRM.
DHS greatly values its role in intercountry adoptions and places
high priority on the accurate and timely processing of immigration
applications and petitions that enable U.S. families to provide
permanent homes for adopted children from around the world. It also
recognizes that the financial costs, both foreign and domestic,
involved in intercountry adoptions can have significant impacts on
these families. DHS has a history of modifying policies to ease burdens
associated with international adoption. Prior to 2007, USCIS required
prospective adoptive parents who had not found a suitable child for
adoption within 18 months after approval of their Application for
Advance Processing of Orphan Petition, Form I-600, to submit a fee with
their request to extend their approval. Since 2007, USCIS has permitted
adoptive parents to request one extension of their Form I-600 approval
without charge, including the biometric fee. See 72 FR 29864; 8 CFR
103.7(b)(1)(i)(Z). Finally, DHS does not charge an additional filing
fee for an adoption petition filed on behalf of the first beneficiary
child or birth siblings. See 8 CFR 103.7(b)(1)(i)(Z) and
103.7(b)(1)(i)(JJ)(1).
DHS also has a history of setting adoption-related fees lower than
the amount suggested by the fee-setting methodology. In the 2010 fee
rule, the calculated fee for adoption petitions and applications (Forms
I-600/I-600A and I-800/I-800A) was $1,455, based on projected costs.
See 75 FR 33461; previous 8 CFR 103.7(b)(1)(i)(Y), (Z), (II), (JJ).
Instead of using the model output, DHS increased the fee by only $50,
to $720. See 75 FR 58972. As noted previously, in the FY 2016/2017 fee
review, the model output for the Form I-600 was $2,258.\25\
Nonetheless, DHS proposed setting fees for adoption petitions at $775.
See proposed 8 CFR 103.7(b)(1)(i)(Y), (Z), (JJ), (2), (KK). The $1,483
difference between the model output and the final fee will be recovered
from other applications, petitions, and requests. Shifting the adoption
petition and application costs to other fees is consistent with past
DHS efforts and is in the public interest to support parents of
children adopted abroad.
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\25\ Model output is reflected and further explained in Appendix
Table 4: Proposed Fees by Immigration Benefit Request in the
supporting documentation.
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DHS recognizes that fees impose a burden on individuals seeking
immigration benefits, and it takes steps to mitigate that burden as
appropriate. At the same time, DHS must recover the full costs of the
services that USCIS provides, or else risk reductions in service
quality, including potential delays in processing. In this case, DHS
proposed to apply the reduced (8 percent) fee increase to these benefit
requests, for the reasons stated previously and consistent with DHS's
practice of holding a number of benefit requests to this reduced fee
increase. DHS was mindful that although this departure from the
standard fee-setting methodology results in lower fees for adoptive
families, it also results in higher fees for others. 81 FR 26915. Any
further departure would only heighten the effect on the rest of the fee
schedule, and would not be consistent with DHS's overall fee-setting
methodology. DHS is therefore finalizing the fee as proposed.
c. Petition for a Nonimmigrant Worker, Form I-129
In the NPRM, DHS proposed to increase the fee for the Petition for
a Nonimmigrant Worker, Form I-129, from $325 to $460. See proposed 8
CFR 103.7(b)(1)(i)(I); 81 FR 26937. The proposed fee increase was the
result of the application of the standard USCIS fee-setting methodology
to this benefit request.
Several commenters objected to the proposed fee increase. Most of
the comments on this subject were from agricultural groups or farmers
who expressed that the new fee would be too expensive for employers
that employ H-2A temporary agricultural workers for seasonal labor.
Other commenters objected to the impact that the proposed fee increase
would have on performers in the arts. Commenters representing religious
organizations also opposed the increase, stating that it would pose a
burden to religious workers in small communities.
Others submitted comments about processing delays. Some commenters
noted that delays in processing Forms I-129 affect the incomes of
farmers and performers. Some commenters stated that DHS's proposal to
increase the Form I-129 fee was undermined by USCIS' failure to process
O and P visa requests within the 14 days allotted by statute for
certain petitions. See INA sec. 214(c)(6)(D), 8 U.S.C.1184(c)(6)(D).
Commenters stated that any fee increase should be accompanied by
improvements in petition processing and policies, particularly as
related to H-1B, L-1, O and P visas.\26\
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\26\ For additional information, see the section entitled,
Improve Service and Reduce Inefficiencies.
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As noted previously, DHS is authorized to set fees at a level that
ensures recovery of the full costs of providing immigration
adjudication and naturalization services. Because USCIS relies almost
entirely on fee revenue, in the absence of a fee schedule that ensures
full cost recovery, USCIS would be unable to sustain an adequate level
of service, let alone invest in program improvements. Full cost
recovery means not only that fee-paying applicants and petitioners must
pay their proportionate share of costs, but also that at least some
fee-paying applicants and petitioners must pay a share of the
immigration adjudication and naturalization services that DHS provides
for vulnerable populations on a fee-exempt, fee-reduced, or fee-waived
basis. DHS is therefore mindful to adhere to the standard USCIS fee-
setting methodology as often as possible, and to avoid overuse of DHS's
discretion to eliminate or reduce fees for special groups of
beneficiaries.
The proposed fee for the Form I-129 resulted from application of
the standard USCIS fee-setting methodology, because DHS did not find a
compelling reason to shift the burden of the Form I-129 fee increase
onto other applicants. Following consideration of the public comments,
DHS retains the fee level expressed in the proposed rule. It is
possible that in a limited number of cases a reduced fee would be more
appropriate, but in the interest of fairness to all applicants and
petitioners, as well as in the interest of the administration, this
final rule sets a single fee for the Form I-129 at $460, as
proposed.\27\
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\27\ The Regulatory Flexibility Act discussion in the Statutory
and Regulatory Requirements section addresses comments regarding the
effect of the rule on small entities. As for processing delays, DHS
has further addressed the operational and efficiency comments in the
section of this preamble entitled, ``Improve Service and Reduce
Inefficiencies.''
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[[Page 73300]]
d. Application To Register Permanent Residence or Adjust Status, Form
I-485, and Interim Benefits
In the NPRM, DHS proposed to continue offering travel document and
employment authorization renewals free of charge during the pendency of
an Application to Register Permanent Residence or Adjust Status, Form
I-485, so long as the applicant filed the application with the
appropriate fee on or after July 30, 2007. See 8 CFR 103.7(b)(1)(i)(M)
(HH); proposed 8 CFR 103.7(b)(1)(i)(M), (II); 81 FR 26937. The
associated forms are the Application for Travel Document, Form I-131,
and Application for Employment Authorization, Form I-765. USCIS refers
to travel document and employment authorization renewals as ``interim
benefits'' when they are associated with a pending Form I-485. See 81
FR 26918.
DHS received several comments from individuals who applied to
adjust status before July 30, 2007, and who thus do not qualify for
free interim benefits. These commenters stated that their Form I-485
applications have been pending since before July 30, 2007, and that
because of the annual numerical visa limits established by Congress,
they would likely need to request additional travel document and
employment authorization renewals in the future.\28\ Some commenters
stated that it is unfair to charge applicants for interim benefits
while they are waiting for visas to become available. Another commenter
noted that USCIS has recently started requiring refugees and asylees to
pay the required fee associated with the Application for Employment
Authorization when concurrently filed with Form I-485. The commenter
stated that USCIS had not previously required payment of a fee for such
an application.
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\28\ The U.S. Department of State (DOS) manages the allocation
of visa numbers and Congress establishes the annual visa numerical
limits.
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USCIS acknowledges that under current regulations and as proposed,
employment-based Form I-485 applicants who filed before July 30, 2007,
must continue to pay fees associated with interim benefits. Before the
USCIS 2007 fee rule, DHS did not provide free interim benefits, and the
Form I-485 fee was calculated without considering the potential costs
of providing such benefits. See 75 FR 58968, 58982.\29\ The 2007 final
rule increased the Form I-485 fee from $325 to $905, or 178 percent,
mostly due to the decision to permit interim benefits without
additional fees. 72 FR 29861. Because applicants for adjustment of
status who filed before July 30, 2007, paid the lesser amount of $325
when they filed their Form I-485, and because a decision to provide
free interim benefits to this population would shift additional costs
to other fee-paying applicants and petitioners, DHS has decided to not
provide free interim benefits for those pending applicants.
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\29\ As explained in the 2007 proposed rule, the decision to
provide free interim benefits is intended to restructure certain fee
arrangements that some perceived as providing disincentives for
USCIS to improve efficiency in processing. See 72 FR 4894. By
bundling the Form I-485 and interim benefit costs, USCIS ensured
that an applicant for adjustment of status will pay a single fee and
will not pay separate fees for interim benefits, no matter how long
the case remains pending. As a result, if USCIS is unable to process
the base application within the established processing goals, an
applicant who needs to travel or extend his or her employment
authorization is not financially disadvantaged by the delay.
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USCIS has taken other actions to alleviate the filing burden and
fees on those individuals whose applications are still pending due to
the lack of available visas. For example, DHS now provides Employment
Authorization Documents (EADs) with 2-year validity periods, instead of
previously issued 1-year periods, which effectively reduces the fee per
year.\30\ In addition, USCIS adopted a policy in December 2010 under
which an applicant with a pending Form I-485 that was filed before
August 18, 2007, may receive a combination advance parole document and
EAD with a 2-year validity period. See Policy Memorandum, Issuance of
Advance Parole Employment Authorization Document (Dec. 21, 2010).\31\
These longer approval periods have alleviated some of the burden
described by the commenters.
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\30\ USCIS may, in its discretion, determine the validity period
assigned to any document issued evidencing an individual's
authorization to work in the United States. 8 CFR 274a.12(b).
\31\ See https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2011/April/issuance-advance-parole.pdf.
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With regard to the comment that USCIS is requiring refugees and
asylees to pay for Form I-765 when filing it concurrently with Form I-
485, current regulations provide that Form I-765 has no fee if filed in
conjunction with a pending or concurrently filed Form I-485 that was
filed with a fee on or after July 30, 2007. See 8 CFR
103.7(b)(1)(i)(M)(4). There is no fee for a refugee who is filing Form
I-485. See 8 CFR 103.7(b)(1)(i)(U)(3). Therefore, although USCIS has
waived the Form I-765 fee for the first such application filed by a
refugee, a Form I-765 filed by a refugee to renew his or her EAD
requires a fee.\32\ To renew interim benefits, a refugee who is filing
a Form I-765 with Form I-485 must pay the Form I-765 fee or submit a
Request for Fee Waiver, Form I-912. Similarly, if the refugee's
employment authorization document expires before the Form I-485 is
approved, he or she must file Form I-765 with a fee or request another
fee waiver. Contrary to the commenter's statement, there has been no
change in practice on this point.
---------------------------------------------------------------------------
\32\ See Instructions for I-765, Application for Employment
Authorization, available at https://www.uscis.gov/sites/default/files/files/form/i-765instr.pdf.
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Like almost all other applicants for adjustment of status, asylees
are generally required to pay a fee for Form I-485; if they pay this
fee, they receive free interim benefits as long as their Form I-485 is
pending with USCIS. Asylees may request that both their Form I-485 and
Form I-765 fees be waived. See 8 CFR 103.7(c)(3)(viii) &
(c)(4)(iii).\33\ However, if USCIS waives the fee for the initial Form
I-485, subsequent Form I-765 filings (for instance, to renew or replace
a lost or expired EAD) require a fee or a new fee waiver request.\34\
Because fee waivers are available, because refugees and asylees are
usually not subject to lengthy waiting periods associated with visa
availability, and because of the importance of ensuring full-cost
recovery, DHS did not find a compelling reason to shift fee burdens
onto other fee-paying applicants and petitioners. Accordingly, DHS has
not revised this policy in this final rule.
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\33\ Both fee waivers may be requested on one Request for Fee
Waiver. See Instructions for Request for Fee Waiver at https://www.uscis.gov/sites/default/files/files/form/i-912instr.pdf.
\34\ An asylee in this situation, like all individuals seeking
to file a Form I-765, may still apply for a fee waiver. See 8 CFR
103.7(c)(3)(viii).
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Finally, DHS also proposed to increase the separate Form I-485 fee
that applies to a child under the age of 14 years who files a 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. DHS proposed a fee increase from
$635 to $750, but did not propose any substantive changes to
eligibility for the reduced fee. See 81 FR 26919.\35\ USCIS received at
least one comment requesting that the proposed $750 discounted fee
apply to all children under the age of 14 at any time, regardless of
whether their Form I-485
[[Page 73301]]
was filed concurrently with the application of a parent. The commenter
noted that such children, like the children who are currently eligible
for the reduced Form I-485 fee, cannot work in the United States.
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\35\ Under the proposed rule and in this final rule, the
standard fee for a Form I-485 would increase from $985 to $1,140.
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DHS proposed that the discounted Form I-485 fee would only be
available when the Form I-485 is filed 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. See
proposed 8 CFR 103.7(b)(1)(i)(U)(2); 81 FR 26938. DHS has considered
the commenter's suggestion, but is unable to adopt it. USCIS does not
track the completion rates (i.e., adjudication times) for Form I-485
based on the age of the applicant, so the agency does not have data
showing a difference in the completion rate correlated to the
difference in applicant age. In addition, USCIS does not know the
volume of individual Form I-485 filings by children on which to base a
separate fee. To set that fee as suggested by the commenter would
require deviation from the fee-setting methodology and, as stated
previously in this preamble, require the costs for those applications
to be shifted to other benefit requests. Therefore, DHS is not
expanding the child discount to all children in this final rule.
Nevertheless, while the current and proposed provisions limited the
reduced fee only to children who are derivative applicants filing the
Form I-485 at the same time as their parent, USCIS has in practice
extended the reduced fee provision to all immigrant relative children
under the age of 14 who file the Form I-485 at the same time as their
parent (i.e., mailed in the same envelope), regardless of whether they
are filing as a derivative or a principal applicant. Therefore, to make
the regulation text consistent with the form instructions and USCIS
practice, this final rule sets the fee for Form I-485 accordingly. See
new 8 CFR 103.7(b)(1)(i)(U)(2).
e. Application for Travel Document, Form I-131
In the NPRM, DHS proposed to increase the fee for the Application
for Travel Document, Form I-131, from $360 to $575. See proposed 8 CFR
103.7(b)(1)(i)(M); 81 FR 23937. The proposed fee increase was the
result of application of the standard fee-setting methodology to this
benefit request.
Some commenters objected to the proposed increase. Some commenters
noted that the forecasted fee-paying volume for Form I-131 has not
changed significantly from the 2010 fee rule.\36\ Additionally, they
pointed out that the Form I-131 has one of the shortest completion
rates,\37\ indicating that it is not a relatively complex
adjudication.\38\ Some of these commenters wrote that they have a
pending Form I-485 that was filed before July 30, 2007, and that they
are thus ineligible for free interim benefits, including being
permitted to file Form I-131 without a fee while waiting for an
immigrant visa to become available. See previous 8 CFR
103.2(b)(1)(i)(M)(4). Some commenters stated that they have paid the
Form I-131 fee several times while waiting for a visa to become
available and that applicants from countries with long visa wait times
must renew their travel documents every year, sometimes for multiple
family members.\39\
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\36\ See 75 FR 26923 for overall workload in table 4 and 75 FR
26924 for fee-paying workload in table 5.
\37\ USCIS completion rates are the average hours per
adjudication of an immigration benefit request. Adjudication hours
are divided by the number of completions for the same time period to
determine an average completion rate. For additional information on
completion rates, see Appendix IX--Completion Rates on page 57 of
the supporting documentation.
\38\ See Appendix Table 7: Completion Rates (Projected
Adjudication Hours/Completions) on page 58 of the supporting
documentation.
\39\ Some commenters stated DHS should use a validity period of
2 years instead of 1 year when extensions of Form I-131 are approved
for this population. As noted earlier in this preamble, however,
USCIS may grant an applicant who has a pending Form I-485 and
interim benefits, such as advance parole, an employment
authorization combination document with a 2-year validity period if
the immigrant visa is not currently available. Adjudicator's Field
Manual ch. 55.3, par. (a)(2). These longer approval periods have
alleviated some of the burden on applicants with long-pending I-485
applications.
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As noted previously, the proposed fee increase for the Form I-131
was the result of application of the standard USCIS fee-setting
methodology to this benefit request. When DHS departs from the standard
USCIS fee-setting methodology to reduce fees for one group, fees for
other groups (including, in this case, the fee for Form I-131) must be
increased to recover full cost.
With respect to the Form I-131 in particular, the proposed fee
increase was also due in part to USCIS improving its ability to fully
account for the costs of this benefit request. The FY 2016/2017 fee
review included more complete data on the Application for Travel
Document workload than was included in the 2010 final rule. As noted in
the supporting documentation, the latest fee review considered the
completion rates for work performed by International Operations,\40\
which adjudicates some Applications for Travel Documents, in the
overall completion rates for Applications for Travel Documents. This
information was not available for the FY 2010/2011 fee review, but it
was included in this review to more accurately represent the cost of
adjudicating an Application for Travel Document overseas. The proposed
fee increase was due in part to USCIS including costs and time from
International Operations in the model output for the Applications for
Travel Documents fee. Ultimately, the proposed fee for Form I-131
represents its proportion of USCIS operating costs, as dictated by the
standard USCIS fee-setting methodology. If DHS held the fee for Form I-
131 below the amount suggested by the FY 2016/2017 fee-setting
methodology, then the additional costs would be transferred to other
immigration benefit fees.
---------------------------------------------------------------------------
\40\ See International Operations Cost Allocation on page 26 of
the supporting documentation.
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Because DHS did not find a compelling reason to transfer a portion
of the Form I-131 fee increase to other applicants, DHS retains the fee
proposed in the NPRM. DHS recognizes that this decision will affect
different applicants differently; some applicants may file this
application just once, while others may file it multiple times. But in
the interest of fairness to all applicants and petitioners, as well as
in the interest of sound and efficient adjudications, DHS has decided
to not create additional levels of fees for the Form I-131. This final
rule sets a fee of $575 for the Form I-131, with appropriate exceptions
for refugee travel documents, as discussed below. Nevertheless, Form I-
131 requests for parole filed on behalf of individuals outside the
United States, including humanitarian parole, remain eligible for a fee
waiver. 8 CFR 103.7(c)(3)(iv).
Finally, at least one commenter questioned why DHS did not propose
a new fee for refugee travel documents. As noted in the NPRM, fees for
a refugee travel document are set at a level that is consistent with
U.S. obligations under Article 28 of the 1951 Convention relating to
the Status of Refugees, as incorporated by reference in the 1967
Convention relating to the Status of Refugees. See 81 FR 26917. The fee
must remain set at an amount that is consistent with U.S. obligations
under Article 28. Therefore, fees for refugee travel documents will
remain the same as DOS passport book fees.\41\
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\41\ The Refugee Travel Document fees are the same as the sum of
the U.S. passport book application fee plus the additional execution
fee that the Department of State charges for first-time applicants.
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[[Page 73302]]
f. Application for Employment Authorization, Form I-765, and Students
In the NPRM, DHS proposed to increase the fee for the Application
for Employment Authorization, Form I-765, from $380 to $410. See
proposed 8 CFR 103.7(b)(1)(i)(II); 81 FR 26938. DHS proposed to limit
the increase for these benefit types (among others) to 8 percent 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). 81 FR 26916.
At least one commenter objected to the potential effect of the
proposed Form I-765 fee increase on foreign students seeking work
authorization under the Optional Practical Training (OPT) program. The
OPT program allows an F-1 nonimmigrant student to file a Form I-765 to
request authorization to work in the United States in a position that
is directly related to the F-1 student's major area of study. See 8 CFR
214.2(f)(10)(ii)(C). OPT provides F-1 students with an opportunity to
apply knowledge gained in the classroom to practical work experience
off campus.
