[Federal Register Volume 86, Number 247 (Wednesday, December 29, 2021)]
[Proposed Rules]
[Pages 74018-74024]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-28010]


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DEPARTMENT OF STATE

22 CFR Part 22

[Public Notice: 11482]
RIN 1400-AF33


Schedule of Fees for Consular Services--Nonimmigrant and Special 
Visa Fees

AGENCY: Department of State.

ACTION: Proposed rule.

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SUMMARY: The Department of State (Department) proposes adjustments to 
the Schedule of Fees for Consular Services (Schedule of Fees) of the 
Bureau of Consular Affairs (CA) for several nonimmigrant visa (NIV) 
application processing fees, the Border Crossing Card (BCC) for Mexican 
citizens age 15 and over, and the waiver of the two-year residency 
requirement (J-Waiver) fee. The proposed changes are based on the 
findings of the most recently approved update to the Cost of Service 
Model (CoSM). They ensure that the fees for providing these consular 
services better align with the costs of providing the services.

DATES: The Department of State will accept comments until February 28, 
2022.

ADDRESSES: Interested parties may submit comments to the Department by 
any of the following methods:
     Visit the Regulations.gov website at: http://www.regulations.gov and search for the Regulatory Information Number 
(RIN) 1400-AF33 or docket number DOS-2021-0019.
     Email: [email protected]. You must include the RIN (1400-
AF33) in the subject line of your message.
     All comments should include the commenter's name, the 
organization the commenter represents (if applicable), and the 
commenter's address. If the Department is unable to read your comment 
for any reason, and cannot contact you for clarification, the 
Department may not be able to consider your comment. After the 
conclusion of the comment period, the Department will publish a Final 
Rule that will address relevant comments as expeditiously as possible.
    During the comment period, the public may request an appointment to 
review CoSM data on site if certain conditions are met.\1\ To request 
an appointment, please call 202-485-8915

[[Page 74019]]

and leave a message with your contact information.
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    \1\ Members of the public meeting the conditions would be 
permitted to see high-level information, including total cost, total 
volume, and unit costs.

FOR FURTHER INFORMATION CONTACT: Johanna Cruz, Management Analyst, 
Office of the Comptroller, Bureau of Consular Affairs, Department of 
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State; phone: 202-485-8915, email: [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    The proposed rule makes changes to the Schedule of Fees in 22 CFR 
22.1. The Department generally sets and collects fees for consular 
services based on the concept of full cost recovery to the U.S. 
government. The Department's CoSM uses an Activity-Based Costing (ABC) 
methodology to calculate annually the direct and indirect costs to the 
U.S. government associated with each consular good and service the 
Department provides. The fees are based on these cost estimates and the 
Department aims to update the Schedule of Fees biennially unless a 
significant change in costs warrants an immediate recommendation to 
amend the Schedule. The Department proposes these fee changes based on 
the results of the most recently approved update to the CoSM, which 
indicates that the increases are needed to fully recover the costs of 
providing these services. Specifically, the Department is incurring 
additional costs attributable to several NIV application processing 
fees, the adult BCC fee, and the J-Waiver fee that are not reflected in 
the current fees. To recover the costs of providing these specific 
consular services, the Department utilized a 10-year demand average to 
calculate the proposed fees. This was done to reduce the short-term 
volatility of demand because of the COVID-19 pandemic and stabilize 
price points for a longer duration of time.

What is the authority for this action?