DHS places a high value on its role in attracting international
students and scholars to the United States. Among other things, the
contributions to U.S. educational institutions provided by a diverse
international student body are invaluable. In recognition of these
goals, USCIS devotes many resources to delivering immigration benefits
to deserving students, including expending substantial resources, which
DHS must recover, to adjudicate their eligibility for EADs. In
addition, DHS limited the proposed EAD fee increase in a manner
consistent with a number of other fees. See 81 FR 26916. Moreover, F-1
students may request fee waivers in cases in which they are unable to
afford the fee. In other cases, USCIS will continue to charge the full
fee based on the effort and resources expended to process this benefit.
This final rule therefore sets the fee at $410, as proposed. See new 8
CFR 103.7(b)(1)(i)(II).
g. Application for Replacement Naturalization/Citizenship Certificate,
Form N-565
In the NPRM, DHS proposed to increase the fee for the Application
for Replacement Naturalization/Citizenship Certificate, Form N-565,
from $345 to $555, or 61 percent. The proposed fee increase was the
result of application of the standard fee-setting methodology to this
benefit request.
Commenters mentioned that some people could lose proof of
citizenship or naturalization due to unforeseen circumstances, such as
natural disasters or theft, and that a steep increase might make it
more difficult for certain individuals to obtain replacement documents.
Other commenters noted that citizens may need a certificate of
naturalization or citizenship due to a name change. Commenters stated
that the more prohibitively expensive it becomes for foreign-born U.S.
citizens to replace documentation of their citizenship, the more
difficult it will be for them to work, vote, or pursue other
opportunities.
Commenters noted that the completion rate for Form N-565 increased
significantly since the 2010 final rule. Some commenters compared the
completion rate for Form N-565 to that of the Application to Replace
Permanent Resident Card, Form I-90, and stated that the two
adjudications should be similar. Those commenters noted that the
completion rate for Form I-90 decreased since the 2010 final rule,
while the Form N-565 completion rate increased by 64 percent. Some
commenters stated that USCIS should further assess why the completion
rate for Form N-565 increased to this degree.
DHS acknowledges that the Form N-565 adjudication time has
increased over the years, and attributes this increase to the amount of
research and review necessary to adjudicate these filings. Form N-565
adjudications require USCIS to fully review A-Files for security check
purposes, including discovering name variations or aliases. To verify
the naturalization of an applicant, USCIS officers must research all
available systems. Yet many filings involve individuals who were
naturalized decades ago and whose information is not contained in
electronic systems, thus requiring extensive paper-based review. USCIS
officers may also have to communicate with the National Archives and
Records Administration or the Federal courts to obtain evidence
supporting naturalization. In some cases, paper files must be
transferred to a field office to conduct an interview of the applicant.
Changes in name, marital status, gender, or other facts require
evidentiary review to support requested changes in USCIS records. No
filing fee is required in cases where the Form N-565 is filed to
request correction of a certificate that contains an error, but even
such filings require that USCIS fully review the relevant A-Files. DHS
further notes that the processing of Form N-565 often requires the same
use of time and resources by USCIS regardless of the basis for the
request.
Moreover, the fee for Form I-90 differs from the fee for Form N-565
because the adjudication of the two forms differs. LPRs typically apply
for new permanent resident cards every 10 years. Their information is
thus generally up-to-date and readily available in an electronic
system, thus eliminating the need for full A-File reviews when
adjudicating Forms I-90. In addition, Form I-90 adjudication is
streamlined and partially automated because the application exists in
an electronic environment. Filings that involve information that is up-
to-date and available in an electronic system generally require less
processing time than filings that require review of physical records or
multiple systems, or that require the entry of new data.
As noted, the proposed fee for Form N-565 resulted from application
of the standard USCIS fee-setting methodology. Because DHS did not find
a compelling reason to shift the burden of the Form N-565 fee increase
onto other applicants, DHS retains the position expressed in the
proposed rule. This final rule sets the fee for Form N-565 at $555, as
proposed. Applicants who cannot pay the fee may request a fee waiver. 8
CFR 103.7(c)(3)(xv).
h. Petition for Alien Relative, Form I-130
In the NPRM, DHS proposed to increase the fee for the Petition for
Alien Relative, Form I-130, from $420 to $535. See proposed 8 CFR
103.7(b)(1)(i)(L); 81 FR 26937. The proposed fee increase was the
result of application of the standard USCIS fee-setting methodology to
this benefit request.
Several commenters stated that they generally opposed the proposed
increase in the Form I-130 fee because the increase, along with other
proposed increases, would result in a significant financial burden for
certain individuals, especially for low-income immigrants and their
families. Some commenters asserted that the proposed increase of $115
would be disproportionate to the current adjudication time of 45
minutes. Another commenter suggested that fees be higher for businesses
in order to offset the cost for family-based applicants. The same
commenter referenced existing additional fees for H-1B visas and
asserted that DHS should increase fees for O and P visas
[[Page 73303]]
to offset the cost of, and reduce the fees for, family-based
immigration benefit requests. One commenter noted that Form I-130
filings are not eligible for fee waivers.
DHS appreciates the concerns of commenters, but reiterates that
because USCIS is funded almost exclusively by fees, it sets the USCIS
fee schedule based on a full cost recovery model. This means that
although there is a relationship between the proposed fee and the
projected adjudication time of 45 minutes, DHS cannot set fees at a
level that would only recover costs for an individual adjudicator's
time. In order for USCIS to continue to fulfill its mission, DHS must
set fees at a level that accounts for the total resources required for
intake of immigration benefit requests, customer support, fraud
detection, background checks, and administration. Moreover, because DHS
provides some immigration adjudication and naturalization services
(including for families) on a fee-exempt, fee-reduced, or fee-waived
basis, fee-paying applicants and petitioners must at times pay more
than their directly attributable share of costs.
In the case of the Form I-130, the primary reason for the proposed
fee increase was the increase in USCIS' cost baseline for FY 2016/2017,
and specifically the need to cover the costs of certain fee-exempt
services. As noted in the NPRM and in this final rule, the FY 2016/2017
fee schedule adjusts fees to recover the costs related to RAIO, the
SAVE program, and the Office of Citizenship. See 81 FR 26910. In the FY
2010/2011 fee review, the model output for Form I-130 was approximately
$368 before cost reallocation. Cost reallocation was smaller in the FY
2010/2011 fee review because USCIS assumed that appropriations would
recover surcharges related to RAIO, the SAVE program, and the Office of
Citizenship. In the FY 2016/2017 fee review, the model output for Form
I-130, before cost reallocation, was approximately $383.\42\ As
mentioned in the NPRM, in the FY 2016/2017 fee review, USCIS included
RAIO, the SAVE program, and the Office of Citizenship in the cost
baseline. As shown in the supporting documentation, the fee includes
$152 above the model output to ensure that IEFA fees recover full
cost.\43\ The $152 provides revenue for services that do not otherwise
generate revenue (e.g., refugee, asylum, and fee-waived workloads) and
for forms that are held to the 8 percent weighted average increase
based on policy decisions (e.g., forms N-400 and I-600/600A/800/800A).
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\42\ Projected cost refers to the model output column of
Appendix Table 4: Proposed Fees by Immigration Benefit Request in
the supporting documentation.
\43\ The amount here is the difference between the Model Output
and the final fee. Amounts shown in Appendix Table 4: Proposed Fees
by Immigration Benefit Request in the supporting documentation are
rounded to the nearest dollar and all IEFA fees are rounded to the
nearest $5 increment. The sum of the Model Output and the Cost
Reallocation columns may not equal the proposed fee because of
rounding.
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DHS recognizes the burden that proposed fee increases impose on
families and low-income individuals, and takes steps to mitigate that
burden as appropriate. Specifically, after USCIS applies its standard
fee-setting methodology to identify the model output for each benefit
request, USCIS evaluates the model output and determines whether it
should be adjusted. However, downward adjustments for some groups
result in upward adjustments for other groups. There are many benefit
requests that are used by families and low-income individuals, and it
would be unsustainable and arguably unfair for USCIS to consistently
shift the costs of all such requests to a completely unrelated subgroup
of business immigration applicants and petitioners. With that context
in mind, and following review of the public comments received, DHS has
determined that the amount recommended under the fee-setting
methodology was not inordinately high. Thus, DHS is adjusting the fee
for Form I-130 in this final rule, as proposed. Moreover, as stated in
the ``Fee Waivers and Exemptions'' section of this preamble, fee
waivers are not provided for forms, such as Form I-130, that require
petitioners to have the ability to support their intended beneficiary.
DHS believes that this is sound overall policy, especially in light of
the effects of fee waivers on the fees paid by other applicants and
petitioners.
i. Application To Replace Permanent Resident Card, Form I-90
In the NPRM, DHS proposed to increase the fee for the Application
to Replace Permanent Resident Card, Form I-90, from $365 to $455. See
proposed 8 CFR 103.7(b)(1)(i)(G); 81 FR 26937. The proposed fee
increase was the result of application of the standard USCIS fee-
setting methodology to this benefit request.
A number of commenters objected to the proposed fee increase. Some
commenters stated that the proposed fee was unjustified by the
projected completion rate of 13 minutes. The commenters noted that
although the proposed fee represents a significant increase, the
projected completion rate had decreased slightly since the 2010 final
rule. A commenter stated that the proposed increase would impose an
unreasonable burden on many low-income applicants, especially when the
reason for application may be out of their control, such as owning a
prior edition of the card, expiration of the card between the
individual's 14th and 16th birthday, a name change, or a change in
commuter status.
Some commenters stated that USCIS guidance advises naturalization
applicants to file Form I-90 if their permanent resident cards will
expire within six months of the filing of their naturalization
applications, and that USCIS sometimes requires naturalization
applicants to file Form I-90 before completion of the Form N-400
adjudication. These commenters suggested that as a result, some
applicants may file a Form I-90 and a Form N-400 in quick succession,
and that DHS should reduce the combined fee burden for these two forms.
The commenters suggested that DHS provide a discounted or partial fee
for naturalization applicants who are required to file Form I-90.
As noted elsewhere in this preamble, because USCIS is funded almost
exclusively by fees, DHS sets the USCIS fee schedule based on a full
cost recovery model. This means that although there is a relationship
between the proposed fee and the projected adjudication time of 13
minutes, DHS cannot set fees at a level that would only recover costs
for an individual adjudicator's time. In order for USCIS to continue to
fulfill its mission, DHS must set fees at a level that accounts for the
total resources required for intake of immigration benefit requests,
customer support, fraud detection, background checks, and
administration. Moreover, because DHS provides some immigration
adjudication and naturalization services on a fee-exempt, fee-reduced,
or fee-waived basis, fee-paying applicants and petitioners must pay
more than their directly attributable share of costs.
In the case of the Form I-90, the primary reason for the proposed
fee increase is the increase in the USCIS cost baseline for FY 2016/
2017, and specifically the need to cover the costs of certain fee-
exempt services. As noted in the NPRM and this final rule, the FY 2016/
2017 fee schedule recovers costs related to RAIO, the SAVE program, and
the Office of Citizenship. See 81 FR 26910. In the FY 2010/2011 fee
review, the model output fee for Form I-90 was
[[Page 73304]]
approximately $321 before cost reallocation. Cost reallocation was
smaller in the FY 2010/2011 fee review, because USCIS assumed
appropriations that would recover the costs for RAIO, the SAVE program,
and the Office of Citizenship. In the FY 2016/2017 fee review, the
model output fee for Form I-90 was approximately $326, also before cost
reallocation.\44\ But, as mentioned in the NPRM, USCIS included the
above mentioned programs in cost reallocation to recover the full cost
of those programs. As shown in the supporting documentation, the fee is
$129 above the model output fee to ensure that IEFA fees recover full
cost.\45\ The $129 provides revenue for services that do not otherwise
generate revenue (e.g., refugee, asylum, and fee-waived workloads) and
for request types that are held to the 8 percent weighted average
increase based on policy decisions (e.g., Forms N-400 and I-600/600A/
800/800A).
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\44\ See Appendix Table 4: Proposed Fees by Immigration Benefit
Request in the supporting documentation.
\45\ Amounts shown in Appendix Table 4: Proposed Fees by
Immigration Benefit Request in the supporting documentation are
rounded to the nearest dollar and all IEFA fees are rounded to the
nearest $5 increment. The sum of the Model Output and the Cost
Reallocation columns may not equal the proposed fee because of
rounding.
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DHS recognizes that the proposed Form I-90 fee increase would
impose an additional cost burden on filers. But the proposed fee
increase results from application of the standard USCIS fee-setting
methodology, and a downward adjustment favoring all Form I-90 filers,
or a subgroup thereof, would result in upward adjustment of other fees.
DHS has decided to impose this fee at the level dictated by the
standard USCIS fee-setting methodology, as proposed. If applicants
cannot afford to pay the increased Form I-90 fee, they may request a
fee waiver. 8 CFR 103.7(c)(3)(ii).
With respect to the comments concerning naturalization applicants
who are required to file a Form I-90 if their permanent resident card
will expire within six months of filing the naturalization application,
DHS notes that this is not a change in practice. LPRs are required to
have valid, unexpired Permanent Resident Cards, Forms I-551, in their
possession at all times, see INA sec. 264(e), 8 U.S.C. 1304(e), and DHS
regulations require LPRs to file Form I-90 when those cards are set to
expire in six months, see 8 CFR 264.5(b)(2). For this reason, an LPR
with fewer than six months remaining on his or her permanent resident
card must generally file Form I-90, with fee, even if the LPR has
applied for naturalization.\46\ In other words, applying for
naturalization does not eliminate the need to file Form I-90 when a
permanent resident card is about to expire. If Form I-90 is properly
filed, or if Form N-400 is filed at least six months before the
expiration of the applicant's permanent resident card, the applicant
can request an Alien Documentation Identification and Telecommunication
(ADIT) stamp in lieu of filing for a new card.
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\46\ For additional information, see https://www.uscis.gov/i-90
and https://www.uscis.gov/green-card/after-green-card-granted/renew-green-card.
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DHS observes that a permanent resident card generally does not
expire until 10 years after it is received by the LPR. For individuals
who are familiar with the regulatory requirements,\47\ this should be
sufficient time for the applicant to take appropriate action, including
renewing the card or naturalizing before the card expires.\48\
Generally, LPRs become eligible to naturalize after 5 years of
obtaining LPR status, see, e.g., 8 CFR 316.2(a)(3), and the average
processing time for an application for naturalization is approximately
6 months. Therefore, individuals who receive LPR status have ample time
during which they may save for fees, gather documents, and apply for
naturalization before their permanent resident card expires. Moreover,
creating a new process and discounted fee for those Form I-90
applicants who wish to naturalize would increase the administrative
burden of administering both Form I-90 and Form N-400. For the reasons
stated above, this final rule sets the Form I-90 fee at $455, as
proposed, regardless of whether the applicant will also file Form N-400
in the near term.
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\47\ USCIS also provides educational products and resources to
welcome immigrants, promote English language learning, educate on
rights and responsibilities of citizenship, and prepare immigrants
for naturalization and civic participation. In addition, USCIS
provides grants, materials and technical assistance to organizations
that prepare immigrants for citizenship. The USCIS Citizenship
Resource Center helps users better understand the citizenship
process and gain the necessary skills required to be successful
during the naturalization interview and test. See https://www.uscis.gov/us-citizenship/naturalization-test/applicant-performance-naturalization-test/uscis-citizenship-education-resources-and-initiatives.
\48\ See https://www.uscis.gov/green-card/after-green-card-granted/renew-green-card.
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j. Genealogy, Forms G-1041/1041A
In the NPRM, DHS proposed to increase fees for the Genealogy Index
Search Request, Form G-1041, and Genealogy Records Request, Form G-
1041A, from $20 or $35, depending on the format requested, to a single
fee of $65. See proposed 8 CFR 103.7(b)(1)(i)(E)-(F); 81 FR 23967. As
noted in the NPRM, DHS based the proposed fee increase on the ABC model
output fee of $46 for genealogy services, as well as 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. 81 FR 26919 (citing INA sec.
286(t)(1), 8 U.S.C. 1356(t)(1)).
Some commenters objected to the proposed fee increase. Some of
these commenters compared the genealogy fees to state and local
government fees for copies of vital records. Some commenters stated
that the quality and efficiency of genealogy services were insufficient
to justify the proposed fee increase.\49\
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\49\ At least one commenter questioned why USCIS proposed to
collect the biometric services fee for the genealogy workload. While
DHS is revising 8 CFR 103.2(b)(9) to clarify that any individual
filing a benefit request, or any beneficiary of such a request, may
be required to appear for biometric collection and pay the biometric
services fee, DHS did not propose to and will not collect the
biometric services fee for genealogy searches or document requests.
See 81 FR 26917.
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USCIS does not receive any appropriations for its genealogy program
and thus depends on genealogy fees to cover costs, without increasing
other immigration and naturalization fees to support this work.
Genealogy fees have not been adjusted since USCIS created the program
in 2008,\50\ and such fees are currently insufficient to cover the full
costs of the genealogy program. USCIS created the Genealogy Program to
serve people performing genealogy research, including historical
researchers, genealogists, and other members of the public, without
diverting resources from the significant number of Freedom of
Information Act requests to which USCIS must respond.\51\ USCIS thus
proposed to increase the fee to meet the full costs of the program and
permit USCIS to respond to requests for such historical records and
materials. Notwithstanding the fees charged by other government
agencies, which likely face different operational and funding
challenges, USCIS must ensure that it has sufficient funding to fulfill
its mission. Following consideration of the comments on this subject,
DHS has decided to set the final fee at $65, as proposed.
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\50\ See 81 FR 26919; Final Rule, Establishment of a Genealogy
Program, 73 FR 28026 (May 15, 2008).
\51\ Prior to the establishment of the Genealogy Program,
genealogy researchers used the Freedom of Information Act process to
conduct their research.
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[[Page 73305]]
k. Petition To Remove Conditions on Residence, Form I-751
In the NPRM, DHS proposed to increase the fee for the Petition to
Remove Conditions on Residence, Form I-751, from $505 to $595. Proposed
8 CFR 103.7(b)(1)(i)(HH); 81 FR 23968. The proposed fee increase was
the result of application of the standard USCIS fee methodology to this
benefit request.
Some commenters objected to the proposed fee increase. These
commenters stated that Form I-751 is required for people who were
granted conditional permanent residence through marriage, including
spouses of U.S. citizens and their children, to remove the conditions
on their status. The commenters asserted that the new fee is so
burdensome that some applicants may miss their deadline to apply,
putting those applicants at risk of losing their residency and becoming
subject to removal from the United States. A commenter stated that in
2010, DHS increased the I-751 filing fee by $40. The commenter stated
that to now increase it again by another $90 is unjustified,
particularly when USCIS estimates that its projected workload volume
for Form I-751 will decrease by 10,000 receipts from 2010/2011 levels.
The commenter stated that if I-751 workloads will decrease, there is no
justification for an 18 percent fee increase.
As noted previously in this preamble, because USCIS operates almost
exclusively on fees, DHS sets the USCIS fee schedule based on a
standard full cost recovery model. This means that DHS must account for
more than just projected total receipts when setting the fee for a
given benefit. For instance, DHS must account for the likelihood of fee
waivers by setting fees based on projected total fee-paying receipts,
not just projected total receipts. And DHS must also account for the
costs associated with adjudicating each benefit request. If DHS did not
account for fee waivers when setting fees, or for the cost of
adjudicating benefit requests, DHS would not recover sufficient revenue
to cover the cost of the services that DHS provides. Moreover, because
DHS provides some immigration adjudication and naturalization services
on a fee-exempt, fee-reduced, or fee-waived basis, fee-paying
applicants and petitioners must pay more than their directly
attributable share of costs.
In addition, in the case of the Form I-751 specifically, although
workload volume decreased 5.5 percent since the 2010 final rule, fee-
paying volume decreased at a greater rate of 8.4 percent. Moreover, the
completion rate, or the average hours per adjudication, increased 39
percent since the 2010 final rule. Given that fewer fee-paying
applicants are now absorbing the increased costs associated with longer
adjudications, DHS believes the proposed $90 increase since the fee was
last set six years ago is reasonable. Although the proposed increase
would impose an additional cost burden on filers, it results from
application of the standard USCIS fee methodology. A downward
adjustment in favor of Form I-751 petitioners would result in upward
adjustment of other fees. Furthermore, if the petitioner cannot pay the
fee, they may request that the fee be waived. See 8 CFR
103.7(c)(3)(vii). Therefore, this final rule sets the Form I-751 fee at
$595, as proposed.
l. Petition for Alien Fianc[eacute](e), Form I-129F
In the NPRM, DHS proposed to increase the fee for the Petition for
Alien Fianc[eacute](e), Form I-129F, from to $340 to $535. See proposed
8 CFR 103.7(b)(1)(i)(K); 81 FR 23967. The proposed fee increase was the
result of application of the standard USCIS fee methodology to this
benefit request.
Some commenters objected to the proposed fee increase, stating that
it could discourage family reunification. The commenters stated that
the increase would be particularly burdensome because there is no fee
waiver option when filing this form.
As noted previously, DHS is authorized to set fees at a level that
ensures recovery of the full costs of providing immigration
adjudication and naturalization services. Because USCIS relies almost
entirely on fee revenue, in the absence of a fee schedule that ensures
full cost recovery, USCIS would be unable to sustain an adequate level
of service, let alone invest in program improvements. Full cost
recovery means not only that fee-paying applicants and petitioners must
pay their proportionate share of costs, but also that at least some
fee-paying applicants and petitioners must pay a share of the
immigration adjudication and naturalization services that DHS provides
on a fee-exempt, fee-reduced, or fee-waived basis. DHS is therefore
mindful to adhere to the standard USCIS fee methodology as often as
possible, and to avoid overuse of DHS's discretion to eliminate or
reduce fees for special groups of beneficiaries.
The proposed fee for the Form I-129F resulted from application of
the standard USCIS fee methodology. DHS values its role in assisting
U.S. citizens who wish to bring a foreign national fianc[eacute](e) to
the United States to marry, and is sensitive to the extra burden that
the increased filing fee may impose. But if USCIS were to waive or
exempt Form I-129F fees, then other applicants, petitioners, and
requestors would pay higher fees to cover the cost. Because DHS did not
find a compelling reason to shift the burden of the Form I-129F fee
increase onto other applicants, this final rule sets the Form I-129F
fee at $535, as proposed.
Moreover, as a general matter, DHS does not waive fees for
petitions that require the beneficiaries to demonstrate that they will
be able to support themselves financially, or that require the filing
of an affidavit of support. A citizen who files Form I-129F must
document his or her ability to financially support his or her foreign
national fianc[eacute](e). Because a few waiver options would be
inconsistent with this financial support requirement, DHS declines to
allow fee waivers for this form.
m. Petition for Amerasian, Widow(er), or Special Immigrant, Form I-360
In the NPRM, DHS proposed to increase the fee for the Petition for
Amerasian, Widow(er), or Special Immigrant, Form I-360, from $405 to
$435. Proposed 8 CFR 103.7(b)(1)(i)(T); 81 FR 23968. DHS proposed to
hold the increase for these benefit types to an 8 percent increase \52\
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. See 81 FR
26915.
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\52\ The proposed increase was 7.4 percent due to rounding.
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Some commenters objected to the proposed fee increase because of
its potential effect on religious workers. The commenters stated that
religious workers must file additional forms and pay the required fees
to obtain LPR status. The commenters noted that these workers benefit
the United States by becoming integral parts of their religious
ministries, participating in community outreach, and making specific
connections with immigrants who speak the same language. For these
reasons, the commenters requested that the agency not finalize the
proposed fee increase.
Form I-360 may be used to obtain any of a large number of
immigration benefits, some of which allow petitioners to file the form
on a fee-exempt basis.\53\ Many petitioners may
[[Page 73306]]
use the Form I-360 on a fee-exempt basis. For example, there is no fee
for a petitioner seeking classification as an Amerasian; an individual
self-petitioning as a battered or abused spouse, parent, or child of a
United States citizen or LPR; a petitioner seeking Special Immigrant
Juvenile status; or an Iraqi or Afghan national who worked for, or on
behalf of, the U.S. Government in Iraq or Afghanistan. Previous 8 CFR
103.7(b)(1)(i)(T)(1)-(4).
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\53\ See https://www.uscis.gov/i-360.
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For those petitioners who are not fee-exempt, DHS recognizes that
fee increases impose a burden, and DHS takes steps to mitigate such
burdens as appropriate. At the same time, DHS must recover the full
costs of the services that USCIS provides, or else risk reductions in
service quality. In this case, DHS proposed to apply the reduced fee
increase (8 percent) to the Form I-360, for the reasons stated
previously and consistent with DHS's practice of holding a number of
benefit requests to this reduced fee increase. DHS was mindful that
this departure from the standard fee methodology would also result in
higher fees for others. See 81 FR 26915. Although DHS acknowledges the
importance of the religious worker program to many communities, any
further departure would only heighten the effect on the rest of the fee
schedule, and would not be consistent with DHS's overall fee
methodology. In addition, unlike many of the fee-exempt Form I-360
petitioners, religious workers fall into the category of employment-
based immigrants for whom petitioners must demonstrate the ability to
pay a salary. See, e.g., 8 CFR 204.5(g)(2) (requiring a petition which
requires an offer of employment to be accompanied by evidence that the
prospective United States employer has the ability to pay the proffered
wage). This final rule therefore sets the fee for Form I-360 at $435,
as proposed.
n. Notice of Appeal or Motion, Form I-290B
DHS proposed to increase the fee for the Notice of Appeal or
Motion, Form I-290B, from to $630 to $675. Proposed 8 CFR
103.7(b)(1)(i)(S); 81 FR 26938. DHS proposed to hold the increase for
these benefit types to 8 percent \54\ 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 the particular
individuals requesting these types of benefits. See 81 FR 26915.
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\54\ The proposed increase was 7.1 percent due to rounding.
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Some commenters objected to the proposed fee increase. Commenters
stated that the resulting fee, though waivable,\55\ could hinder
individuals from receiving benefits for which they are eligible. The
commenters noted that the time involved in submitting fee waiver
requests jeopardized the chance of meeting the 30-day filing deadline
for appeals. Commenters also expressed disappointment in the appeals
process in general, opining that it was particularly burdensome for
those attempting to rectify USCIS errors. Commenters also stated that
USCIS should allow credit card payments for filing Form I-290B.
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\55\ If the Form I-290B is being filed to appeal or reopen the
denial of an immigration benefit request that is exempt or where a
fee has been waived, the Form I-290B fee may also be waived by USCIS
if the applicant or petitioner demonstrates that he or she is unable
to pay the fee. 8 CFR 103.7(c)(3)(vi) and 103.7(c)(1)(iii). Further,
there is no fee for Form I-290B when an Iraqi or Afghan national who
worked for, or on behalf of, the U.S. Government in Iraq or
Afghanistan appeals a denial of a petition for a special immigrant
visa. 8 CFR 103.7(b)(1)(i)(S).
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DHS appreciates the concerns of the commenters and does not intend
to hinder individuals from receiving benefits for which they are
eligible. At the same time, DHS must recover the full costs of the
services that USCIS provides, or else risk reductions in service
quality. In this case, DHS proposed to apply the reduced fee increase
(8 percent) to these benefit requests, for the reasons stated
previously and consistent with DHS's practice of holding a number of
benefit requests to this reduced fee increase. DHS was mindful that
although this departure from the standard fee methodology would result
in lower fees for Form I-290B filers, it would also results in higher
fees for others. 81 FR 26915. Any further departure would only increase
the effect on the rest of the fee schedule, and would not be consistent
with DHS's overall fee methodology. DHS addresses requests for service
quality improvements and credit card payments later in this preamble.
DHS has made no changes to the fee in this final rule as a result of
these comments, and is finalizing the Form I-290B fee at $675, as
proposed.
o. Application for Civil Surgeon Designation, Form I-910
In the NPRM, DHS proposed to increase the fee for the Application
for Civil Surgeon Designation, Form I-910, from $615 to $785. See
proposed 8 CFR 103.7(b)(1)(i)(TT); 81 FR 26939. Form I-910 is used to
request recognition of a physician as a civil surgeon for purposes of
performing mandatory medical examinations on intending immigrants to
determine whether they are inadmissible based on health-related
grounds. See 8 CFR 232.2(b). The proposed fee increase was the result
of application of the standard USCIS fee methodology to this benefit
request.
At least one commenter stated that the proposed increase may have a
chilling effect on requests from physicians to become approved civil
surgeons. The commenter suggested the possibility of employing a
tiered-fee structure, in which USCIS would offer a lower application
fee in exchange for a physician's commitment to discount fees for
vulnerable children and youth and other indigent applicants.
As noted, the proposed fee increase for the Form I-910 was the
result of application of the standard USCIS fee methodology to this
benefit request. When DHS departs from the standard USCIS fee
methodology to reduce fees for one group, fees for other groups
increase to recover full cost. With respect to the proposal to
establish a tiered fee structure for the application, implementing such
fees would require eligibility and evidentiary requirements for each
fee and income level established. This would add administrative
complexity, and further increase costs. Additionally, USCIS would not
know whether such civil surgeons complied with their commitments to
charge lower fees without regulating and monitoring those civil
surgeons, and incurring the time and costs to do so. Accordingly, no
changes were made in this final rule, which sets the Form I-910 fee at
$785, as proposed.
p. Application for Advance Permission To Enter as a Nonimmigrant, Form
I-192, and Application for Waiver of Passport and/or Visa, Form I-193
In the NPRM, DHS proposed to increase the fee for the Application
for Advance Permission to Enter as a Nonimmigrant, Form I-192, and
Application for Waiver of Passport and/or Visa, Form I-193, from $585
to $930. See proposed 8 CFR 103.7(b)(1)(i)(P); 81 FR 26938. The
proposed fee increase was the result of application of the standard
USCIS fee methodology to this benefit request. In the FY 2016/2017 fee
review, USCIS grouped these benefit requests with other similar benefit
requests, specifically, Forms I-191, I-212, I-601, and I-612.
One commenter stated that for certain filers, CBP, and not USCIS,
adjudicates the benefit request.\56\ The commenter stated that it would
be unfair to increase
[[Page 73307]]
the fee for Form I-192 applications adjudicated by CBP, because those
adjudications do not increase USCIS costs.\57\ The commenter stated
that the proposed increase in the fee for Form I-192 would burden
Canadian and Bermudan nonimmigrant waiver applicants in particular,
because unlike other nonimmigrant waiver applicants who submit their
applications at the same time as visa applications at no additional
charge, Canadians and Bermudans do not require a visa to enter the
United States, and thus pay the full filing fee to submit the waiver
application. The commenter stated that an increase in the filing fee
will hurt local economies in border towns because ``every dollar spent
on a waiver application is a dollar not spent on tourism or retail.''
The commenter did not provide further data or analysis on the potential
impact of the proposed fee increase on such economies.
---------------------------------------------------------------------------
\56\ The commenter acknowledged that USCIS adjudicates Form I-
192 for T and U nonimmigrants.
\57\ The commenter did not mention Form I-193 applications, but
such applications are similarly affected by this rulemaking.
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In response to this comment, DHS is not implementing the fee
increase proposed in the NPRM with respect to those Forms I-192 filed
with and processed by CBP, and all Forms I-193. CBP uses the fee
revenue from these forms to defray its own costs related to such
processing. The FY 2016/2017 fee review and resulting proposed fee
change was based on USCIS's costs for processing inadmissibility
waivers. Therefore, under this final rule, DHS adjusts only the fee for
those Forms I-192 filed with and processed by USCIS. Consequently, Form
I-192 will have two fees--$585 for those filed with CBP and $930 for
those filed with USCIS. New 8 CFR 103.7(b)(1)(i)(P). All filings of
Form I-193 are processed by CBP and thus DHS will also not adjust the
current $585 fee. New 8 CFR 103.7(b)(1)(i)(Q).
C. Fee Waivers and Exemptions
DHS proposed no changes to the USCIS fee waiver policies in the
NPRM. DHS noted, however, that the lost revenue from fee waivers and
exemptions has increased markedly, from $191 million in the FY 2010/
2011 fee review to $613 million in the FY 2016/2017 Fee Review. DHS
also explained the fee waiver process. See 81 FR 26922. DHS received a
number of comments on its fee waiver and exemption policies. Some
commenters on this subject requested that DHS permit fee waivers for
additional immigration benefit requests. Others asked that DHS make
more requests exempt from fee requirements.
Applicants, petitioners, and requestors who pay a fee cover the
cost of processing requests that are fee-waived or fee-exempt. Id.\58\
While a number of commenters suggested that USCIS expand the range of
applications and petitions for which USCIS would consider a fee waiver,
none provided a compelling argument for why a particular form that is
not eligible for fee waivers should be made eligible in this final
rule.
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\58\ USCIS compares fee-paying receipts to the total number of
receipts to determine a fee-paying percentage for each immigration
benefit request. See page 16 of the supporting documentation in the
rulemaking docket for an explanation of fee-paying volume and
methodology.
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For example, one commenter recommended that USCIS make fee waivers
available for all applications. DHS recognizes that some applicants
cannot pay filing fees, and has established a fee waiver process for
certain forms and benefit types. USCIS carefully considers the merits
of each fee waiver request before making a decision. Expansion of fee
waiver policy to include all immigration benefit request fees would
significantly increase administrative and adjudicative costs. Although
DHS recognizes that filing fees impose a heavy burden on people of
limited financial means, the costs of allowing fee waivers across the
board would be borne by all other fee payers, because the cost of
providing services with a discount or without a fee must be transferred
to those who pay a full fee. Thus, USCIS takes a relatively careful
position with respect to transferring costs from one applicant to
another through the expansion of fee waiver eligibility.
DHS notes that, in response to stakeholder concerns about the fee
waiver process and rejections of fee waiver requests, USCIS recently
published a new Request for Fee Waiver, Form I-912. It revised the form
to clarify the instructions, make the form less complex, and reduce the
number of incomplete fee waiver requests that are ultimately rejected.
In addition, because many applicants have had difficulty providing all
the requested information in the spaces provided on the previous form,
USCIS also included text boxes that provide space for explanations.
Those boxes reduce the need for attachments, and make the form more
user-friendly.
As for fee exemptions, DHS already exempts from fees those requests
with compelling circumstances. These exemptions include benefit
requests for a range of humanitarian and protective services, such as
refugee and asylum processing, assisting victims of crime and human
trafficking, and other related services. USCIS also may allow fee
exemptions based on economic necessity in the event of incidents such
as an earthquake, hurricane, or other natural disasters affecting
localized populations by using the authority of the Director of USCIS
at 8 CFR 103.7(d). DHS proposed no new exemptions in the NPRM, and
knows of no compelling reason for exempting a new group of applicants,
petitioners, or requestors from a fee. Therefore, DHS has added no new
exemptions in this final rule.
D. Naturalization
In the NPRM, DHS proposed to increase the fee for the Application
for Naturalization, Form N-400, from $595 to $640. Proposed 8 CFR
103.7(b)(1)(i)(BBB); 81 FR 26939. DHS proposed to hold the increase for
the Form N-400 to the reduced fee increase (8 percent) \59\ to support
naturalization. DHS also proposed 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. Proposed 8 CFR 103.7(b)(1)(i)(BBB)(1); 81 FR 26939.
Specifically, DHS proposed that such applicants would receive a 50
percent discount, resulting in a fee of $320 for Form N-400. DHS
proposed this reduced fee option to limit any potential economic
disincentives that some eligible naturalization applicants may face
when deciding whether or not to seek U.S. citizenship. The lower fee is
intended to help ensure that those who have become eligible for
naturalization are not prohibited from naturalizing due to their
economic means.
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\59\ The proposed increase was a 7.5 percent due to rounding.
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Several commenters stated that the price of this benefit is already
too high. Another commenter stated that the fee for Form N-400 should
be increased based on the value of U.S. citizenship, not just the costs
associated with adjudicating the form. And, while generally opposed to
the fee increase, several commenters wrote in support of USCIS' efforts
to alleviate some of the associated burdens by establishing a three-
level fee for Form N-400, including a fee of $320 for certain low-
income applicants who do not qualify for the existing fee waiver. The
commenters stated that by doing so, USCIS will expand the pool of
potential applicants.
DHS agrees with commenters that citizenship is a benefit that
deserves special consideration and promotion. Therefore, DHS did not
propose a fee
[[Page 73308]]
that reflected all of the costs associated with the relative complexity
of the adjudication. The Application for Naturalization fee has not
changed in nearly a decade. Additionally, the fee established in this
rule for Form N-400 is less than it would be if the 2007 fee were
simply adjusted for inflation. According to the Bureau of Labor
Statistics, the semiannual average inflation from July 2007 to July
2016 was 16.1 percent.\60\ If adjusted only for inflation, the current
$595 fee would be $690, which is $50 more than the $640 fee set by this
rule. DHS has not previously adjusted Form N-400 by CPI-U inflation,
but provides this as a point of comparison.
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\60\ The semiannual average consumer price index for all urban
consumers (CPI-U) was 205.7 in July 2007 and 238.8 in July 2016. The
change in the Index over 9 years was 33.1 or 16.1 percent. See U.S.
Department of Labor, Bureau of Labor Statistics, All Urban Consumers
(CPI-U) Semiannual Average tables, available at http://www.bls.gov/cpi/cpi_dr.htm.
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As for the comment requesting that the Form N-400 fee be based on
the value of U.S. citizenship, doing so would require quantifying that
value, which assuming it is appropriate or even possible to do
precisely, would be beyond the scope established by the proposed rule.
The USCIS ABC model is based on estimated operational costs, and DHS
has set the fee at a level that adheres to the fee review methodology,
which includes full cost recovery. See new 8 CFR 103.7(b)(1)(i)(BBB).
DHS therefore sets the fee for Form N-400 at $640, as proposed.
E. Improve Service and Reduce Inefficiencies
Many of the comments received that opposed fee increases cited
delays in processing times and dissatisfaction with customer service.
Some of these commenters stated that they would embrace the fee
increases if they resulted in faster processing and improved customer
service. A few commenters asserted that if DHS implements any type of
USCIS fee increase, then USCIS should guarantee that it will reduce
benefit request processing times. At least one commenter recommended
increasing the fees further so there would be no excuse for delays in
processing. Other commenters wrote about expanding electronic filing
and receipting to reduce mail handling and shipping of paper. USCIS
acknowledges that since it last adjusted fees in FY 2010, the agency
has experienced elevated processing times compared to the goals
established in the 2007 fee rule. See 72 FR 29858-29859. 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 RAIO, the
SAVE program, and the Office of Citizenship. This was done in
anticipation of congressional appropriations for these programs,
consistent with the President's budget requests. As the anticipated
budget request was not granted, since FY 2012 USCIS has used other fee
revenue to support these programs. Under this final rule, DHS will
adjust USCIS fees by a total weighted average increase of 21 percent;
the total 21 percent weighted average increase will be allocated as
follows:
To reinstate a surcharge in the fee schedule to sustain
the current operating levels of RAIO, the SAVE program, and the Office
of Citizenship (approximately 8 percent);
To account for reduced revenue stemming from an increase
in fee waivers granted since FY 2010 (approximately 9 percent); and
To 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 final rule, USCIS expects to collect sufficient fee
revenue to sustain current operating levels of RAIO, the SAVE program,
and the Office of Citizenship. This change will allow USCIS to
discontinue diverting other fee revenue to fund these programs, thereby
increasing the resources available to fund additional personnel \61\
needed to improve case processing, reduce backlogs, and move toward
processing times that are in line with the commitments in the FY 2007
fee rule.