    The Department of State derives the general authority to set and 
collect fees for consular services it provides from the user charges 
statute, 31 U.S.C. 9701. See, e.g. , 31 U.S.C. 9701(b)(2)(A) (``The 
head of each agency . . . may prescribe regulations establishing the 
charge for a service or thing of value provided by the agency . . . 
based on . . . the costs to the government.''). As implemented through 
Executive Order 10718 of June 27, 1957, 22 U.S.C. 4219 further 
authorizes the Department to establish fees to be charged for official 
services provided by U.S. embassies and consulates.
    Several statutes address specific fees relating to nonimmigrant 
visas. For instance, Sec. 140(a) of Public Law 103-236, 108 Stat. 382, 
as amended, reproduced at 8 U.S.C. 1351 (note), establishes a cost-
based application processing fee for nonimmigrant machine-readable 
visas (MRV) and BCCs. See also 8 U.S.C. 1713(b). Additionally, Sec. 501 
of Public Law 110-293, Title V, 122 Stat. 2968, reproduced at 8 U.S.C. 
1351 (note), requires the Secretary of State to collect an additional 
$2 surcharge (the ``HIV/AIDS/TB/Malaria surcharge'') on all MRVs and 
BCCs as part of the application processing fee; this surcharge must be 
deposited into the Treasury and goes to support programs to combat HIV/
AIDS, tuberculosis, and malaria. Furthermore, 8 U.S.C. 1351 establishes 
a reciprocal NIV issuance fee, requiring that the fee charged an 
applicant from a foreign country for issuance of an NIV be based, 
insofar as practicable, on the amount of visa or other similar fees 
charged to U.S. nationals by that foreign country.
    Some people are exempted by law or regulation from paying specific 
fees. For example, certain individuals who engage in charitable 
activities or who qualify for diplomatic visas are exempt from the NIV 
application processing fee. See 8 U.S.C. 1351; 22 CFR 41.107(c). 
Exemptions are included in the Schedule of Fees.
    Various statutes permit the Department to retain some of the fee 
revenue it collects, rather than depositing it into the general fund of 
the Treasury. As relevant, the Department retains the MRV and BCC 
processing fees, see Public Law 103-236, Title I, Sec. 140(a)(2), 112 
Stat. 2681-50, reproduced at 8 U.S.C. 1351 (note) and 8 U.S.C. 1713(d), 
as well as the J-Waiver fee, see 22 U.S.C. 1475e.
    The Department last adjusted certain NIV fees and the J-Waiver fee 
as part of an interim final rule dated August 28, 2014, and those 
changes to the Schedule of Fees went into effect September 6, 2014 (79 
FR 51247). A final rule regarding those fees was published on August 
25, 2015 (80 FR 51464). The fees for non-petition-based NIVs (except E 
category) and other petition-based NIVs (H, L, O, P, Q, and R category 
NIVs), have not been updated since April 13, 2012 (77 FR 18907). A 
final rule adjusting these fees was published on September 17, 2012 (FR 
57012). Non-petition-based NIVs constitute a significant majority of 
the overall NIV applications.

Why is the Department adjusting fees at this time?

    As a general policy, each recipient should pay a reasonable user 
charge for government services, resources, or goods from which he or 
she derives a special benefit, at an amount sufficient for the U.S. 
Government to recover the full costs of providing the service, 
resource, or good. See 31 U.S.C. 9701; OMB Circular No. A-25, sec. 
6(a)(2)(a). In accordance with this policy, the Department typically 
sets consular fees at an amount calculated to achieve full recovery of 
the costs to the U.S. government of providing the service, unless an 
exception applies. See, e.g. , 8 U.S.C. 1351 (noting that NIV 
reciprocity fees should be set in amounts corresponding to the total 
charges levied against nationals of the United States by foreign 
countries). In the case of the MRV fee, the Department is statutorily 
required to set the fee at cost if the actual cost is higher than $65. 
See 8 U.S.C. 1713(b).
    The Department reviews consular fees periodically, including 
through the annual update to its CoSM, to determine each fee's 
appropriateness in light of the OMB guidance. The results of the most 
recent update form the basis of the changes proposed in this rule. The 
proposed fees have been rounded up to the nearest $5 consistent with 
accepted government fee setting practices, to account for and mitigate 
against the risk of exchange rate fluctuations.

Activity-Based Costing

    To set fees to ensure full cost recovery, the Department must 
determine the true cost to the U.S. government of providing each 
consular service. Following guidance provided in ``Managerial Cost 
Accounting Concepts and Standards for the Federal Government,'' OMB's 
Statement #4 of Federal Accounting Standards (SFFAS #4), available at 
http://www.fasab.gov/pdffiles/sffas-4.pdf, the Department chose to 
develop its CoSM using an ABC methodology to determine the true cost of 
each consular service.
    The Government Accountability Office (GAO) defines ABC as a ``set 
of accounting methods used to identify and describe costs and required 
resources for activities within processes.'' Organizations can use the 
same staff and resources (computer equipment, production facilities, 
etc.) to produce multiple products or services; therefore, ABC models 
seek to identify and assign costs to processes and activities and then 
to individual products and services through the identification of key 
cost drivers referred to as ``resource drivers'' and ``activity 
drivers.'' The goal is to proportionally and accurately distribute 
costs. ABC models require financial and accounting analysis and 
modeling skills combined with a detailed understanding