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\61\ For additional information on staffing, see second bullet
on pg. 13, Alignment of USCIS Staffing Allocation Model with the Fee
Review on pg. 26, and Appendix XIII Table 12: IEFA Positions by
Office in the supporting documentation.
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While the agency remains committed to achieving the processing goal
commitments in the 2007 fee rule, it acknowledges that these goals
remain ambitious. By its very nature, the fee review cycle uses
historical staffing and workload information to establish future needs,
and as a result, cannot identify the exact resources necessary to
guarantee future processing goals. In addition, superseding priorities
may arise, which could not have been known at the time fee cycle
calculations were made, that may impact USCIS' ability to meet customer
expectations. USCIS will need to continue addressing emergent issues
and their associated costs, which may impact case processing efficiency
and backlogs. Nevertheless, the agency holds the 2007 processing goals
to be among its highest priorities and recommits to achieving them as
quickly as possible.
In addition, USCIS is committed to providing stakeholders and
customers with the information they need, when they need it. To that
end, USCIS 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.
For instance, to make current published processing time information
more transparent and less complex 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 it
continues 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 that has elapsed
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).
DHS appreciates the comments requesting expansions of electronic
filing, and USCIS is actively planning the expansion of its online case
management system for the submission and adjudication of immigration
benefits. As of the end of FY 2016, approximately 17 percent of the
agency's intake was processed through
[[Page 73309]]
online filing and we are striving to increase that level.
In sum, DHS appreciates the commenters' concerns for timely
service. USCIS continually strives to meet timely adjudication goals
while balancing security, eligibility analysis, and integrity in the
immigration system. Fees have not been adjusted since 2010 and that fee
rule did not include the surcharge for RAIO, the SAVE program, and the
Office of Citizenship, which has resulted in the reprioritization of
resources to cover those program costs. This fee rule is intended to
address such shortfalls and provide resources necessary to ensure
adequate service. USCIS would be unable to adequately perform its
mission if DHS allowed fee levels to remain insufficient while USCIS
continued to develop its search for additional efficiencies.
F. Premium Processing
Premium processing is a program by which filers may request 15-
calendar-day processing of certain employment-based immigration benefit
requests if they pay an extra amount. 8 CFR 103.7(b)(1)(i)(RR) and (e);
proposed 8 CFR 103.7(b)(1)(i)(SS); 81 FR 26939. In 2000, 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).
Section 286(u) of the INA, 8 U.S.C. 1356(u). USCIS adjusted the premium
processing fee to $1,225 by using the CPI in the 2010 final rule.\62\
See 75 FR 58979. DHS proposed no change to premium processing fees or
regulations because forecasted premium processing revenue is sufficient
to cover the projected costs of providing the premium service and other
permissible infrastructure investments.
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\62\ Premium processing fees are increased using the CPI through
statutory authority. See INA sec. 286(u), 8 U.S.C. 1356(u).
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Several commenters wrote to request that USCIS expand premium
processing to other forms, including family-based immigration benefit
requests, naturalization, relief for victims of crimes who assist law
enforcement, and forms related to the EB-5 Immigrant Investor Program.
Some commenters stated that using premium processing revenue may
alleviate backlogs. Other commenters stated that premium processing is
essentially mandatory to ensure the timely and efficient processing of
their employment-based petitions.
Assuming DHS has the general authority to offer expedited
processing fees to additional forms, the timing requirements of many
adjudications involve considerations that are out of USCIS' control.
For example, background checks, the timing of which are not controlled
by USCIS, are required for: The Application for Temporary Protected
Status, Form I-821; the Application for Naturalization, Form N-400; the
Application for Provisional Unlawful Presence Waiver, Form I-601A; and
the Application to Register Permanent Residence or Adjust Status, Form
I-485. These and many other forms are not suited for expedited
processing. USCIS already seeks processing efficiencies where available
and shifts workload to balance volume surges, seasonal demands, and
competing priorities.
In addition, where expedited processing may be possible, it would
be extraordinarily time-intensive to determine the appropriate fee
amount, target adjudication timeframe, and staffing levels needed to
implement a new expedited processing program. 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 for other
immigration benefit requests. Nevertheless, USCIS will continue
considering additional premium processing services and its ability to
improve services without creating new challenges. DHS made no changes
in this final rule as a result of these comments.
G. Immigrant Investors
In the NPRM, DHS proposed a number of changes to fees related to
the Employment-Based Immigrant Visa, Fifth Preference (EB-5)
``Immigrant Investor'' Program.\63\ Specifically, DHS proposed to
increase the fee for the Application for Regional Center Under the
Immigrant Investor Program, Form I-924, from $6,230 to $17,795. See
proposed 8 CFR 103.7(b)(1)(i)(WW); 81 FR 26939. DHS proposed to
establish a new fee for the Annual Certification of Regional Center,
Form I-924A, at $3,035. See proposed 8 CFR 103.7(b)(1)(i)(XX); 81 FR
26939. DHS proposed to increase the fee for the Immigrant Petition by
Alien Entrepreneur, Form I-526, from $1,500 to $3,675. See proposed 8
CFR 103.7(b)(1)(i)(W); 81 FR 26938. Finally, DHS proposed to hold the
fee for the Petition by Entrepreneur to Remove Conditions, Form I-829,
at $3,750. See proposed 8 CFR 103.7(b)(1)(i)(PP); 81 FR 26939. With the
exception of the proposed fee for Form I-829, each proposed EB-5 fee
increase was the result of application of the standard USCIS fee
methodology to the applicable benefit request.
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\63\ 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. Pub. L. 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
sec. 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
sec. 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 sec. 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 sec. 203(b)(5), 8
U.S.C. 1153(b)(5); 8 CFR 204.6(e) and (m)(7). For more information
on the EB-5 program, see https://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/about-eb-5-visa.
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Several commenters objected to the proposed increases, noting that
these are some of the highest proposed fee increases, while the related
benefit requests have some of the longest processing times. Another
commenter wrote to applaud the increase to EB-5 fees in general, but
requested that USCIS conduct site visits and evaluate whether regional
centers are misrepresenting themselves to investors.
As an initial matter, and as noted previously, DHS is authorized to
set fees at a level that ensures recovery of the full costs of
providing immigration adjudication and naturalization services. Because
USCIS relies almost entirely on fee revenue, in the absence of a fee
schedule that ensures full cost recovery, USCIS would be unable to
sustain an adequate level of service, let alone invest in program
improvements. Full cost recovery means not only that fee-paying
applicants and petitioners must pay their proportionate share of costs,
but also that at least some fee-paying applicants and petitioners must
pay a share of the immigration adjudication and naturalization services
that DHS provides on a fee-exempt, fee-reduced, or fee-waived basis.
DHS is therefore mindful to adhere to the standard USCIS fee
methodology as often as possible, and to avoid overuse
[[Page 73310]]
of DHS's discretion to eliminate or reduce fees for special groups of
beneficiaries.
The proposed fees for three of the four EB-5 Program forms resulted
from application of the standard USCIS fee methodology,\64\ because DHS
did not find a compelling reason to shift the burden of adjudicating
these forms onto other applicants. In addition, the relatively high
fees for these requests result in part from the high costs associated
with adjudicating them. For instance, USCIS has recently implemented
several changes to refine and improve the delivery, security and
integrity of the EB-5 Program. USCIS established the Immigrant Investor
Program Office (IPO) in Washington, DC 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 increased 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. Currently, USCIS is in the process of hiring and training
additional adjudicators, economists, and support staff needed to
adjudicate the benefit requests associated with the EB-5 program. Part
of the increase in fees for EB-5-related adjudications will bolster the
fraud detection and national security capabilities of USCIS to
investigate fraud and abuse at all levels of the EB-5 process,
including investigating projects that receive funds from EB-5 investors
and auditing regional center annual reports to enhance compliance with
the program. See 81 FR 26918. Each of these factors contributed to the
proposed EB-5 Program fees.
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\64\ The proposed fee for the Form I-829 was above the model
output, as described in the proposed rule.
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In the immediately succeeding section, as well as in the Paperwork
Reduction Act section of this preamble, DHS responds to additional
comments on the proposed EB-5 fees.
1. Application for Regional Center Under the Immigrant Investor
Program, Form I-924
In the NPRM, DHS proposed to increase the fee for the Application
for Regional Center Under the Immigrant Investor Program, Form I-924,
from $6,230 to $17,795. See proposed 8 CFR 103.7(b)(1)(i)(WW); 81 FR
26939. The proposed fee increase was the result of application of the
standard USCIS fee methodology to the benefit request.
At least one commenter wrote to oppose the proposed Form I-924 fee
increase due to the possible impact on EB-5 regional centers. The
commenter recommended a possible reduced fee for centers in existence
for fewer than 5 years. The same commenter stated dissatisfaction with
the level of customer service that USCIS has provided and suggested
that USCIS create an electronic platform for EB-5 regional centers to
monitor their applications and cases. Other commenters stated that the
proposed fee increase were unreasonable and inflated, especially in
light of long processing delays. At least one commenter stated that
regional centers in rural and high-unemployment areas are less capable
of withstanding long processing delays. The same commenter stated that
the proposed 286 percent fee increase for the Form I-924 should be
accompanied by an assurance that processing times would be cut by 75
percent. The commenter stated that an alternative to processing time
reductions would be to create a process in which regional centers would
be automatically approved if USCIS does not provide a notice of action
within 4 months, or if USCIS does not summarily reject a petition for
which there have been prior approvals on the same project. Another
commenter stated that DHS could adopt a tiered fee structure for Form
I-924 based on whether the associated investment project was an actual
or exemplar project. At least one commenter mentioned the potential for
legislation to alter the regional center requirements.
USCIS understands the desire of EB-5 regional centers to receive
prompt and courteous service, and the agency strives to provide the
best level of service possible. As the program has grown and applicants
and projects have become more advanced, the current fee level has
proven to be inadequate to ensure that USCIS has the resources it
needs. The proposed fee increase was determined using USCIS's standard
fee-setting methodology, based on the number of hours required to
adjudicate Form I-924. These adjudications require economists and
adjudications officers to thoroughly review extensive business
documents, economic impact analyses, and other project-related
documents. The proposed fee increase was, in part, calculated to allow
USCIS to hire additional staff to process Forms I-924 and provide
better and more thorough service.
Currently, USCIS does not have the data to quantify alternative
fees for regional centers in existence for fewer than 5 years. In
addition, USCIS does not track Form I-924 completion rates based on
whether the project involves a rural or urban area, an area of high or
low employment, or an actual or exemplar project. USCIS also cannot
commit to across-the-board processing time reductions as adjudications
involve case-by-case review of complex applications and related
supplementary information, nor can it implement a process that
automatically approves a regional center without a complete
adjudication. Moreover, USCIS does not prioritize Form I-924 workloads
based on whether regional center projects involve a rural or urban
area, or an area of high or low employment. DHS may consider exploring
the feasibility of such a change in the future, but will not implement
a change at this time.
With respect to the commenter that identified the possibility of
legislative changes, USCIS greatly appreciates the work of stakeholders
towards reauthorization of the Regional Center Program and reform of
the EB-5 program more generally. USCIS is cognizant of potential
legislative changes to the EB-5 program and is also aware that such
changes may require adjustments to USCIS adjudication processes. In the
event that legislative changes are enacted, USCIS would assess any
significant changes and reassess program requirements, adjudication
process, and required fees. For now, however, and for the reasons
stated previously, this rule sets the Form I-924 fee at $17,795, as
proposed.
2. Immigrant Petition by Alien Entrepreneur, Form I-526
In the NPRM, DHS proposed to increase the fee for the Immigrant
Petition by Alien Entrepreneur, Form I-526, from $1,500 to $3,675. See
proposed 8 CFR 103.7(b)(1)(i)(W); 81 FR 26938. The proposed fee
increase was the result of application of the standard USCIS fee
methodology to the benefit request.
Some commenters wrote to request additional information on the
proposed fee increase. Another commenter stated that a lack of
processing efficiency can cause problems for Form I-526 applicants.
Specifically, the commenter stated that EB-5 project sponsors sometimes
agree to put an investor's money in escrow until the Form I-526 is
approved. If the form is denied, project sponsors return those funds to
the investor; if approved, the project sponsor uses those funds on the
project. The commenter stated that such projects can languish when the
investor's money is held in escrow for lengthy periods of
[[Page 73311]]
time. According to the commenter, although escrow arrangements provide
substantial benefits to program integrity, they are becoming
commercially untenable due to Form I-526 processing times. The
commenter also asserted that projects themselves are also hurt by
lengthy processing times, as projects may be well underway by the time
USCIS denies the forms.
USCIS has taken multiple steps towards reducing Form I-526
processing times. As previously mentioned, USCIS is in the process of
hiring and training additional adjudications officers, economists, and
support staff for these form types. Additionally, USCIS is working to
revise the EB-5 regulations and is preparing revisions to the EB-5
Policy Manual. USCIS is also improving the forms and form instructions
for the EB-5 program. The EB-5 program fee increases will further these
agency efforts with the goal of improving operational efficiencies
while enhancing predictability and transparency in the adjudication
process. USCIS understands that long delays in Form I-526 adjudications
negatively impact both immigrant investors and the projects awaiting
the release of their investment funds from escrow. USCIS strives to
process Form I-526 filings as soon as practicable. In addition,
regarding the release of escrowed funds, USCIS permits EB-5 financing
to replace interim financing where the financing to be replaced was
contemplated as temporary financing that would be replaced.\65\ DHS
made no changes to the proposed Form I-526 fee as a result of these
comments, and is finalizing the fee at $3,675, as proposed.
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\65\ See Policy Memorandum, EB-5 Adjudications Policy (May 30,
2013) at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2013/May/EB-5%20Adjudications%20PM%20(Approved%20as%20final%205-30-13).pdf.
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3. Petition by Entrepreneur To Remove Conditions, Form I-829
In the NPRM, DHS proposed to hold the fee for the Petition by
Entrepreneur to Remove Conditions, Form I-829, at $3,750. See proposed
8 CFR 103.7(b)(1)(i)(PP); 81 FR 26939. While the fee model calculated a
fee of $2,353, DHS proposed to maintain the current fee for such
petitions. See 81 FR 26918. Because of the recent and continued growth
and maturation of the EB-5 Program, associated costs over the next few
fiscal years are uncertain. Among other things, the final parameters of
the program are still evolving, such as the number of USCIS employees
and facilities necessary to carry out enhanced review of EB-5 filings,
as well as site visits. This uncertainty makes it unclear whether EB-5
related fees will fully fund EB-5 program activities. DHS therefore
proposed to keep the Form I-829 at the current fee, above the full cost
recovery calculation, to shield USCIS against potential, but likely
rising costs.\66\
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\66\ [thinsp]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.
---------------------------------------------------------------------------
At least one commenter indicated current USCIS processing times for
Form I-829 extend beyond the 1-year automatic extension of the
entrepreneur's conditional residence, imposing an additional burden on
petitioners traveling outside of the United States. The commenter
stated that delays in processing Form I-829 mean that investments must
remain at risk for an extended period of time. The commenter added that
USCIS could increase the efficiency of Form I-829 adjudications by
consolidating the business-related portions of multiple Forms I-829
associated with a single investment project into a single adjudication.
Another commenter recommended that USCIS implement electronic filing of
this and other forms related to the Immigrant Investor Program to
increase efficiency.
USCIS recognizes that lengthy Form I-829 processing times place a
strain on EB-5 investors who are awaiting approval of their
applications to adjust to LPR status. USCIS is working diligently to
add staffing, and the agency plans to publish regulatory action, policy
guidance, and revised forms with the goal of improving service delivery
to applicants and improving the integrity of the EB-5 program. In part
due to the tentative nature of these plans, DHS has no way to reliably
quantify any potential cost savings that might be associated with these
actions, and therefore could not propose to reduce the Form I-829 fee
to account for such savings.
DHS appreciates the suggestions for improving EB-5 processing
times. DHS clarifies that USCIS already has processes in place to
streamline adjudication of the business-related portions of multiple
Forms I-829 associated with a single, new investment project.
Specifically, when USCIS receives a regional center-associated Form I-
829 that involves a new commercial enterprise, USCIS reviews the first
two petitions associated with that new commercial enterprise to
determine if there are specific project-related issues that would apply
to all petitioners associated with the new commercial enterprise. After
completing that review, USCIS commences adjudication of all Forms I-829
associated with that new commercial enterprise filed within a given
period. Similarly, when USCIS receives a regional center-associated
Form I-829 that involves a previously reviewed commercial enterprise,
USCIS immediately assigns that petition for adjudication. In other
words, USCIS currently adjudicates Form I-829 petitions in ``first in,
first out'' order by new commercial enterprises. USCIS constantly
searches for new ways to increase efficiencies in the adjudications
process, and for that reason cannot commit to a uniform queuing
practice in this rule, or reduce associated fees in anticipation of
heretofore unrealized savings.
USCIS does not have immediate plans to allow electronic filing for
EB-5 requests, but appreciates commenters' desire to avoid voluminous
paper filings. USCIS plans to allow electronic filing for EB-5 requests
in the future. DHS made no changes to the proposed Form I-829 fee, or
the policies regarding EB-5 adjudications, as a result of these
comments. The final rule sets the Form I-829 fee at $3,750, as
proposed.
H. Methods Used To Determine Fee Amounts
As described previously and in the NPRM, the standard USCIS fee-
setting methodology is intended to ensure full cost recovery for USCIS
immigration adjudication and naturalization services. DHS based the
proposed USCIS fees on the estimated costs of providing immigration
benefit adjudication and naturalization services. In addition, to the
extent possible, and with limited exception, DHS based the proposed
USCIS fees on the relative identifiable costs associated with providing
each particular benefit or service. This fee methodology is consistent
with government-wide fee-setting guidelines outlined by OMB Circular A-
25, 58 FR 38142 (July 15, 1993); \67\ the principles of the Chief
Financial Officers Act of 1990, 31 U.S.C. 901-03; and the Federal
Accounting Standards Advisory Board (FASAB) guidelines.\68\ Additional
information about the fee methodology can be found in this preamble,
the preamble for the
[[Page 73312]]
proposed rule, and the supporting documentation accompanying this
rulemaking.\69\
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\67\ Office of Management and Budget, Circular A-25, User
Charges, available at http://www.whitehouse.gov/omb/circulars_a025/.
\68\ Handbook, Version 14 (06/15), available at http://files.fasab.gov/pdffiles/handbook_sffas_4.pdf.
\69\ The USCIS fee methodology is not intended to yield a profit
for the agency nor the Federal Government. The sole purpose of USCIS
IEFA fees is to achieve full cost recovery to allow the agency to
provide an adequate level of service. USCIS filing fees are not
designed to function as tariffs, to generate general revenue to
support broader policy decisions, or to deter certain behavior. As
previously stated in this final rule, filing fees are generally not
intended to influence public policy in favor of or in opposition to
immigration, support broader infrastructure, or cover costs beyond
USCIS.
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DHS received a number of comments regarding the methods that DHS
uses to determine fee amounts. Commenters made statements about the
need for full cost recovery without appropriations, the decision to
exclude revenue from certain benefits in the proposed fee schedule,
potential alternative fee methodologies, and the potential for cost
reductions. DHS responds to these comments below.
1. Recovery of Full Cost Without Appropriations
Some commenters suggested that USCIS seek appropriations to reduce
immigration benefit request fees. Some commenters opposing the fee
increase mentioned that immigrants in the United States pay Federal
income taxes, Social Security taxes, and other fees and questioned
whether those are being accounted for in USCIS fee calculations.
Commenters stated that appropriations could help reduce processing
times or fund programs that do not recover full cost on their own, such
as RAIO, the SAVE program, and the Office of Citizenship.
DHS acknowledges that immigrants pay both Social Security and
various Federal taxes and fees, but the decision whether to fund USCIS
services through tax revenues belongs to the U.S. Congress. And in
recent years, such funding has been unavailable. As noted in the NPRM,
USCIS is almost entirely funded by fees and must recover the full cost
of its operations. See 81 FR 26905-26912. Fees collected from
individuals and entities filing immigration benefit requests are
deposited into the IEFA and used to fund the cost of immigration
benefits and naturalization. Id. USCIS has not received any substantial
appropriations since FY 2011. Similarly, USCIS received no FY 2016
discretionary appropriations for the SAVE program or the Office of
Citizenship. See DHS Appropriations Act 2016, Public Law 114-113, div.
F. (Dec. 18, 2015) and 81 FR 26912. USCIS did not receive
appropriations for refugee and asylum processing or the SAVE program
after FY 2011. USCIS received $2.5 million for the immigrant
integration grants program in FY 2013 (Pub. L. 113-6) and FY 2014 (Pub.
L. 113-76), but the agency did not receive appropriations for that
program in FY 2015 or FY 2016. The only USCIS appropriations for FY
2016 provided funding for the E-Verify employment eligibility
verification program. See Consolidated Appropriations Act, 2016, Public
Law 114-113, div. F, tit. IV (Dec. 18, 2015) (DHS Appropriations Act
2016). Other than as described, USCIS receives no appropriations to
offset the cost of adjudicating immigration benefit requests. Id. As a
consequence of this funding structure, taxpayers do not bear any costs
related to the IEFA and bear only a nominal burden to fund USCIS.
However, in the event appropriations are provided that will materially
change IEFA fees, then DHS could pursue a rulemaking to adjust fees
appropriately.
Finally, one commenter questioned why SAVE fees charged to local,
state, and Federal agencies do not recover the full cost of the SAVE
program. USCIS collects SAVE fees from federal government agencies
under the authority of the Economy Act, 31 U.S.C. 1535, and from state
or local government agencies under the authority of the Inter-
Governmental Cooperation Act, 31 U.S.C. 6501. SAVE fees are included in
Memoranda of Agreement (MOAs) with user agencies, which are updated
based on the established periods of performance. As noted in the
proposed rule, SAVE fees impact the IEFA fees established in this rule
only as necessary to fund the SAVE costs that remain after taking into
account revenue received under the MOAs. See 81 FR 26911. Fees charged
to SAVE users do not cover the full cost of the SAVE program; rather,
they only cover the estimated per-query cost of operating the
verification system. IEFA funds are used to cover other costs of the
program, especially personnel and overhead expenses. In short, then,
the funding structure for SAVE is a dual one, in which some costs are
covered by reimbursements, and other costs from IEFA funds. Congress
has supported this funding arrangement in the past, noting ongoing
budget constraints.\70\ As the commenter requests, USCIS and DHS
regularly examine SAVE fees, and may modify them in the future.
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\70\ H.R. Rep. No. 112-492 (May 23, 2012).
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2. Exclusion of Temporary or Uncertain Costs, Items, and Programs
As noted in the NPRM, DHS excluded from the fee model the costs and
revenue associated with certain programs that are time-limited or that
may otherwise be narrowed or terminated, including because they are
predicated on guidance and not preserved in regulations or statute.\71\
See 81 FR 26914-26915. This exclusion applies to the Application for
TPS, Form I-821; 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. As stated in the NPRM, DACA
and TPS are both administrative exercises of discretion that may be
granted on a case-by-case basis for particular periods of time. Both
TPS and DACA, and the individual grants under each, are subject to
intermittent renewal or extension at DHS's discretion. 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. Given that these
initiatives or programs are temporary by definition and at the
discretion of DHS, USCIS excluded the associated cost and workload from
the fee review and did not propose to allocate overhead and other fixed
costs to these workload volumes. See 81 FR 26915.
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\71\ As noted in the proposed rule, for the purposes of this
rulemaking, 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 an immigration
benefit. For example, DACA is solely an exercise of prosecutorial
discretion by DHS and not an immigration benefit, and 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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Some commenters wrote to question the rationale for excluding DACA
and TPS from the fee review. Several commenters stated that it is a
financial burden to have to renew DACA every 2 years and to renew TPS
every 18 months. Other commenters stated that, by their own estimates,
the cost of administering DACA is less than the revenue that the
program generates. Some commenters stated that fee increases to Forms
I-765 and I-131 would deter DACA and TPS renewals and initial
applications.
Following consideration of the comments received, DHS retains its
earlier position. The practice of excluding these initiatives or
programs that are temporary by definition from the fee review mitigates
an unnecessary revenue risk, by ensuring that USCIS
[[Page 73313]]
will have enough revenue to recover full cost regardless of DHS's
discretionary decision to continue these initiatives. This allows DHS
to maintain the integrity of its ABC model, ensure recovery of full
costs, and mitigate revenue risk from unreliable sources.
For these reasons, the cost of adjudicating requests associated
with these policies was not considered, and this final rule excludes
from the ABC model the costs and revenue associated with aforementioned
policies, as proposed.
3. Setting Fees by Benefit Type
A commenter stated that IEFA fees should be based on the specific
immigration benefit sought by a filer, rather than the specific form
type used. The commenter noted that USCIS tracks completion rate (i.e.,
adjudication time) by form number, and that the agency generally
establishes a fee for the form type rather than the benefit being
sought through the filing, even if the same form can be used to obtain
different immigration benefits. For example, Form I-129 is used to
request several types of nonimmigrant visa classifications, and a
different fee could conceivably be calculated for each such
classification.\72\
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\72\ Currently, the fee is the same for each Form I-129 filed.
This fee has historically been calculated based on the average level
of complexity for the adjudication of the form.
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USCIS already sets some of its fees based on benefit sought, rather
than form type used. For example, USCIS sets different fees for Form I-
131 depending on the benefit sought, and the agency provides fee
exemptions to certain filers of Form I-360. For other forms that have
multiple uses, USCIS has not calculated the completion rate with enough
precision to determine fees based on the benefits sought by filers of
those forms. USCIS officers are required to manually report the time
they spend on adjudicating forms; requiring reporting for sub-uses of
those forms would divert time from processing requests. In addition,
tracking whether filers are submitting the appropriate fees for the
specific benefit sought would increase complexity for the agency and
the public, potentially adding to processing delays. Nonetheless, DHS
will continue considering this comment and may further refine its fee-
setting methodology in the future to determine if different fees for
the same form can be justified, as well as accurately and efficiently
determined, without causing confusion and delay for adjudicators and
the public. DHS made no changes in this final rule as a result of this
comment.
4. Income-Based Fee Structure
Some commenters stated that DHS should generally base fees on the
filer's income level or cost of living. Although USCIS is adopting a
limited income-based fee structure in the naturalization context,
adjusting all fees based on income or cost of living would be
administratively complex and would require even higher costs to
administer. A tiered fee system would require staff dedicated to income
verification and necessitate significant information system changes to
accommodate multiple fee scenarios for every form. The costs and
administrative burden associated with implementing such a system would
require additional overall fee revenue. As a result, DHS does not
support making the entire fee schedule contingent on income or cost of
living and DHS has made no changes in this final rule as a result of
these comments.
5. Reduction in USCIS Costs
A number of commenters recommended that USCIS reduce costs
internally instead of raising fees to fully recover costs. For
instance, some commenters stated that USCIS employees' salaries were
too high. No commenters proposed a methodology that DHS could use to
adjust the proposed fee schedule to account for unrealized cost
reductions.
USCIS is continually exploring opportunities to increase efficiency
and reduce unnecessary costs without negatively affecting the delivery
of benefits. Although USCIS will continue seeking out cost reductions,
and may incorporate the results of such cost reductions in future fee
reviews, DHS cannot set aside the need for full cost recovery
indefinitely. Accordingly, DHS made no changes in this final rule as a
result of these comments.
I. Dishonored Payments
In the NPRM, in a set of proposals separate and distinct from the
proposed fee schedule, DHS proposed to eliminate 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); 81 FR 26936; see also previous 8
CFR 103.2(a)(7)(ii), (a)(2); 8 CFR 103.17(b)(1). Instead, DHS proposed
that if a financial instrument used to pay a fee were returned as
unpayable after one re-presentment, USCIS would reject the filing and
impose a standard $30 charge. The purpose of the proposed change was to
reduce the USCIS administrative costs for holding and tracking
immigration benefit requests when the accompanying payment has already
been rejected.
DHS received several comments concerning these proposed changes.
Some commenters suggested that USCIS maintain the current procedure or
allow for several attempts to process a payment. These commenters noted
that some payment problems are due to circumstances beyond the filer's
control. These commenters stated that dishonored payments may result
from errors at a USCIS Lockbox facility or a temporary disruption to a
bank or Automated Clearing House (ACH) \73\ network. These commenters
also stated that the rejection of a benefit request can have serious
repercussions for the filer. Commenters asserted that a payment failure
may be especially disruptive if, for example, an underlying labor
certification application for Form I-140 is about to expire, a
derivative applicant is about to age out of eligibility, the priority
date for an application for adjustment of status is scheduled to
retrogress, or an applicant's current status will expire imminently and
the pendency and approval of the application would otherwise result in
an extension of status. These commenters stated that time-sensitive
immigration benefit requests could be delayed by months or years
because of the proposed changes. One commenter also noted that the
rejected filings may require over a month to be returned to filers.
---------------------------------------------------------------------------
\73\ The ACH Network is a nationwide electronic fund transfer
system that provides for the inter-bank clearing of electronic
credit and debit transactions and for the exchange of payment-
related information among participating financial institutions.
---------------------------------------------------------------------------
DHS agrees that ACH and bank network outages can sometimes result
in a rejection or delay payments for a few days.\74\ In the past, USCIS
has addressed the possibility of ACH and network outages by arranging
for the Department of the Treasury (Treasury) to automatically re-
present a rejected payment twice to see if it clears on the second or
third attempt before sending the filer the bill for the rejected
payment.\75\ Re-depositing a rejected
[[Page 73314]]
check, known as ``re-presentment,'' was not required by the
regulations, but USCIS arranged for Treasury to do this as a courtesy
to filers.\76\
---------------------------------------------------------------------------
\74\ Treasury notifies USCIS of the reasons the payment was
dishonored. Sometimes the reason is a lack of funds and sometimes
the reason is a system outage. DHS will apply the dishonored payment
provisions in this rule to all dishonored payments, regardless of
the reason provided by Treasury. DHS believes that the safeguards
described in the remainder of this section appropriately balance the
interests of applicants and beneficiaries, on the one hand, and
USCIS's interest in sound and efficient administration, on the
other.
\75\ USCIS implemented this internal policy in an effort to
reduce the number of bad checks under the assumption that the payor
may deposit funds during the intervening period and to preclude the
need for USCIS to hold the bad check case while the payor has 14
days to correct it.
\76\ DHS notes that the proposed rule's preamble erroneously
stated that ``DHS is proposing that USCIS will not begin processing
the benefit request until the payment has cleared.'' See 81 FR
26920. No provisions were proposed that would require USCIS to hold
cases. As in the past, USCIS strives to intake and begin processing
every benefit request as soon as practicable, without regard for
whether or not the payment has cleared.
---------------------------------------------------------------------------
To address the concerns raised by commenters that a dishonored
payment may be due to circumstances beyond the filer's control, DHS has
decided to continue this practice, and to codify it (with slight
revision) in this final rule. To make sure that a payment rejection is
the result of insufficient funds and not due to USCIS error or network
outages, USCIS (through Treasury) will re-submit rejected payment
instruments to the appropriate financial institution one time. See new
8 CFR 103.2(a)(7)(ii)(D).\77\ In effect, DHS will implement as a
regulatory requirement the current practice under which USCIS re-
presents rejected payments, but this rule will only require USCIS to
re-submit the payment once, not twice. USCIS estimates that this
change, based on its experience with how many days are required for
financial instruments to clear, will provide a total of approximately
10 days before Treasury notifies USCIS that the payment (including re-
presentment) has failed. The change codifies in regulation a practice
that reduces instances in which requests are erroneously rejected
because a bank erroneously rejects the relevant financial instrument.
---------------------------------------------------------------------------
\77\ This policy will not apply to credit card payments.
---------------------------------------------------------------------------
This final rule also corrects an oversight in the NPRM related to
how USCIS treats benefit requests that have already been approved when
the agency learns that the financial instrument used to pay the
associated fee is unpayable. Under current 8 CFR 103.2(a)(7)(ii), if
USCIS has approved a benefit request before the payment has cleared,
and the filer, having received notice of failed payment, fails to pay
the filing fee and associated service charge within 14 days, USCIS
automatically revokes the approval, or reopens and denies the request,
due to improper filing. See, e.g., previous 8 CFR 103.2(a)(1) (``Each
benefit request or other document must be filed with fee(s) as required
by regulation.''); 8 CFR 103.5(a)(5). As a result, a filer could not
retain an approved benefit if the financial instrument used to pay the
fee was subsequently returned as unpayable.\78\ Unfortunately, the
proposed rule erroneously omitted this existing regulatory authority,
see proposed 8 CFR 103.2(a)(7)(ii); 81 FR 26936, and also erroneously
failed to include conforming updates to a related provision, see
previous 8 CFR 205.1(a)(2) (providing for automatic revocation of
certain petitions ``[i]f the filing fee and associated service charge
are not paid within 14 days of the notification to the remitter that
his or her check or other financial instrument used to pay the filing
fee has been returned as not payable'').
---------------------------------------------------------------------------
\78\ In such a case, USCIS would either (1) revoke the approval
automatically, (2) send a notice of intent to revoke the approval,
or (3) reopen the approved case and deny it. See, e.g., 8 CFR
103.5(a)(5) (motion by Service officer); 205.1(a)(2) (automatic
revocation of immigrant petitions); 205.2 (revocation on notice);
214.2(h)(11)(iii)(A)(5), (l)(9)(iii)(A)(5), (o)(8)(iii)(A)(5),
(p)(10)(iii)(A)(5), (q)(9)(iii)(D) & (r)(18)(iii)(A)(5); 274a.14(b)
(revocation for erroneous approval); see also, e.g., 6 U.S.C. 112;
INA secs. 103, 204, 205, 214, 216, 216A, 244, 274A, and 286; 8
U.S.C. 1103, 1154, 1155, 1184, 1186a, 1186b, 1254a, 1324a, and 1356.
---------------------------------------------------------------------------
As the NPRM and this rule make clear, however, the ability of USCIS
to collect fees is a fundamental aspect of its ability to function.
USCIS must be able to continue requiring proper fee payments as a
condition of eligibility for immigration benefits. Individuals who file
a benefit request with a fee payment that is dishonored should,
therefore, have no expectation that they might benefit from early
processing of their filing.
Given that background, the only alternative to continuing to
provide for revocation would be for USCIS to hold each benefit request
until the financial instrument used to pay the fee has finally cleared
or been rejected. In the interest of administrative efficiency and
prompt processing of benefit requests, DHS has rejected that
alternative. Therefore, DHS has provided in this final rule that if a
remittance in payment of any fee submitted with a request is not
honored by the bank or financial institution on which it is drawn, and
the request was approved, USCIS will initiate revocation of the
approval by issuing a notice of intent to revoke (NOIR). See new 8 CFR
103.7(a)(2)(iii).\79\ The applicant, petitioner or requestor will be
provided an opportunity to respond to the NOIR with evidence that the
payment was honored and the revocation would be in error. To assuage
concerns about procedural safeguards in such a situation, USCIS has
decided to provide a notice in advance of the revocation in response to
public comments that stated that a mistake by USCIS or a contractor
could result in a dishonored payment. The applicant, petitioner or
requestor may not, however, pay the rejected fee in response to the
NOIR.
---------------------------------------------------------------------------
\79\ DHS considers an NOIR process to provide superior notice to
requestors, as compared to the automatic revocation provision in
previous 8 CFR 103.2(a)(7)(ii).
---------------------------------------------------------------------------
DHS emphasizes that this provision applies if any fee submitted
with a benefit request is returned as dishonored. If a benefit request
requires multiple fees, all fee instruments submitted with the request
must be honored by the remitting bank; if any one fee instrument is
dishonored after approval of the request, USCIS will revoke the
approval after notice and will retain any filing fees properly paid.
For instance, for the past five fiscal years, an average of 231
petitions per year were submitted with a Request for Premium Processing
Service, Form I-907, accompanied by a check that was dishonored by the
remitting bank. If a benefit approved under these circumstances is not
revoked, petitioners would have the perverse incentive to request
premium processing services in order to receive a swift approval,
knowing they would not suffer any consequences once the bank dishonors
the payment submitted for premium processing.\80\ If the bank dishonors
the Form I-907 payment after USCIS has approved the benefit request
underlying the Form I-907, USCIS may revoke the approval after notice
and, in that event, would retain the filing fees for the underlying
benefit.\81\
---------------------------------------------------------------------------
\80\ Currently, in the case of a request for premium processing,
if the Form I-907 check is returned for insufficient funds, USCIS
will process the case as a regular submission and will not revoke
the approval even if the Form I-907 check is never honored. Unless
DHS can also revoke the underlying petition, some premium processing
requesters will benefit from a swift adjudication for which they
have not paid.
\81\ Just as USCIS does not refund filing fees for a denied
benefit, USCIS will not refund filing fees for a revoked benefit.
After USCIS has fully adjudicated the request, it will have
performed the same amount of work and expended the same resources
for the adjudication that it would have expended if the case had
been approved or denied.
---------------------------------------------------------------------------
In short, USCIS is fee funded and it must be able to adjudicate
requests, including those which it has committed to approve in an
expedited manner, without concerns that the fee payment will be
declined. Accordingly, under this final rule, USCIS will intake the
benefit request, deposit the fee, and begin processing the filing. If
the payment is rejected, Treasury will re-present the payment
instrument on USCIS's behalf. If the payment is rejected on the second
try, Treasury will notify USCIS and USCIS, solely under
[[Page 73315]]
its own authority, will reject the filing for fee non-payment. If the
filing has been approved, USCIS will initiate revocation of the
approval. See id. The elimination of the 14-day waiting period will
reduce the need for special handling of cases involving a dishonored
payment. The requirement to re-present rejected payments will address
commenters' concerns about rejections that occur through no fault of
the filer. And the requirement to revoke an approved request if the
payment has ultimately been rejected will help ensure the integrity of
the benefits adjudication system.
J. Refunds
In the NPRM, DHS proposed a minor change in the provision regarding
USCIS fee refunds. See proposed 8 CFR 103.2(a)(1); 81 FR 26936. 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. However, USCIS will refund a fee if the
agency determines that an administrative error occurred resulting in
the incorrect collection of a fee. See 81 FR 26920-26921. DHS proposed
to revise 8 CFR 103.2(a)(1) to provide that fees are ``generally'' not
refunded. This would address concerns 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.
Some commenters stated that they supported the regulatory change to
clarify that USCIS does not generally allow refunds, but that a refund
may occur as a result of administrative error or unnecessary payment.