[[Page 74020]]

of an organization's business processes. SFFAS #4 provides a detailed 
discussion of the use of cost accounting by the U.S. government.
    The ABC approach focuses on the activities required to produce a 
particular service or product and uses resource drivers to assign costs 
through activities to services. Resource drivers assign the 
organization's costs (resources including materials, supplies and labor 
utilized in the production or delivery of services and products) to 
activities using business rules that reflect the operational reality of 
CA and the data available from consular systems, surveys, and internal 
records. Most resource drivers are based on time spent on each 
activity. For example, the Consular Overseas Data Collection (CODaC) 
survey captures how different categories of consular staff spend their 
time on consular work performed overseas. The information collected 
through the CODaC is used to populate the CODaC resource driver, which 
is a model input for time spent on specific activities for several 
different consular employee types and assigned to different categories 
of NIVs. Activity drivers differentiate levels of effort associated 
with activities (the work performed by the organization such as 
adjudication, printing of visa foils, and performing data intake, etc.) 
that are applied to each cost object and are often volume driven. For 
example, the cost of printing NIV visa foils is assigned to the 
different categories of NIVs based on the total number of NIVs issued 
for each NIV type.
    Here is an example: Imagine a government agency that has a single 
facility it uses to prepare and issue a single product--a driver's 
license. In this simple scenario, every cost associated with that 
facility (the salaries of employees, the electricity to power the 
computer terminals, the cost of a blank driver's license, etc.) can be 
attributed directly to the cost of producing that single item. If that 
agency wants to ensure that it is charging a ``self-sustaining'' price 
for driver's licenses, it only has to divide its total costs for a 
given time period by an estimate of the number of driver's licenses to 
be produced during that same time period. However, if that agency 
issues multiple products (driver's licenses, non-driver ID cards, 
etc.), has employees that work on other activities besides licenses 
(for example, accepting payment for traffic tickets), and operates out 
of multiple facilities it shares with other agencies, it becomes much 
more complex for the agency to determine exactly how much it costs to 
produce any single product. In those instances, the agency would need 
to know what percent of time its employees spend on each service and 
how much of its overhead (rent, utilities, facilities maintenance, 
etc.) can be allocated to the delivery of each service to determine the 
cost of producing each of its various products--the driver's license, 
the non-driver ID card, etc. Using an ABC model allows the agency to 
develop those cost estimates.

The Cost of Service Model (CoSM)

    The Department has been conducting periodic cost of service studies 
using an ABC methodology to determine the costs of its consular 
services since 2009. In 2010, the Department moved to adopt an annually 
updated CoSM that measures all of its consular operations and costs, 
including all of the activities needed to provide consular services. 
The CoSM provides a comprehensive and detailed look at all consular 
services as well as all services that the Department performs for other 
agencies in connection with its consular operations. The CoSM now 
includes approximately 112 distinct activities and enables the 
Department to model its consular-related costs with a higher degree of 
precision.
    The Department continues to refine and improve the CoSM annually in 
order to achieve full cost recovery for the U.S. government. Because 
the CoSM is a complex series of iterative computer processes 
incorporating more than a million calculations, it is not reducible to 
a tangible form such as a document. Inputs are formatted in 
spreadsheets for entry into the ABC software package, which is an 
industry standard commercial off-the-shelf product licensed through SAP 
Business Objects. The software's output includes spreadsheets with raw 
unit costs, validation reports, and management reports.
    The Department uses three methods outlined in SFFAS Statement #4 
(paragraph 149(2)) to assign resource costs to activities in the model: 
(a) Direct tracing; (b) assigning costs through estimation based on 
surveys, interviews, or statistical sampling; and (c) allocations. The 
Department uses direct tracing to assign the cost of, for example, a 
physical passport book or the visa foil placed in a visa applicant's 
passport, to the passport or visa service respectively. Assigning costs 
to activities such as adjudicating a visa application requires 
estimation based on surveys, interviews, or statistical sampling to 
determine who performs an activity and how long it takes (see below for 
additional details regarding assigning labor costs).
    Indirect costs (overhead) are allocated according to the level of 
effort needed for a particular activity. Level of effort captures the 
time spent on an activity in minutes, hours, or number of full-time 
equivalent (FTE) employees, as measured in the CODaC and domestic task 
reports. Where possible, the model uses overhead cost pools to assign 
indirect costs only to related activities. For instance, the cost of 
rent for domestic visa offices is assigned only to visas, not to 
passports or other services the Department provides overseas. The 
Department allocates indirect support costs to each consular activity 
by the level of effort needed by that consular activity. For example, 
the model allocates a portion of the cost of the Department's Bureau of 
Global Talent Management (formerly known as the Bureau of Human 
Resources) to consular activities as this Bureau supports CA by 
providing onboarding and administrative support for domestic and 
overseas consular employees, including support for permanent change of 
station (PCS) requirements for all consular personnel that ensures 
timely deployment of personnel, families, and personal effects.
    To assign labor costs, the Department relies on a variety of 
industry-standard estimation methodologies. To document how consular 
staff divide their time overseas, the Department conducts CODaC surveys 
at a representative sample of consular sections overseas each year. In 
response to the survey, consular officers indicate how much time is 
spent on particular consular activities overseas, such as data intake 
and review, interview and adjudication, and passback activities. The 
Department uses survey data from over 200 consular sections in 
consulates and embassies worldwide in conjunction with volume data from 
various consular workload systems to develop resource drivers to assign 
labor costs to activities. For consular activities that take place in 
the United States, the Department collects volume data from periodic 
workload reports provided by the directorates managing these consular 
services. Financial information is gathered from reports in the 
Department's Global Financial Management System (GFMS) managed by the 
Bureau of the Comptroller and Global Financial Services (CGFS). The 
Department converts the cost and workload data into resource drivers 
and activity drivers for each resource and activity.
    The CoSM uses historical workloads (i.e. , demand for the service) 
as well as projected workloads, which are based

[[Page 74021]]

on demand projections produced by CA, to estimate the costs of 
providing consular services. The current model update relied on FY 2019 
actual costs and level of effort (i.e. , time spent on a specific 
activity) data, and applied a 10-year average for workload volumes, 
using historic workload actuals from FYs 2015-2019 and projected 
workload volumes for FYs 2020-2024. Unit costs for each NIV service are 
calculated by taking the total calculated costs for the particular 
service and dividing that cost by the total 10-year average volumes for 
each particular service. Using a 10-year average of volumes for NIV 
services reduces the impact of volatility in demand resulting from 
COVID-19 on the model results, given that the significant reduction in 
NIV demand resulting from the COVID-19 pandemic is expected to continue 
for the next few years. Over time, use of a 10-year average is expected 
to result in full cost recovery once the fee is updated, provided the 
demand projections used to calculate this average are mostly in line 
with actual demand during this period and costs remain relatively 
stable.

Proposed Visa Fee Changes: Nonimmigrant Visa Services

Nonimmigrant Visa Application and Border Crossing Card Processing Fees

    The Department proposes to increase the non-petition based NIV fee 
from $160 to $245 per application. Non-petition-based NIVs include a 
variety of nonimmigrant visas, such as those for business and tourist 
travel (B1/B2); students and exchange visitors (F, M, and J); crew and 
transit visas (C and D); representatives of foreign media (I), and 
other country-specific visa classes, as well as BCCs for applicants age 
15 or older who are citizens of and resident in Mexico. ``Non-
petition'' means that these visas do not require separate requests 
known as ``petitions'' to be adjudicated prior to the visa application 
to establish that the individual meets certain qualifying criteria for 
the relevant status (e.g. , that the beneficiary of the petition has 
the relevant familial relationship to the petitioner). Non-petition 
based NIVs make up nearly 90 percent of all NIV workload.
    The Department also proposes to increase fees for all petition 
based NIVs related to employment in the United States from $190 to 
$310. Petition-based NIVs include categories for temporary workers and 
trainees (H); intracompany transferees (L); aliens of extraordinary 
ability (O); athletes, artists, and entertainers (P); international 
cultural exchange participants (Q); and religious workers (R). These 
NIVs require an approved petition from U.S. Citizenship and Immigration 
Services (USCIS) prior to applying for a visa and demand significantly 
more work by the consular officer than non-petition based NIVs.
    The Department last updated the non-petition-based and the 
petition-based NIV fees noted above through rulemaking in 2012, based 
on the results of the 2011 CoSM. Costs have increased modestly for non-
petition based NIVs each year since 2012, an increase of 1.9 percent 
per year since the fee was last adjusted. Compensation costs for these 
services have decreased and non-compensation costs have increased. 
Compensation costs include the salary, benefits, and costs associated 
with direct-hire full-time domestic and overseas employees including 
Foreign Service Officers (FSOs), Locally Employed (LE) staff, Eligible 
Family Members (EFMs), Consular Agents, and Civil Service employees. 
Non-compensation costs include operating costs like rent, technology 
costs, contract costs (including contract staff costs, and large 
support contracts like the Global Support Strategy (GSS) contract), 
materials (e.g., visa foils) and International Cooperative 
Administrative Support Services (ICASS) costs. The changes to these 
categories of costs are largely due to a shift from FSO and LE staff 
overseas to GSS contract staff spending time on activities associated 
with this service. GSS provides support services for nonimmigrant and 
immigrant visa operations at United States consulates and embassies 
abroad, including but not limited to public inquiry services, 
appointment services, fee collection services, biometric enrollment 
services, document delivery services, and data collection services.
    Costs have increased slightly for petition-based categories since 
the last fee updates, from $149 million to $175 million, a 1.6 percent 
increase per year since the fee was last adjusted. As with non-petition 
based NIVs, compensation costs for these services have decreased and 
non-compensation costs have increased, largely the result of the shift 
of certain support activities to the GSS contract as noted above. The 
expansion of the GSS contract helped reduce time spent by consular 
officers on non-adjudication tasks, which in turn reduced overall 
compensation costs while raising the non-compensation costs with 
increased time spent by contract staff on these tasks.
    While costs for the non-petition-based NIV service and the 
petition-based NIVs noted above have increased steadily and modestly 
since the last adjustment to these fees, actual demand has fluctuated 
more dramatically from year to year and has a greater impact on unit 
costs.