See 81 FR 26936. DHS has made no change based on these comments. DHS is
finalizing this provision as proposed.
K. Visa Allocation
Some commenters wrote that they generally opposed the fee increases
in the proposed rule due to long waits for immigrant visas. Although
these long waits are due to visa retrogression in oversubscribed
categories, some attributed it to USCIS processing inefficiencies and
questioned a fee hike in the face of such delays.\82\ Some commenters
stated that USCIS should be able to move visa priority dates forward if
fee increases are implemented.
---------------------------------------------------------------------------
\82\ Visa retrogression occurs when more people apply for a visa
in a particular category or country than there are visas available
for that month https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/visa-retrogression.
---------------------------------------------------------------------------
Significant improvements have been made in the visa coordination
process between DHS and the Department of State (DOS). In September
2015, DOS, in coordination with DHS, revised the procedures for
determining immigrant visa availability and authorization for issuance
for both employment-based and family-sponsored applicants for
adjustment of status in the United States. See Department of State Visa
Bulletin for October 2015.\83\ These revisions were made to better
align with DOS' immigrant visa overseas consular processing application
procedures and to enhance DOS' ability to better predict overall
immigrant visa demand and determine cut-off dates for visa issuance
published in the Visa Bulletin. Id.
---------------------------------------------------------------------------
\83\ Available at https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2016/visa-bulletin-for-october-2015.html.
---------------------------------------------------------------------------
DHS appreciates the concerns raised by individuals who may have
been affected by long visa waits and visa retrogression. However,
requests to make further revisions to the visa allocation process and
priority dates must be done in coordination with DOS and are outside
the scope of this rulemaking.
L. Credit Card Payments
Finally, some commenters criticized USCIS for not allowing credit
card payments for additional immigration benefit requests. USCIS
accepts credit card payments made in person at all domestic field
offices that accept payments.\84\ USCIS began allowing credit card
payments for paper-filed Applications for Naturalization, Forms N-400,
on September 19, 2015.\85\ Currently, this is the only immigration
benefit that can be paid for with a credit card when filed by mail.
USCIS also accepts credit card payments for immigration benefit
requests made through the electronic immigration system. DHS made no
changes in this final rule as a result of these comments. Nonetheless,
in the future, USCIS will allow credit cards payments for all
immigration benefit request fees when they are filed at a Lockbox
facility as soon as this capability can be made available.
---------------------------------------------------------------------------
\84\ See U.S. Citizenship and Immigration Services, Paying
Immigration Fees (7/7/2014), available at https://www.uscis.gov/forms/paying-immigration-fees.
\85\ See USCIS to Welcome More Than 36,000 Citizens During
Annual Constitution Day and Citizenship Day Celebrations (9/17/
2015), available at https://www.uscis.gov/news/news-releases/uscis-welcome-more-36000-citizens-during-annual-constitution-day-and-citizenship-day-celebrations.
---------------------------------------------------------------------------
V. Statutory and Regulatory Reviews
A. Regulatory Flexibility Act--Final Regulatory Flexibility Analysis
In accordance with the Regulatory Flexibility Act (RFA), 5 U.S.C.
601(6), DHS 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
will 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 benefits that DHS analyzed in the Initial Regulatory
Flexibility Analysis (IRFA) 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.\86\ Additionally, DHS has analyzed as
part of the following Final Regulatory Flexibility Analysis (FRFA)
requests related to genealogy information, Forms G-1041 and G-1041A,
and the Petition for Amerasian Widow(er) or Special Immigrant, Form I-
360, in response to public comment on the impact to small entities that
file these forms.
---------------------------------------------------------------------------
\86\ 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.
---------------------------------------------------------------------------
Following the review of available data, DHS does not believe that
the increase in fees in this final 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. DHS also does not have
sufficient data on the requestors that file genealogy forms to
determine whether such filings were made by entities or individuals,
[[Page 73316]]
and thus is unable to determine if the fee increase for genealogy
searches is likely to have a significant economic impact on a
substantial number of small entities. Finally, DHS has added in this
FRFA an analysis of the effects on small entities from the fee increase
for Form I-360 and does not believe that the increase in fees will have
a significant economic impact on these small entities. DHS is
publishing this FRFA to respond to public comments, and provide further
information on the likely impact of this rule on small entities.
1. A Statement of the Need for, and Objectives of, the Rule
DHS issues this final rule consistent with INA section 286(m),\87\
which authorizes 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,'' and the CFO
Act,\88\ which requires each agency's 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. DHS is adjusting the fee
schedule for DHS immigration and naturalization benefit applications
after conducting a comprehensive fee review for the FY 2016/2017
biennial period and determining that current fees do not recover the
full costs of services provided. DHS has determined that adjusting the
fee schedule is necessary to fully recover costs and maintain adequate
service.
---------------------------------------------------------------------------
\87\ See 8 U.S.C. 1356(m).
\88\ See 31 U.S.C. 901-03.
---------------------------------------------------------------------------
2. A Statement of the Significant Issues Raised by the Public Comments
in Response to the Initial Regulatory Flexibility Analysis, A Statement
of the Assessment of the Agency of Such Issues, and A Statement of Any
Changes Made in the Proposed Rule as a Result of Such Comments
DHS published the NPRM along with the IRFA on May 4, 2016 (81 FR
26903) with the comment period ending July 6, 2016. During the 60-day
comment period, DHS received 475 comments from interested individuals
and organizations. DHS received several comments that directly or
indirectly referred to aspects of the small entity analysis or IRFA
presented with the NPRM. The comments, however, did not result in any
major revisions to the small entity analysis in this final rule that
are relevant to the effects on small businesses, small organizations,
and small governmental jurisdictions presented in this FRFA. DHS
summarizes and responds to these comments in this Final Rule.
a. Comments on Form I-129
One commenter wrote about the 42-percent increase ($135) of the fee
for the Petition for a Nonimmigrant Worker, Form I-129. The commenter
explained that such a significant increase in visa fees for H-2A
category visas for temporary agricultural workers will negatively
affect the ability of both large and small farmers to use those visas
to ensure a sufficient and stable work force. Form I-129, which is used
to petition for H-2A workers, is often used by a large and an
increasing portion of small business employers according to this
commenter. The commenter discussed the impact this 42-percent increase
has on an employer hiring only one employee compared to an employer
hiring 100 employees. This commenter was especially concerned with the
impact of this rule on smaller farmers, many of whom petition for 1 to
5 workers, but whose farming operations could not continue without
these workers. This commenter also stated that the impact of the rule
on small entities was not quantitatively considered and/or disclosed.
Several other commenters wrote about the fee increase for Form I-
129 and its impact on small entities in terms of small traveling
musicians that cross over the border, particularly those along the
United States and Canadian border. The commenters stated that these
musicians routinely perform in small venues or small festivals and it
currently takes about 3 separate performances to recoup the expenses of
the current fee for Form I-129. The commenters stated that this
increase in fees presents considerable hardship for these small
performers and also compromises the ability to organize small tours
that would result in break-even revenues.
Other commenters also wrote about the increase for Form I-129 and
its impact on small religious orders and communities who petition for
foreign-born religious workers. The commenters stated that this
increase is particularly burdensome since extensions have to
continually be filed for work authorizations as well. They noted that
these added costs impact smaller parishes and lower-income
neighborhoods disproportionately. In addition to the fee increases for
Form I-129, these commenters also expressed similar concern for Forms
I-360 and I-485.
DHS respectfully disagrees with the commenter who stated that the
impact of the rule on small entities was not quantitatively considered
and/or disclosed. DHS used recent data to examine the direct impacts to
small entities for Forms I-129, I-140, I-910, and I-924. DHS prepared
an IRFA that complied with the Regulatory Flexibility Act (RFA) and
that was published with the NPRM. DHS also published a more
comprehensive small entity analysis of the potential impact of the Form
I-129 fee increase on www.regulations.gov in the docket for this rule
along with other supporting documentation. DHS has also added an
analysis of Forms G-1041, G-1041A, and I-360 in this FRFA in response
to public comments.
In terms of the range for Form I-129, among the 284 small entities
with reported revenue data identified in the small entity analysis, all
experienced an economic impact of considerably less than 1.0 percent of
revenue in the analysis, with the exception of two entities. Using the
methodology described in the comprehensive small entity analysis, the
greatest economic impact imposed by this fee change totaled 2.55
percent. This small entity with the highest economic impact imposed by
the fee increase is in the theater companies and dinner theaters
industry, which submitted 18 of the total 482,190 Form I-129 petitions
in the 12-month period analyzed. The small entity with the second
highest economic impact (2.05 percent) imposed by the fee increase is
in the custom computer programming services industry, which submitted
50 of the total 482,190 Form I-129 petitions. DHS notes that out of the
10 small entities that face the highest economic impact due to this fee
increase, a majority are in industries that are not related to
musicians, farmers, or religious organizations. Table 2 shows the
industry in which these top 10 impacted small entities belong, as well
as the number of petitions submitted by each entity.
[[Page 73317]]
Table 2--Form I-129 NAICS Industry of the Small Entities With the
Highest Economic Impact Imposed by the Fee Increase *
------------------------------------------------------------------------
Economic
impact on
Number of entity's
NAICS Industry petitions revenue
submitted imposed by fee
increase
(percent)
------------------------------------------------------------------------
Theater Companies and Dinner Theaters... 18 2.55
Custom Computer Programming Services.... 50 2.05
All Other Business Support Services..... 2 0.90
Dance Companies......................... 4 0.90
Other Scientific and Technical 7 0.53
Consulting Services....................
Computer Systems Design Services........ 2 0.46
All Other Business Support Services..... 1 0.45
Custom Computer Programming Services.... 3 0.37
All Other Business Support Services..... 2 0.34
All Other Business Support Services..... 2 0.34
------------------------------------------------------------------------
Source: DHS, USCIS, Office of Performance and Quality.
* North American Industry Classification System (NAICS).
DHS also analyzed the 284 small entities with reported revenue data
in our sample of Form I-129 petitions to see how many small entities
were specifically in NAICS codes related to musicians, farmers, or
religious organizations. Of these small entities, a total of 26 small
entities were found in one of these related NAICS, 3 of the small
entities were in the agricultural industry; 8 small entities were in
the performing arts, spectator sports, and related industries; and 15
small entities were religious organizations. Looking only at this
subset of 26 entities, only one small entity had an economic impact
above 1 percent with one other small entity just under 1 percent, both
of which were in the performing arts industries. The 24 other small
entities in these categories had economic impacts that were well below
1 percent. Twelve of these small entities had an economic impact
between 0.34 percent and 0.10 percent, while the remaining 12 small
entities had economic impacts below 0.10 percent. Therefore, while DHS
sympathizes with small farmers, small traveling musicians, and small
religious entities, the evidence suggests that the additional fee
imposed by this rule does not represent a significant economic impact
on most of these types of entities.
b. Comments on Forms I-360 and I-485
DHS also received comments about the impact of this rule on small
religious organizations who file on behalf of religious workers
utilizing Forms I-485 and I-360. Form I-485, Application to Register
Permanent Residence or Adjust Status, was not considered in this small
entity analysis because it is submitted by individuals seeking to
receive benefits, not entities. DHS selected forms that are filed by
entities for the small entity analysis in the NPRM. DHS recognizes,
however, that entities may also file the Petition for Amerasian,
Widow(er), or Special Immigrant, Form I-360, on behalf of a religious
worker and acknowledges it is appropriate to include Form I-360 in the
small entity analysis for the final rule.
The fee for Form I-360 will increase from $405 to $435, a $30 (7
percent) increase. DHS was able to obtain internal data on petitioners
who file Form I-360 for Special Immigrant Religious Workers provided by
the Office of Performance and Quality for this final rule. There were a
total of 4,399 religious foreign worker Form I-360 petitions submitted
in FY 2015 by 1,890 unique entities. Of these 1,890 unique entities,
approximately 96 percent were churches, mosques, synagogues, temples,
or other places of worship. Due to the overwhelming number of entities
that were places of worship and therefore, likely designated as non-
profit organizations, DHS assumed that all 1,890 entities are small.
Of the unique entities, about 51 percent of entities had submitted
just one petition in the FY 2015 (Table 3). Over 83 percent submitted
only one or two petitions. At the other end of scale, only about half a
percent of entities submitted more than 20 petitions. An average of 2.4
petitions per entity was submitted in FY 2015. Based on a $30 increase
in fees per petition for Form I-360, the average additional cost to
these entities is $72.\89\
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\89\ Calculation: 2.4 average petitions per entity x $30
increase in fees = $72 average additional cost to entities.
Table 3--Form I-360 Petitions per Entity
----------------------------------------------------------------------------------------------------------------
Percentage of Cumulative
Petitions per entity Entities total percentage
(percent) (percent)
----------------------------------------------------------------------------------------------------------------
1............................................................... 959 50.7 50.7
2............................................................... 617 32.6 83.3
3............................................................... 91 4.8 88.2
4............................................................... 78 4.1 92.3
5............................................................... 21 1.1 93.4
6 to 10......................................................... 87 4.6 98.0
11 to 20........................................................ 30 1.6 99.6
21 to 50........................................................ 5 0.3 99.9
[[Page 73318]]
51+............................................................. 2 0.1 100.0
-----------------------------------------------
Total....................................................... 1,890 100.0
----------------------------------------------------------------------------------------------------------------
Source: DHS, USCIS, Office of Performance and Quality.
DHS also analyzed the costs imposed by this rule on the petitioning
entities relative to the costs of the typical employee's salary.
Guidelines suggested by the Small Business Administration (SBA) Office
of Advocacy indicate that the impact of a rule could be significant if
the cost of the regulation exceeds 5 percent of the labor costs of the
entities in the sector.\90\ According to the Bureau of Labor Statistics
(BLS), the mean annual salary is $48,150 for clergy,\91\ $45,160 for
directors of religious activities and education,\92\ and $35,160 for
all other religious workers.\93\ Based on an average of 2.4 religious
workers petitioned-for per entity, the additional average annual cost
will be $72 per entity.\94\ Thus, the additional costs per entity
imposed by this rule represent only 0.15 percent of the average salary
for clergy, 0.16 percent of the average salary for directors of
religious of activities and education, and 0.20 percent of the average
salary for all other religious workers. Therefore, using average annual
labor cost guidelines, the additional regulatory compliance costs
imposed by this rule are not significant.
---------------------------------------------------------------------------
\90\ Office of Advocacy, Small Business Administration, ``A
Guide for Government Agencies, How to Comply with the Regulatory
Flexibility Act'': https://www.sba.gov/sites/default/files/rfaguide_0512_0.pdf.
\91\ Bureau of Labor Statistics, U.S. Department of Labor,
``Occupational Employment Statistics, May 2015, ``Clergy'': http://www.bls.gov/oes/current/oes212011.htm.
\92\ Bureau of Labor Statistics, U.S. Department of Labor,
``Occupational Employment Statistics, May 2015, ``Directors of
Religious Activities and Education'': http://www.bls.gov/oes/current/oes212021.htm.
\93\ Bureau of Labor Statistics, U.S. Department of Labor,
``Occupational Employment Statistics, May 2015, ``Religious Workers,
All Other'': http://www.bls.gov/oes/current/oes212099.htm.
\94\ Calculation: 2.4 average petitions per entity x $30 new
petition fee = $72 additional total cost per entity.
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c. Comments on Forms G-1041 and G-1041A
Several commenters also expressed concern about the impact the
proposed increase in fees related to genealogy searches would have on
individual businesses. The commenters stated that such large increases
in fees would be prohibitive to many individual genealogists that
submit requests. Some commenters suggested that the fee increase should
be phased-in over several years to help mitigate the impact of this
total cost increase.
DHS appreciates the comments on the impact this fee increase will
have on the individual businesses who request information from the
genealogy program. The fee for Genealogy Index Search Request, Form G-
1041, will increase from $20 to $65 (a 225 percent increase). The fee
for Genealogy Index Search Request, Form G-1041, will increase from $20
to $65 (a 225 percent increase). Currently there are two fees for the
Genealogy Records Request, Form G-1041A; the appropriate fee depends on
whether the filing requests copies from microfilm (currently $20) or
copies from textual records (currently $35). The new fee for Form G-
1041A will increase to $65, regardless of the type of media involved.
This represents a fee increase of 86 to 225 percent over current fee
levels.
Based on DHS records related to the genealogy program, an average
of 4,022 Index Search requests and 2,166 Records requests were made
annually over the 4 calendar year span from 2012 to 2015 (Table 4).
However, DHS does not have sufficient data on these requests to
determine whether they were submitted by entities or individuals.
Additionally, DHS cannot break out how many Genealogy Records Requests
are copies from microfilm or from textual records. The case management
tracking system used by DHS for these genealogy requests does not allow
for requestor data to be readily pulled, nor does it allow for a break
out in the Form G-1041A requests by record type.
Table 4--Genealogy Form Receipts
[Calendar Year]
----------------------------------------------------------------------------------------------------------------
Form Type 2012 2013 2014 2015 Average
----------------------------------------------------------------------------------------------------------------
Genealogy Index Search Request, 3361 3662 4167 4897 4022
Form G-1041....................
Genealogy Records Request, Form 2066 2219 2036 2344 2166
G-1041A........................
----------------------------------------------------------------------------------------------------------------
Source: DHS, USCIS, Immigration Records and Identity Services Directorate.
DHS has previously determined that requests for historical records
are usually made by individuals.\95\ If professional genealogists and
researchers submitted such requests in the past, they did not identify
themselves as commercial requesters and thus could not be segregated in
the data. Genealogists typically advise clients on how to submit their
own requests. For those that submit requests on behalf of clients, DHS
does not know the extent to which they can pass along the fee increases
to their individual clients. Therefore, DHS does not currently have
sufficient data to definitively assess the impact on small entities for
these requests.
---------------------------------------------------------------------------
\95\ See ``Establishment of a Genealogy Program; Proposed
Rule,'' 8 CFR 103, 299 (Apr. 20, 2006), available at https://www.regulations.gov/document?D=USCIS-2006-0013-0001.
---------------------------------------------------------------------------
DHS has decided to recover the full cost of the genealogy program
from the genealogy program fees. As previously stated in this final
rule, reducing the filing fee for any one benefit request submitted to
DHS simply transfers the additional cost to process this request to
other immigration and naturalization filing fees. Furthermore, DHS is
not able
[[Page 73319]]
to accommodate a phased-in approach of costs over several years due to
the statutory guidelines on how DHS is able to increase its fees.
d. Comments on Form I-924A
One commenter indicated that fees for the new Form I-924A would
create particular burdens on regional centers with less than 30
investors. The new fee for the annual filings of Supplement Form I-924A
is $3,035.
As discussed in the small entity analysis of this final rule, while
DHS cannot definitively claim that there is no significant economic
impact to these small entities based on existing information at the
time of this final rule, DHS would assume existing regional centers
that have revenues equal to or less than $303,500 per year \96\ (some
of which DHS assumes would be derived from administrative fees charged
to individual investors) could experience a significant economic impact
if DHS assumes a fee increase that represents 1 percent 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 \97\ could also experience a
significant impact.
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\96\ Calculation: 1 percent of $303,500 = $3,035 (the new
proposed fee for Form I-924A).
\97\ Calculation: 1 percent of $1,779,500 = $17,995 (the new
proposed fee for Form I-924).
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Searching through several public Web sites, DHS gathers that
administrative fees charged to investors could range between $30,000
and $100,000 per investor.\98\ 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.\99\ Assuming an average of 124 investors is a representative
proxy for 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, DHS
expects that 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.
---------------------------------------------------------------------------
\98\ 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/.
\99\ Department of Homeland Security, USCIS, Immigrant Investor
Program Office.
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DHS does not currently have information on how many regional
centers may have 30 or fewer investors. However, DHS expects that the
fee for the annual filing of Form I-924A is greater than 1 percent of
annual revenue for only those regional centers with 10 or fewer
investors.\100\ Regional centers with 11 or more investors are not
likely to experience a significant economic impact due to this rule.
While DHS cannot definitively state the number of regional centers that
have fewer than 10 investors, we do not believe it is a substantial
number of regional centers.
---------------------------------------------------------------------------
\100\ Assuming $30,000 administrative fee x 10 investors =
$300,000 regional center revenue.
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3. The Response of the Agency to Any Comments Filed by the Chief
Counsel for Advocacy of the Small Business Administration in Response
to the Proposed Rule, and a Detailed Statement of Any Change Made to
the Proposed Rule in the Final Rule as a Result of the Comments
No comments were filed by the Chief Counsel for Advocacy of SBA.
4. A Description of and an Estimate of the Number of Small Entities To
Which the Rule Will Apply or an Explanation of Why No Such Estimate is
Available
Entities affected by this final 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; Application for
Regional Center Designation Under the Immigrant Investor Program, Form
I-924; and Petition for Amerasian, Widow(er), or Special Immigrant,
Form I-360. 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), Form I-924 (412), and Form I-360 (1,890).
This rule applies to small entities including businesses, not-for-
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 affected industry codes). Of the total 444 small
entities in the sample for Form I-129, most entities were small
businesses (401), with 41 small not-for-profit entities and only 2
small governmental jurisdictions. Similarly, of the total 393 small
entities in the sample for Form I-140, most entities were small
businesses (364), with 26 small not-for-profit entities and 3 small
governmental jurisdictions. The fee for the Application for Civil
Surgeon Designation, Form I-910, will apply to physicians requesting
such designation. There were 322 small entities in the sample for Form
I-910, consisting of two small governmental jurisdictions and 320 small
entities that were either small businesses or small not-for-profits.
DHS was unable to further break down the composition of small entities
between small businesses and small not-for-profits due to difficulties
in determining the structure of these small entities. 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. The Form I-360 will apply
to any entity petitioning on behalf of a religious worker.
DHS does not have sufficient data on the requestors for the
genealogy forms, Forms G-1041 and G-1041A, to determine if entities or
individuals submitted these requests. DHS has previously determined
that requests for historical records are usually made by
individuals.\101\ If professional genealogists and researchers
submitted such requests in the past, they did not identify themselves
as commercial requesters and thus could not be segregated in the data.
Genealogists typically advise clients on how to submit their own
requests. For those that submit requests on behalf of clients, DHS does
not know the extent to which they can pass along the fee increases to
their individual clients. Therefore, DHS does not currently have
sufficient data to definitively assess the estimate of small entities
for these requests.
---------------------------------------------------------------------------
\101\ See ``Establishment of a Genealogy Program; Proposed
Rule,'' 8 CFR 103, 299 (Apr. 20, 2006), available at: https://www.regulations.gov/document?D=USCIS-2006-0013-0001.
---------------------------------------------------------------------------
a. Petition for a Nonimmigrant Worker, Form I-129
The fee for the Petition for a Nonimmigrant Worker, Form I-129,
will increase from $325 to $460, a $135 (42 percent) increase. DHS used
a 12-month period of data on filings of Form I-129 from September 1,
2014 to August 31, 2015, to collect 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
[[Page 73320]]
unique entities that filed those petitions. Since the filing statistics
do not contain information such as the revenue of the business, DHS
looked for this information by researching databases from third-party
sources. DHS 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 SBA size standards.
DHS 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, DHS used the standard statistical formula to determine a minimum
sample size of 382 entities was necessary. Based on past experience,
DHS expected to find about 40 to 50 percent of the filing organizations
in the online subscription and public databases. Accordingly, DHS
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, DHS
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 444 small entities, 287
of which were determined to be small entities based on their reported
revenue or employee count and their 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
entities searched, 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 entities searched were small
entities with the sales revenue data needed to estimate the economic
impact of the 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, DHS estimated the total costs associated with the
fee increase annually for each entity, divided by the annual sales
revenue of that entity.\102\ Based on the fee increase of $135 for Form
I-129, this will amount to an average impact of 0.08 percent on all 284
small entities with reported revenue data.
---------------------------------------------------------------------------
\102\ 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 two entities.
Using the above methodology, the greatest economic impact imposed by
this fee change totaled 2.55 percent 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
The fee for the Immigrant Petition for an Alien Worker, Form I-140,
will increase 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, DHS 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, DHS
used the third party sources of data mentioned previously to search for
revenue and employee count information.
DHS 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, DHS used the standard statistical formula to determine that a
minimum sample size of 378 entities was necessary. Again, based on past
experience, DHS expected to find about 40 to 50 percent of the filing
organizations in the online subscription and public databases.
Accordingly, DHS oversampled in order to allow for non-matches (filing
organizations that could not be found in any of the four databases).
DHS 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, DHS
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, DHS 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
entities searched, DHS 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 entities searched were small
entities with the sales revenue data needed to estimate the economic
impact of the 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 the analysis involving Form
I-129, DHS estimated the total costs associated with the Form I-140 fee
increase annually for each entity, divided by the annual 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, DHS analyzed any cumulative impacts to small entities
resulting from the fee increases to both Forms I-129 and I-140. DHS
isolated those entities that overlapped in both samples of Forms I-129
and I-140 by Employer Identification Number (EIN). Only three entities
had EINs that overlapped in both samples. Of these three entities, two
of them were small entities and one was not a small entity. Only one
entity submitted multiple Form I-129 petitions, while all three
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, DHS does not expect the
combined impact of these two forms to be an economically significant
burden on a substantial number of small entities.
[[Page 73321]]
c. Application for Civil Surgeon Designation, Form I-910
The fee for the Application for Civil Surgeon Designation, Form I-
910, will increase from $615 to $785, a $170 (28 percent) increase.
Using a 12-month period of August 1, 2014 to July 31, 2015, DHS
collected internal data on applicants of this form. There were 719 Form
I-910 applications, but only 602 unique entities that filed such
applications. Again, DHS used third party sources of data mentioned
previously to search for revenue and employee count information.
Using the same methodology employed with Forms I-129 and I-140, DHS
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. DHS determined
that a minimum sample size of 235 entities was necessary. DHS
oversampled and conducted searches on 329 randomly selected entities
for Form I-910.
The 329 searches for Form I-910 resulted in 252 instances in which
the name of the filing organization was successfully matched in the
databases and 77 instances in which the name of the filing organization
was not found in the databases. DHS assumed again that filing
organizations not found in the online databases are likely to be small
entities, so DHS 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),
DHS classified 322 of 329 entities as small for Form I-910.
With an aggregated total of 322 out of a sample size of 329
entities searched, DHS 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 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 the analysis involving Forms I-129 and I-140, DHS
estimated the total costs associated with the Form I-910 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,
Forms 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 LPR status 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 LPR status: 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 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 and real estate development
projects. As of July 15, 2016, there were 847 DHS-approved regional
centers.\103\ 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, on an annual basis 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.''
---------------------------------------------------------------------------
\103\ 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 is increasing 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
introduces a filing fee of $3,035 for Form I-924A. In establishing this
fee, DHS is also clarifying 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 DHS issuing a Notice of Intent to
Terminate and a subsequent termination notice. The withdrawal procedure
will allow a regional center to proactively request withdrawal without
the need for the more formal notices sent out by DHS. This procedure
will 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, DHS received a
total of 412 Form I-924 applications.\104\ These applications include
the request for newly designated regional centers, as well as requests
for continued designation for existing regional centers.
---------------------------------------------------------------------------
\104\ 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
are 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 DHS 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
[[Page 73322]]
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.\105\
DHS assumes administrative fees charged to investors are $30,000 per
investor for the purposes of this analysis. DHS does not know the
extent to which these regional centers can pass along fee increases to
individual investors. Passing along the costs from this rule could
reduce or eliminate the economic impacts to the regional centers. While
DHS cannot definitively state there is no significant economic impact
to these small entities based on existing information, DHS assumes
existing regional centers that have revenues equal to or less than
$303,500 per year \106\ (some of which we assume will be derived from
administrative fees charged to individual investors) could experience a
significant economic impact if we assume a fee increase that represents
1 percent 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 \107\ could also
experience a significant impact.
---------------------------------------------------------------------------
\105\ See 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/.
\106\ Calculation: 1 percent of $303,500 = $3,035 (the new fee
for Form I-924A).
\107\ Calculation: 1 percent of $1,779,500 = $17,995 (the new
fee for Form I-924).
---------------------------------------------------------------------------
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.\108\ 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 will represent approximately $3.7
million in revenue. In that case, DHS expects that the filing fee
increase for Form I-924 and the creation of a new fee for Form I-924A
will not cause a significant economic impact to these entities.
---------------------------------------------------------------------------
\108\ DHS, USCIS, Immigrant Investor Program Office.
---------------------------------------------------------------------------
e. Petition for Amerasian, Widow(er), or Special Immigrant, Form I-360
As previously described in this analysis, the fee for Form I-360
will increase from $405 to $435, a $30 (7 percent) increase. DHS was
able to obtain internal data for FY 2015 showing 1,890 unique entities
submitted 4,399 Form I-360 petitions for religious workers. Of these
1,890 unique entities, approximately 96 percent were churches, mosques,
synagogues, temples, or other places of worship, and DHS thus chose to
consider all 1,890 entities to be small entities. Most entities only
submitted 1 or 2 petitions. As previously described, DHS analysis
showed that the costs per entity imposed by this rule represent only
0.15 percent of the average salary for clergy; 0.16 percent of the
average salary for directors of religious of activities and education,
and 0.20 percent of the average salary for all other religious workers.
As all of these are under the 5 percent average annual labor cost SBA
guidelines, DHS determined that the additional regulatory costs imposed
by this rule are not significant.
5. A Description of the Projected Reporting, Recordkeeping and Other
Compliance Requirements of the Rule, Including an Estimate of the
Classes of Small Entities Which Will Be Subject to the Requirement and
the Type of Professional Skills Necessary for Preparation of the Report
or Record
This final rule imposes higher fees for filers of Forms I-129, I-
140, I-910, I-924, I-924A, and I-360. The new fee structure, as it
applies to the small entities outlined above, results in the following
fees: Form I-129 ($460), Form I-140 ($700), Form I-910 ($785), Form I-
924 ($17,795), Form I-924A ($3,035), and Form I-360 ($435). This final
rule does not require any new professional skills for reporting.
6. A Description of the Steps the Agency Has Taken To Minimize the
Significant Economic Impact on Small Entities Consistent With the
Stated Objectives of Applicable Statutes, Including a Statement of the
Factual, Policy, and Legal Reasons for Selecting the Alternative
Adopted in the Final Rule and Why Each One of the Other Significant
Alternatives to the Rule Considered by the Agency Which Affect the
Impact on Small Entities Was Rejected
The INA provides for the collection of fees at a level that will
ensure recovery of the full costs of providing adjudication and
naturalization services, including services provided without charge to
asylum applicants and certain other applicants. In addition, DHS must
fund the costs of providing services without charge by using a portion
of the filing fees collected for other immigration benefits. Without an
increase in fees, DHS will not be able to maintain the level of service
for immigration and naturalization benefits that it now provides. DHS
has considered the alternative of maintaining fees at the current level
with reduced services and increased processing times, but has
determined that this will not be in the interest of applicants and
petitioners. Therefore, this alternative was rejected.
While most immigration benefit fees apply to individuals, as
described previously, some also apply to small entities. DHS seeks to
minimize the impact on all parties, but in particular small entities.
Another alternative to the increased economic burden of the fee
adjustment is to maintain fees at their current level for small
entities. The strength of this alternative is that it assures that no
additional fee-burden is placed on small entities; however, small
entities will experience negative effects due to the service reductions
that will result in the absence of the fee adjustments in this final
rule.
Without the fee adjustments provided in this rule, significant
operational changes to DHS would be necessary. Given current filing
volume and other economic considerations, DHS 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.
B. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (UMRA) requires certain
actions to be taken before an agency promulgates any notice of
rulemaking ``that is likely to result in promulgation of any rule that
includes any Federal mandate that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year.\109\ While this rule may result in the
expenditure of more than $100 million by the private sector annually,
the rulemaking is not a ``Federal
[[Page 73323]]
mandate'' as defined for UMRA purposes,\110\ 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.\111\ Therefore, no actions
were deemed necessary under the provisions of the UMRA.
---------------------------------------------------------------------------
\109\ See 2 U.S.C. 1532(a).
\110\ See 2 U.S.C. 658(6).
\111\ See 2 U.S.C. 658(7)(A)(ii).
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C. Small Business Regulatory Enforcement Fairness Act
This rulemaking is a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rulemaking will
result in an annual effect on the economy of more than $100 million
(adjusted annually for inflation) in order to generate the revenue
necessary to fully fund all adjudication and naturalization services.
The increased costs will be recovered through the fees charged for
various immigration benefit requests. As small businesses may be
impacted under this regulation, DHS has prepared a RFA analysis.
D. Congressional Review Act
The Congressional Review Act \112\ requires rules to be submitted
to Congress before taking effect. DHS will submit a report regarding
the issuance of this final rule before its effective date, as required
by 5 U.S.C. 801 to Congress and the Comptroller General of the United
States. This rule is deemed a major rule and will therefore have a 60-
day delayed effective date.
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\112\ See 5 U.S.C. 801 et seq.
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E. Executive Orders 12866 and 13563 (Regulatory Planning and Review)
1. Background and Purpose of the Final 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 final rule has been designated an ``economically significant
regulatory action'' under section 3(f)(1) of Executive Order 12866.
Accordingly, OMB has reviewed this final rule.
DHS projects an annual budget of $3.038 billion in FY 2016/2017, a
$767 million (34 percent) increase over the FY 2010/FY 2011 fee review-
adjusted annual budget of $2.271 billion. This final rule is estimated
to provide DHS with an average of $546 million in 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 biometric services.\113\ DHS will 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.
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\113\ This estimate is based on FY 2016/FY 2017 fee study volume
projections.
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If DHS does not adjust the current fees to recover the full costs
of processing immigration benefit requests, it will be forced to make
reductions in services provided to applicants and petitioners. These
will reverse the considerable progress DHS has made over the last
several years to reduce the backlogs of immigration benefit filings, to
increase the integrity of the immigration benefit system, and to
protect national security and public safety. The revenue increase is
based on DHS costs and volume projections available at the time the
rule was drafted. DHS has placed in the rulemaking docket a detailed
analysis that explains the basis for the annual fee increase.
DHS has included an accounting statement detailing the annualized
impacts of the rule in Table 5 below. DHS makes a correction from the
NPRM by adding in the opportunity costs of time for filing Form I-942
as discussed later in this analysis. Thus, DHS notes the higher cost in
this final rule.
Table 5--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.
------------------------------------------------------------------------
Costs:
Quantified Costs........ $717,724............ $717,724
------------------------------------------------------------------------
Transfers:
Annualized Monetized 546,429,650......... 546,429,650
Transfers at 3 percent.
Annualized Monetized 546,429,650......... 546,429,650
Transfers at 7 percent.
------------------------------------------------------------------------
Category Effects Source
------------------------------------------------------------------------
Effects on State, local, and/ For those state, Final Rule,
or tribal governments. local, and/or Executive Order
tribal governments 12866/13563
that submit Analysis.
petitions for
nonimmigrant and
immigrant workers,
they will face an
increase in filing
fees.
Effects on small businesses. For those small Final Rule,
businesses that Executive Order
submit petitions 12866/13563
for nonimmigrant Analysis, Small
and immigrant Entity Analysis.
workers, they will
face an increase in
filing fees.
------------------------------------------------------------------------
[[Page 73324]]
2. Amendments and Impacts of Regulatory Change
This rule is intended to adjust current fees to ensure that DHS is
able to recover the full costs of the immigration services it provides
and maintain adequate service.\114\ In addition to increasing fees,
this final rule includes the following provisions: Provisions that DHS
will reject an immigration benefit request paid with a dishonored
check; provisions that DHS 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 DHS will provide fee refunds at its discretion.
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\114\ For comparison between current fees, USCIS estimates for
costs of underlying services, and changes to fees, see Appendix VI,
Table 4 in the supporting documentation.
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a. Dishonored Payments
This final rule changes how DHS will treat a benefit request filing
accompanied by fee payment (in the form of check or other financial
instrument) that is subsequently returned as not payable.\115\ 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.\116\ 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 payment.\117\ In accordance with
these current provisions, when a payment is returned as not payable,
DHS places the immigration benefit request on hold, and suspends
adjudication. If payment fails, DHS assesses a $30 penalty and pursues
the unpaid fee and penalty using administrative debt collection
procedures.\118\ If payment (the unpaid fee plus $30) is made within
the allotted 14 day time period, DHS resumes processing the benefit
request. If a payment is not corrected by the applicant, DHS rejects
the filing for nonpayment.\119\
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\115\ USCIS will 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
will occur when an attempt is made to process the payment through a
bank, but the bank does not honor the payment (e.g., because of
insufficient funds).
\116\ See 8 CFR 103.2(a)(7)(ii).
\117\ See 8 CFR 103.2(a)(7)(ii), 103.7(a)(2).
\118\ See 8 CFR 103.7(a)(2).
\119\ See 8 CFR 103.2(a)(7)(ii).
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In this final rule, DHS is eliminating provisions that require
USCIS to hold benefit request filings while deficient payments are
corrected. Under the amendment, if a check or other financial
instrument used to pay a filing fee is subsequently returned as not
payable, DHS will now reject the filing when Treasury notifies DHS that
the payment has failed; USCIS will no longer hold the filing and
provide 14 days for the deficient payment to be corrected.
To ensure that a payment rejection is the result of insufficient
funds and not due to ACH and bank network outages, DHS has made a minor
revision to the proposed amendment in the NPRM. Under the final rule,
DHS will submit all rejected payments to the applicant's bank two times
(once upon original deposit and once again if the original attempt to
deposit the payment is unsuccessful). Based on the typical time
required for a payment instrument to clear a financial institution,
this will allow approximately 5 additional days for payments to
clear.\120\ DHS estimates the new mandatory rejected payment re-
presentment requirement will therefore provide approximately 10 days
for payments to be corrected before DHS receives notification that the
payment has failed and rejects the filing or imposes the $30 returned
check fee.\121\
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\120\ See 8 CFR 103.2(a)(7)(ii)(D).
\121\ A commenter wrote that a fee payment may be submitted even
when the applicant knows the account lacks the funds to cover the
payment because a document is due to expire or a deadline is
approaching.
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Under the new process, DHS will continue to intake benefit
requests, attempt to deposit fees, and begin processing filings as soon
as possible.\122\ In cases where the payment is initially rejected,
Treasury will re-attempt to deposit the payment. However, if the
payment is rejected a second time, Treasury will notify DHS and DHS,
solely under its own authority, will reject the filing for non-payment
of the required fee. In such cases where the benefit request has
already been approved when DHS is notified of the failed payment, DHS
will send the approved applicant or petitioner a notice of intent to
revoke the approval. Regardless of the disposition of the benefit
request, if the payment to DHS is rejected, the remitter will be
charged a $30 returned check service charge.\123\ In order to estimate
the number of applicants who will make a payment that is ultimately
dishonored, DHS analyzed the count of all returned and subsequently
corrected payments of a credit card or check from fiscal years 2012 to
2015.\124\ In FY 2015, a total of 10,818 payments were returned (Table
6). Of those 10,818 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 the current service fee
of $30, the resulting total annual cost to applicants for returned
payments is $293,430.\125\
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\122\ USCIS will not store and hold any case. The adjudicator
will intake and begin processing every benefit request as soon as
practicable and will presume that all fee payments are valid. If the
payment is rejected (which could take 10-days to know) and the
adjudicator has not approved the request, Treasury will notify USCIS
of the rejected payment, and USCIS will collect the request package
and reject it. If the fees have been deposited and the benefit
request has not yet been adjudicated, USCIS will process a refund.