------------------------------------------------------------------------
                       Fiscal year                            Demand
------------------------------------------------------------------------
FY2000..................................................       9,555,828
FY2001..................................................      10,373,274
FY2002..................................................       7,965,703
FY2003..................................................       6,557,265
FY2004..................................................       6,643,800
FY2005..................................................       6,941,519
FY2006..................................................       7,331,518
FY2007..................................................       8,091,366
FY2008..................................................       8,169,792
FY2009..................................................       7,130,164
FY2010..................................................       7,670,062
FY2011..................................................       8,832,102
FY2012..................................................      10,343,241
FY2013..................................................      10,722,905
FY2014..................................................      11,734,749
FY2015..................................................      13,307,973
FY2016..................................................      13,343,570
FY2017..................................................      12,339,180
FY2018..................................................      11,965,382
FY2019..................................................      11,657,163
FY2020 *................................................       5,783,251
FY2021 *................................................       2,200,000
FY2022 *................................................       3,080,000
FY2023 *................................................       4,774,000
FY2024 *................................................       5,967,500
------------------------------------------------------------------------
* Projected Demand, in accordance with model, which included predicted
  volumes for FY 2020-2024.

    It is important to capture and analyze these fluctuations in demand 
to reflect visa demand trends while also approaching fee setting in a 
moderate and sustainable way. Therefore, as noted above, the proposed 
NIV fee recommendations use a 10-year average for demand to reduce 
volatility in unit costs and to prevent the extreme spikes in unit 
costs that would result if the Department used only demand figures from 
the lowest levels during the pandemic to set the fee. Because of the 
dramatic drop in visa demand experienced in FY 2020 due to the pandemic 
and projected to continue in the coming years, the 10-year average 
volume used in this calculation is still much lower than demand figures 
used to calculate this fee in prior models. As a result, the calculated 
unit cost for these services, which is the total service cost divided 
by the total service volume, has increased, and has led to the proposed 
visa application processing fee increases.
    The Department also proposes to increase the E category NIV fee 
from $205 to $485. This fee was last adjusted through an interim final 
rule in 2014 based on the results of the 2012 CoSM. The E category NIV 
is for traders, investors, and their employees who are in executive and 
supervisory positions, as well as those who possess skills essential to 
the firm's operations from countries that have a qualifying treaty of

[[Page 74022]]

commerce and navigation with the United States. These NIV applications 
have complex requirements that demand extensive review by adjudicators 
overseas. E visas are used to engage in trade primarily between the 
United States and the home country and represent less than one percent 
of all NIVs. The costs for this service have increased significantly 
while demand has only slightly increased since this fee was last 
adjusted.
    The significant increase in the cost of E Visas is attributable to 
increased level of effort on the part of the adjudicator as well as 
refined data collection techniques, which established that consular 
staff spend significantly more time (level of effort) to provide this 
service than previously captured. Following updates to the Foreign 
Affairs Manual, E visa adjudication guidelines now require more 
extensive officer scrutiny of applicant case files, which increases 
case-processing times. Applicant interviews are also much longer than 
the standard interview for non-petition based NIVs.
    In addition, the CODaC was moved from a paper-based survey to an 
online platform in 2017, to remedy errors and difficulties in the user 
experience. The online platform collects more accurate data because the 
responses go directly to the online database rather than being manually 
entered by a person. This, in turn, yields a more precise cost 
estimate, which better reflects the increased staff resources needed to 
process and adjudicate E visas. Because the associated costs of 
providing this service have increased significantly and demand for this 
service has remained relatively stable, the calculated unit cost 
increased significantly. As a result, the Department proposes to 
increase this fee to recover the cost of providing this service. See 8 
U.S.C. 1713(b) requiring the fee for MRVs, which include E visas, to be 
set at the higher of $65 or the actual cost of providing the service).

Proposed Visa Fee Changes: Special Visa Services

Waiver of Two-Year Residency Requirement

    The Department proposes to increase the J-Waiver fee from $120 to 
$510. This fee was last adjusted through rulemaking in 2014 based on 
the results of the 2012 CoSM. Certain categories of exchange visitors 
(J-1) are subject to a two-year home-country physical presence 
requirement. Exchange visitor program participants who are subject to 
the two-year home-country physical requirement must apply for a waiver 
either to stay in the United States beyond the end date of their 
program or if they want to submit an application to USCIS for a change 
in visa status. Otherwise, the exchange visitor is required to return 
to their home country for an aggregate of at least two years before 
applying for another visa to the United States. This two-year residency 
requirement upon request and approval may be waived in certain 
circumstances and the Department proposes increasing the associated fee 
for processing these waiver requests.
    The costs for this service have increased while demand has 
decreased since the last fee adjustment. Since this fee was last 
updated, CA discovered that not all costs for J-Waivers were being 
recorded correctly in the Department's GFMS. As a result, the Visa 
Office worked with CA's Comptroller offices to identify and assign 
costs correctly. Prior to this update, no operating costs, particularly 
those for contractors spending time on this service, were recorded and 
assigned to the Visa Office's Waiver Review division, the division 
responsible for adjudicating these waivers.
    After identifying and properly assigning these costs, all operating 
costs for J-Waivers have now been properly recorded, including contract 
costs related to this service. This update has resulted in more 
accurate cost assignment to this service and has led to an increase of 
related compensation and non-compensation costs. These cost increases 
are primarily attributed to the increases in level of effort that have 
recently been identified and properly assigned to this service. That 
combined with a significant decrease in demand led to an increase in 
the calculated unit cost. The unit cost increase is significant because 
of the increased costs and the relatively low volume for this service 
during the 10-year demand timeframe used to calculate this fee.

Regulatory Findings

Administrative Procedure Act

    The Department is publishing this rule as a proposed rule, with a 
60-day provision for public comments.

Regulatory Flexibility Act

    The Department has reviewed this rule and, by approving it, 
certifies that it will not have a significant economic impact on a 
substantial number of small entities as defined in 5 U.S.C. 601(6).

Unfunded Mandates Act of 1995

    This rule will not result in the expenditure by state, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any year, and it will not significantly or uniquely 
affect small governments. Therefore, no actions were deemed necessary 
under the provisions of the Unfunded Mandates Reform Act of 1995, 2 
U.S.C. 1501-1504.

Executive Order 12866

    Under Executive Order (E.O.) 12866, the Office of Information and 
Regulatory Affairs (OIRA) determines whether a regulatory action is 
significant and, therefore, subject to the requirements of the E.O. and 
review by OMB. 58 FR 51735. Section 3(f) of E.O. 12866 defines a 
``significant regulatory action'' as an action that is likely to result 
in a rule that: (1) Has an annual effect on the economy of $100 million 
or more, or adversely affects in a material way a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or communities 
(also referred to as economically significant); (2) creates serious 
inconsistency or otherwise interferes with an action taken or planned 
by another agency; (3) materially alters the budgetary impacts of 
entitlement grants, user fees, or loan programs, or the rights and 
obligations of recipients thereof; or (4) raises novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the E.O. Id. OIRA reviewed this proposed 
rule and has determined that it is economically significant under E.O. 
12866.
    The Department has reviewed this rule to ensure its consistency 
with the regulatory philosophy and principles set forth in E.O. 12866. 
This proposed rule is necessary in light of the CoSM's result that the 
cost of providing consular services has changed significantly since the 
last adjustment to these fees and justifies the implementation of new 
fees through the rulemaking process. The Department is setting the fees 
in accordance with 31 U.S.C. 9701 and other applicable authorities, as 
described in more detail above. See, e.g., 31 U.S.C. 9701(b)(2)(A) 
(``The head of each agency . . . may prescribe regulations establishing 
the charge for a service or thing of value provided by the agency . . . 
based on . . . the costs to the Government.'').
    The Department has reviewed the potential impact that these NIV 
application processing fee increases will have on demand and has 
determined that the impact on those who seek NIVs will be de minimis 
over the lifetime of the approved visa. The Department does not believe 
that the increased NIV application processing costs will deter