If the request is approved, USCIS may revoke after notice without a
refund.
\123\ See amended 8 CFR 103.7(a)(2).
\124\ Corrected payments include any payment collected by USCIS
after the return of an initial payment.
\125\ Calculation: 9,781 (average number of returned payments) x
$30 (current service fee charge) = $293,430 (total cost for returned
payments)).
Table 6--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
[[Page 73325]]
Average......................................................... 9,781 6,478 66.2
----------------------------------------------------------------------------------------------------------------
Source: Department of Homeland Security, Immigration and Customs Enforcement, Burlington Finance Center.
As stated previously, with the implementation of this final rule,
the regulations will no longer require DHS to hold benefit requests,
and applicants will no longer be allowed to correct payments directly.
Instead, all rejected payments will be re-presented to the relevant
financial institution a second time, which will allow approximately
another 5 days for it to clear.\126\ DHS' current policy is to re-
present a rejected payment twice to see if it clears on the second or
third attempt before sending the filer the bill for the rejected
payment. Under this final rule, Treasury will only re-present the
payment on one occasion to save time. The average 9,781 returned
payments (Table 6) will now be rejected unless the payments clear when
re-presented by Treasury. This re-presentation by Treasury has no
additional cost since Treasury currently includes this step in the
process to deposit DHS fee payments. DHS anticipates that the prospect
of rejection will encourage filers to provide the correct filing fees
at the time they submit their benefit requests. However, DHS recognizes
that there will continue to be filers who file benefit requests with
incorrect or deficient fees.
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\126\ See 8 CFR 103.2(a)(7)(ii)(D).
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For filers, filing fees are a required and fundamental aspect of
the benefit being requested. By providing a 14-day window to correct
dishonored payments, 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,
including in programs that are time sensitive or involve numerically
limited visas. In all cases, rejected filings may be refiled
immediately with the proper payment but there are some slight
differences depending on whether the submission is paper-based or
electronically filed. The DHS online filing system will permit the
rejected applications to remain accessible for the applicant to print
and view. The original rejected electronic submission will 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 when rejected and can generally be refiled with the proper
payment instrument.
The changes in this final rule will provide several benefits to
DHS. These changes lower DHS administrative costs for holding and
tracking benefit requests during the 14-day period currently provided
to correct dishonored payments. The holding and tracking of benefit
requests requires physical storage space that will no longer be
required with these revisions. DHS currently incurs administrative
costs through tracking payments in postage costs and adjudicator time
among other costs. This change in process also provides parity to those
individuals who file benefit requests with the correct fees,
particularly in programs that are time sensitive or involve numerically
limited visas.
DHS recognizes the unique impact that these changes may have in the
context of the H-1B program regulations, which make visa numbers
available to petitions in the order in which the petitions are
filed.\127\ The H-1B 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. DHS then conducts a random
selection among the petitions received during any of those 5 business
days, known as the ``H-1B lottery.'' Currently, petitions remain
eligible for the H-1B lottery despite having failed payments, as long
as the payments are corrected within the provided 14-day or 10-day
timeframe.\128\ Under the changes in this final rule, however, DHS will
remove petitions from the H-1B lottery as soon as DHS receives
notification of a failed payment, typically within 10 days of the
receipt date. DHS does not have data at this time to estimate the
impact on how many petitions may be affected by these changes. DHS is
also unable to monetize the cost to the applicant of having a petition
removed from selection for the H-1B lottery.
---------------------------------------------------------------------------
\127\ See 8 CFR 214.2(h)(8)(ii)(B).
\128\ See 8 CFR 103.2(a)(7)(ii).
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b. Failure To Pay the Biometric Services Fees
DHS is also eliminating provisions governing non-payment of the
biometric services fee in this final rule. Currently, if a benefit
request is received by DHS without the correct biometric services fee,
DHS will notify the filer of the deficiency and take no further action
on the benefit request until payment is received.\129\ Failure to
submit the correct biometric services fee within the time allotted in
the notice will result in denial of the benefit request. If the
required biometric services fee is missing, DHS suspends adjudication
and places the benefit request on hold. If payment is made within the
allotted time, DHS resumes processing the benefit request. If the
biometric services fee is not paid, the benefit request is denied as
abandoned.
---------------------------------------------------------------------------
\129\ See 8 CFR 103.17(b)(1).
---------------------------------------------------------------------------
Through this final rule, DHS is deleting the regulatory provisions
that permitted benefit requests to be held while deficient payments are
corrected. As a result of these deletions, DHS will reject a benefit
request if, for instance, it is received without the correct biometric
services fee, as specified in the form instructions.
In order to analyze the number of people who do not pay the correct
biometric services fee, DHS updated the numbers from the NPRM with more
recent data and gathered 7 months of data from DHS lockbox
facilities.\130\ The data covers the period from December 1, 2015 to
June 30, 2016. During this 7-month period, DHS lockbox facilities
accepted 2,624,825 benefit requests. Of these, a total of 6,179 (.24
percent) of filers were issued a notice alerting them that their
biometric services fees were missing. Assuming this 7-month trend is
typical of the number of deficient biometric services fee notices, the
new provision will affect less than 1 percent of all benefit requests
received at DHS lockbox facilities. As previously mentioned, rejected
filings may be refiled immediately. While filers do not incur monetary
costs (except for
[[Page 73326]]
additional postage fees) associated with the rejection of a benefit
request, reapplying for benefits with the correct fees requires time.
Again, DHS anticipates this new provision will encourage individuals to
file with the appropriate fees.
---------------------------------------------------------------------------
\130\ While USCIS prefers to base assumptions on a longer time
period (ideally 5 years), 7 months was the longest time period for
which this data was available.
---------------------------------------------------------------------------
Additionally, this change will streamline DHS' process for handling
benefit requests when biometrics services fees are not submitted when
required. DHS costs are reduced by eliminating the administrative
handling costs associated with holding cases while biometric services
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
services 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. DHS considers anyone
with a household income at or below 150 percent of the Federal Poverty
Guidelines to be eligible for a fee waiver. If DHS approves an
applicant's fee waiver, both the $595 Form N-400 fee and the $85
biometrics services fee, where applicable, are waived.
DHS will increase the Form N-400 fee from $595 to $640, a $45 (8
percent) increase in this final rule. The biometric services fee will
remain unchanged at $85. Therefore, the new costs of Form N-400 plus
the biometric services fee will total $725. DHS is introducing 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, applicants
will receive a 50 percent discount and only be required to pay a filing
fee of $320 for the N-400, plus an additional $85 biometric services
fee (for a total of $405). This reduced fee option is intended to limit
any potential economic disincentives that some eligible naturalization
applicants face when deciding whether or not to seek citizenship. The
lower fee will 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 the newly created Form I-942, Request for Reduced Fee, 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 in the NPRM, DHS 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, DHS expects that 90,365 filers will be included in the
population eligible for the fee reduction.\131\ While these 90,365
filers represent only the current number of applicants who will be
eligible for the fee reduction, DHS anticipates an increase in Form N-
400 filings as a result of the changes in this final rule. DHS
anticipates that the reduced fee for applicants with qualifying incomes
will remove economic barriers associated with the costs of associated
fees and thus encourage more eligible applicants to file their Form N-
400 applications. While DHS anticipates an increase in Form N-400
filings due to this fee reduction, we cannot predict how many more
eligible applicants will file their N-400 applications at this time.
---------------------------------------------------------------------------
\131\ Calculation: 821,500 * 11 percent.
---------------------------------------------------------------------------
DHS 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
facilitating access to citizenship outweighs the cost reallocation
impacts.
As previously mentioned, an eligible applicant will have to submit
a Form I-942 along with a Form N-400 application to qualify for this
reduced fee. While DHS is not imposing an additional fee for Form I-
942, DHS has estimated the opportunity cost of time to applicants to
complete the form. The total annual opportunity cost of time for
applicants will be $717,724, if all 90,365 eligible applicants apply
for the reduced fee.\132\ The Federal minimum wage rate \133\ of $7.25
was used as the hourly wage rate because the anticipated applicants are
asserting they cannot afford to pay the full DHS fee and DHS thus
assumes that such applicants earn less than average incomes. The BLS
reports the average employer costs for employee compensation for all
civilian workers in major occupational groups and industries. Using
these data from BLS, DHS calculated compensation-to-wage multiplier of
1.46 to estimate the full opportunity costs to applicants, including
employee wages, salaries, and the full costs of benefits, such as paid
leave, insurance, and retirement.\134\ 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 DHS with an average of 45 minutes (or .75 of an hour) to complete
Form I-942, resulting in an opportunity cost of time per petition of
$7.94.\135\ This additional burden is offset by the benefits received
from the $320 fee reduction.
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\132\ Total Opportunity Costs of Time to Applicants = Expected
Filers (90,365) * (Full Cost of Employee Benefits ($10.59) * Time
Burden (.75 hr.)).
\133\ U.S. Department of Labor, Wage and Hour Division. The
minimum wage in effect as of July 13, 2016. See http://www.dol.gov/general/topic/wages/minimumwage.
\134\ The compensation-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, BLS, 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.
\135\ Calculation: $10.59 hourly wage rate * .75 hours.
---------------------------------------------------------------------------
d. Refunds. DHS is also amending regulations for fee refunds in this
final rule. In general, and except for a premium processing fee under 8
CFR 103.7(e)(2)(i), DHS does not refund a fee regardless of the
decision on the immigration benefit request. DHS makes very rare
exceptions when DHS determines that an administrative error occurred
resulting in the inadvertent collection of a fee. DHS errors may
include:
Unnecessary filings. Cases in which DHS (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 DHS (or the DOS in the case of an immigration benefit
request filed overseas) erroneously accepts the erroneous fee.
DHS is codifying the process of continuing to provide these refunds
in cases involving obvious DHS error. Individuals will continue to
request a refund through the current established process, which
requires calling the customer service line or submitting a written
request for a refund to the office having jurisdiction over the
relevant immigration benefit request.
Any DHS refunds provided are generally due to obvious DHS errors
resulting from electronic system
[[Page 73327]]
behavior issues or human error. The anticipation of increased
electronic filings in the future also spurs the need for this
provision. Currently, DHS provides fee refunds to applicants as shown
in Table 7. Over the past 3 fiscal years, DHS issued an annual average
of 5,363 refunds, 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 total number of fees collected by
DHS across all benefits, this average amount of refunds is still less
than 1 percent of the total fees collected.
Table 7--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.
The changes in the final rule will benefit applicants who
accidently submit payments twice. DHS anticipates this to be a bigger
issue as more forms and associated fees begin to be collected through
electronic means. Applicants will recoup any fees that were submitted
erroneously due to electronic systems issues. DHS benefits by having
clear regulatory authority concerning the relatively few cases in which
refunds are provided.
There may be some administrative costs associated with the issuance
of refunds. DHS may see a potential initial increase in requests for
refunds due to the visibility of this rule; however, DHS does not
anticipate a sustained increase as DHS is not anticipating any changes
to the conditions for issuing refunds. There may also be a potential
increase in the time burden costs for DHS adjudicators to process these
potential initial increases in refund requests. DHS 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 filers who submit refund requests; however, DHS
anticipates this cost is offset by the benefit gained in receiving a
refund.
F. Executive Order 13132 (Federalism)
This rulemaking will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, DHS has determined that this rulemaking does
not have sufficient Federalism implications to warrant the preparation
of a federalism summary impact statement.
G. Executive Order 12988 (Civil Justice Reform)
This final rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
H. Family Assessment
DHS has determined that this rule will not affect family well-being
within the meaning of section 654 of the Treasury and General
Government Appropriations Act, 1999, Public Law 105-277, 112 Stat. 2681
(1998). By increasing immigration benefit request fees, this action
will impose a slightly higher financial burden on some families that
petition for family members to join them in the United States. On the
other hand, the rule will provide USCIS with the funds necessary to
carry out adjudication and naturalization services and provide similar
services for free to disadvantaged populations, including asylees,
refugees, individuals with Temporary Protected Status, and victims of
human trafficking. DHS has determined that the benefits of the action
justify the financial impact that it will place on some families.
I. Paperwork Reduction Act--Comments on the Proposed Information
Collection Changes
Under the Paperwork Reduction Act of 1995, all Departments are
required to submit to OMB, for review and approval, any reporting and
recordkeeping requirements inherent in a rule. See 44 U.S.C. 3507. This
final rule requires changes to OMB control number 1615-0052, the
Application for Naturalization, Form N-400, to collect information
necessary to document the applicant's eligibility for the reduced fee
proposed in this final rule at 8 CFR 103.7(b)(1)(i)(AAA)(1); OMB
control number 1615-0061, 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 OMB control number 1615-NEW,
Request for Reduced Fee, Form I-942, to document the applicant's
eligibility for the reduced fee. DHS specifically requested public
comments on the proposed changes to the forms and form instructions in
the NPRM in accordance with 5 CFR 1320.11(a). OMB reviewed the request
filed in connection with the NPRM and also filed comments in accordance
with 5 CFR 1320.11(c). DHS summarized the comments received from the
public and responded below:
1. Request for Reduced Fee, Form I-942
USCIS received some comments on the Request for Reduced Fee, Form
I-942, which was part of the NPRM docket. USCIS proposed to require
Form I-942 for an applicant to request the $320 reduced fee for the
Application for Naturalization. The comments indicated that the Form I-
942's sections related to preparer and interpreter certifications were
unnecessarily lengthy, as was the section for signatures of additional
family members. The comments stated that these sections make the form
appear longer and more onerous than it needs to be. The commenters also
recommended that the form be optional, similar to the optional Request
for Fee Waiver, Form I-912.
USCIS designed the Request for Reduced Fee to be very similar to
the Request for Fee Waiver. USCIS anticipates that preparers will
benefit from having similar forms with similar formats. Additionally,
USCIS does not believe that Form I-942 should be optional for reduced
fee requests in the same way that Form I-912 is optional. With respect
to Form I-912, USCIS recognizes that applicants may be able to address
certain criteria, such as financial hardship, in a letter more
[[Page 73328]]
easily than through a form. However, the proposed sole basis for
submitting a Request for Reduced Fee is the applicant's household
income level. See 81 FR 26916. To qualify for the reduced fee, an
applicant's household income must be greater than 150 and not more than
200 percent of the Federal Poverty Guidelines. Id. USCIS believes that
such income information is more easily conveyed to the agency, and
accessed by the agency, if it is presented in a uniform manner through
a form, rather than through a letter. To provide additional flexibility
to reduced fee applicants, USCIS has also decided to permit multiple
family members living in the same household who are each submitting an
Application for Naturalization, and who are each within the relevant
income levels for the reduced fee, to jointly submit one Form I-942
with their naturalization applications.\136\ USCIS determined that
permitting multiple requests on one form would impose less of a burden
overall than requiring multiple members of the same household to file
separate reduced fee requests. As a result of these comments, DHS
changed the form to permit multiple family members to file on Form I-
942 with respect to multiple naturalization applications.
---------------------------------------------------------------------------
\136\ In such cases, each family member who is requesting a
reduced fee for their Application for Naturalization must sign the
Form I-942. Applicants must submit the Form I-942 in the same
envelope as the naturalization applications for which they are
requesting fee waivers.
---------------------------------------------------------------------------
2. Annual Certification of Regional Center, Form I-924A
At least one commenter recommended standardizing the questions for
Form I-924A and indicated that the form provides little to no value to
USCIS. USCIS believes the revised form and instructions better explain
the annual reporting process and requirements, and provide more useful
information to USCIS, than the previous version of the form. In
addition, USCIS believes the revised forms address the commenter's
concerns by eliminating many redundant and lengthy questions and
instructions. While the form contains new questions, it is intended to
result in more comprehensive reviews and to require fewer and simpler
follow-up inquiries from USCIS in response to annual I-924A filings.
DHS made no changes to the draft form or the proposed rule as a result
of these comments. The form and fee are finalized as proposed. New CFR
204.6(m).
List of Subjects
8 CFR Part 103
Administrative practice and procedures, Authority delegations
(government agencies), Freedom of Information, Privacy, Reporting and
recordkeeping requirements, and Surety bonds.
8 CFR Part 204
Administrative practice and procedure, Immigration, Reporting and
recordkeeping requirements.
8 CFR Part 205
Administrative practice and procedure, Immigration.
Accordingly, DHS amends 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); 6 U.S.C. 112, 8 U.S.C.
1101, 1103, 1154, 1155, 1185, 1186a, 1186b, 1254a, 1304, 1324a,
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 check or other
financial instrument used to pay a fee is returned as unpayable, USCIS
will re-submit the payment to the remitter institution one time. If the
instrument used to pay a fee is returned as unpayable a second time,
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 biometric collection. USCIS
may require the payment of the biometric 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 may, before 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. If a remittance in payment of a fee or any
[[Page 73329]]
other matter is not honored by the bank or financial institution on
which it is drawn:
(i) A charge of $30.00 will be imposed;
(ii) 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; and
(iii) If the benefit request was approved, the approval may be
revoked upon notice. If the approved benefit request requires multiple
fees, this provision will apply if any fee submitted is not honored.
Other fees that were paid for a benefit request that is revoked under
this provision will be retained and not refunded. A revocation of an
approval because the fee submitted is not honored may be appealed to
the USCIS Administrative Appeals Office, in accordance with 8 CFR 103.3
and the applicable form instructions.
(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 services 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 services 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 services 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 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
[[Page 73330]]
the United States Government: $930. If filed with and processed by CBP:
$585.
(Q) Application for Waiver for Passport and/or Visa, Form I-193.
For filing an application for waiver of passport and/or visa: $585.
(R) Application for Permission to Reapply for Admission into the
United States After Deportation or Removal, Form I-212. For filing an
application for permission to reapply for an excluded, deported or
removed alien, an alien who has fallen into distress, an alien who has
been removed as an alien enemy, or an alien who has been removed at
government expense 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 who submits the
application concurrently with the Form I-485 of a 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.
(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,
[[Page 73331]]
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. $1,225.
The Request for Premium Processing Service fee:
(1) Must be paid in addition to, and in a separate remittance from,
other filing fees.
(2) May be adjusted annually by notice in the Federal Register
based on inflation according to the Consumer Price Index (CPI).
(3) 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 percent and not more than 200 percent 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. For filing certain H-1B petitions as described in 8 CFR
214.2(h)(19) and USCIS form instructions: $1,500 or $750.
(HHH) Fraud detection and prevention fee. For filing certain H-1B
and L petitions, and $150 for H-2B petitions as described in 8 CFR
214.2(h)(19): $500.
(III) 9-11 Response and Biometric Entry-Exit Fee for H-1B Visa. 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: $4,000. 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. 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: $4,500. 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
[[Page 73332]]
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 services 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)(XX).
(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.
* * * * *
PART 205--REVOCATION OF APPROVAL OF PETITIONS
0
9. The authority citation for part 205 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1155, 1182,
and 1186a.
0
10. Section 205.1 is amended by removing and reserving paragraph
(a)(2).
Sec. 205.1 Automatic revocation.
(a) * * *
(2) [Reserved]
* * * * *
Jeh Charles Johnson,
Secretary.
[FR Doc. 2016-25328 Filed 10-21-16; 8:45 am]
BILLING CODE 4410-10-P