[[Page 74023]]

non-U.S. citizens from applying for tourist, work, and business visas.
    The following table summarizes the impact of this proposed rule:

                                                         Table 1--Impact of Proposed Fee Changes
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                Projected
                                                                                             annual  number     Estimated       Change in     Change in
              Item No.                  Proposed     Current     Change in     Percentage          of           change in    state retained   remittance
                                          fee          fee          fee         increase      applications     annual fees        fees       to treasury
                                                                                                   \1\        collected \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Schedule of Fees for Consular Services
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Nonimmigrant Visa Services
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
21. Nonimmigrant Visa Application
 and Border Crossing Card Processing
 Fees (per person)
    (a) Non-petition-based                   $245         $160          $85              53       2,377,236    $202,065,060    $202,065,060           $0
     nonimmigrant visa (except E
     category)......................
    (b) H, L, O, P, Q, and R                  310          190          120              63         239,529      28,743,480      28,743,480            0
     category nonimmigrant visa.....
    (c) E category nonimmigrant visa          485          205          280             137          17,902       5,012,560       5,012,560            0
    (e) Border Crossing Card--age 15         $245          160           85              53         388,320      33,007,200      33,007,200            0
     and over (10 year validity)....
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Immigrant and Special Visa Services
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
35. Special Visa Services
    (b) Waiver of two year residency          510          120          390             325           6,291       2,453,490       2,453,490            0
     requirement....................
                                     -------------------------------------------------------------------------------------------------------------------
        Total.......................  ...........  ...........  ...........  ..............  ..............     271,281,790     271,281,790            0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Application volume based on FY 2022 projected workload. FY 2022 is the likely year of implementation.
\2\ Change in fee collection is based on FY 2022 projected workload x change to fee.

Economic Impact

    In anticipation of questions from the public and various other 
stakeholders, the Department commissioned a price elasticity of demand 
study on the proposal for these fee increases. From the perspective of 
a tourist coming to the United States, the study found that the average 
cost to travel to the country is $4,834 by air. This information came 
from correspondence with the National Travel & Tourism Office at the 
Department of Commerce. Assuming that figure does not include the cost 
of a visa, the proposed fee increase for non-petition based NIVs would 
raise the total cost of a trip from $4,994 ($4,834 + $160) to $5,079 
($4,834 + $245). This reflects a minimal increase of less than two 
percent of the cost of the trip, assuming only one trip is taken during 
the visa's validity. If two trips are taken, the total cost increase is 
less than one percent; if more than two trips are taken, the increase 
is even less. Therefore, we expect this fee increase to have a de 
minimis effect on the demand for travel (see Table 2 below).

                         Table 2--Economic Impact of Non-Petition-Based NIV Fee Increase
----------------------------------------------------------------------------------------------------------------
         Number of trips                 1               2               5               7              10
----------------------------------------------------------------------------------------------------------------
Cost Per Trip...................       $4,834.21       $4,834.21       $4,834.21       $4,834.21       $4,834.21
Current Consular Fee............         $160.00          $80.00          $32.00          $22.86          $16.00
                                 -------------------------------------------------------------------------------
    Total Cost of Trip..........       $4,994.21       $4,914.21       $4,866.21       $4,857.07       $4,850.21
Cost per Trip...................       $4,834.21       $4,834.21       $4,834.21       $4,834.21       $4,834.21
                                 -------------------------------------------------------------------------------
Proposed Consular Fee...........         $245.00         $122.50          $49.00          $35.00          $24.50
                                 -------------------------------------------------------------------------------
    Total Cost of Trip..........       $5,079.21       $4,956.71       $4,883.21       $4,869.21       $4,858.71
                                 -------------------------------------------------------------------------------
$ Increase......................          $85.00          $42.50          $17.00          $12.14           $8.50
% Increase......................           1.70%           0.86%           0.35%           0.25%           0.18%
----------------------------------------------------------------------------------------------------------------

    In a similar manner, the Department assessed the impact on demand 
that the fee increase might have on individuals coming over on a 
particular type of petition-based NIV, the H-2A Visa (Temporary Worker 
Performing Agricultural Services Unavailable in the United States). The 
total cost to bring over an agricultural worker is estimated to be 
$10,177, or $10,367 with the current visa fee of $190. This information 
came from the U.S. Department of Agriculture. The proposed new fee 
raises the total cost from $10,367 ($10,177 + $190) to $10,487 ($10,177 
+ $310). This increases the total cost of bringing a worker over by 
just over one percent.
    While the study did not cover the increases for other petition-
based NIVs, E visas, or J-Waiver requests, similar

[[Page 74024]]

logic can be followed. Individuals use a J-Waiver, for example, to 
transfer to a work visa or a fiance visa without having to go back to 
their home countries for two years. Given that the waiver confers a 
significant economic benefit and that the average cost of international 
travel to the United States is more than $510, we expect this fee 
increase to also have a de minimis effect on demand.

Executive Orders 12372 and 13132

    This regulation 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 E.O. 13132, it is determined that this rule does not have sufficient 
federalism implications to require consultations or warrant the 
preparation of a federalism summary impact statement. The regulations 
implementing E.O. 12372 regarding intergovernmental consultation on 
federal programs and activities do not apply to this regulation.

Executive Order 13175

    The Department has determined that this rulemaking will not have 
tribal implications, will not impose substantial direct compliance 
costs on Indian tribal governments, and will not preempt tribal law. 
Accordingly, the requirements of E.O. 13175 do not apply to this 
rulemaking.

Paperwork Reduction Act

    This rule does not impose any new reporting or record-keeping 
requirements subject to the Paperwork Reduction Act.

List of Subjects in 22 CFR Part 22

    Consular services, Fees.

    Accordingly, for the reasons stated in the preamble, 22 CFR part 22 
is proposed to be amended as follows:

PART 22--SCHEDULE OF FEES FOR CONSULAR SERVICES--DEPARTMENT OF 
STATE AND FOREIGN SERVICE

0
1. The authority citation for part 22 continues to read as follows:

    Authority: 8 U.S.C. 1101 note, 1153 note, 1157 note, 1183a note, 
1184(c)(12), 1201(c), 1351, 1351 note, 1713, 1714, 1714 note; 10 
U.S.C. 2602(c); 22 U.S.C. 214, 214 note, 1475e, 2504(h), 2651a, 
4206, 4215, 4219, 6551; 31 U.S.C. 9701; E.O. 10718, 22 FR 4632 
(1957); Exec. Order 11295, 31 FR 10603, 3 CFR 1966-1970 Comp. p. 
570.

0
2. Amend the table in 22.1 by revising entries 21 and 35 to read as 
follows:


Sec.  22.1   Schedule of Fees.

    The following table sets forth the proposed change to the following 
category listed on the U.S. Department of State's Schedule of Fees for 
Consular Services:

     Table 1 to Sec.   22.1--Schedule of Fees for Consular Services
------------------------------------------------------------------------
                 Schedule of Fees for Consular Services
-------------------------------------------------------------------------
                       Item No.                                Fee
------------------------------------------------------------------------
                       Nonimmigrant Visa Services
------------------------------------------------------------------------
                              * * * * * * *
21. Nonimmigrant Visa Application and Border Crossing
 Card Processing Fees (per person)
    (a) Non-petition-based nonimmigrant visa (except E              $245
     category)........................................
    (b) H, L, O, P, Q and R category nonimmigrant visa               310
    (c) E category nonimmigrant visa..................               485
    (e) Border crossing card--age 15 and over (10 year               245
     validity)........................................
                              * * * * * * *
------------------------------------------------------------------------
                   Immigrant and Special Visa Services
------------------------------------------------------------------------
                              * * * * * * *
35. Special visa services:
    (b) Waiver of two-year residency requirement......               510
                              * * * * * * *
------------------------------------------------------------------------


Kevin E. Bryant,
Deputy Director, Office of Directives Management, U.S. Department of 
State.
[FR Doc. 2021-28010 Filed 12-28-21; 8:45 am]
BILLING CODE 4710-06-P