Federal Register, Volume 87 Issue 61 (Wednesday, March 30, 2022)

[Federal Register Volume 87, Number 61 (Wednesday, March 30, 2022)]
[Rules and Regulations]
[Pages 18227-18261]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-06742]

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Rules and Regulations
Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents.

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Federal Register / Vol. 87, No. 61 / Wednesday, March 30, 2022 /
Rules and Regulations

[[Page 18227]]

DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 106

[CIS No. 2688-21; DHS Docket No. USCIS-2021-0011]
RIN 1615-AC73

Implementation of the Emergency Stopgap USCIS Stabilization Act

AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security.

ACTION: Final rule.

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SUMMARY: The Department of Homeland Security (DHS) is amending DHS
premium processing regulations to codify statutory changes made by the
Continuing Appropriations Act, 2021 and Other Extensions Act
(Continuing Appropriations Act). The Continuing Appropriations Act
included the Emergency Stopgap USCIS Stabilization Act (USCIS
Stabilization Act), which amended the Immigration and Nationality Act
(INA) by modifying U.S. Citizenship and Immigration Services' (USCIS)
authority to provide premium processing services and to establish and
collect premium processing fees for those services. This rule amends
DHS premium processing regulations by updating the regulations to
include the fees established by the USCIS Stabilization Act for
immigration benefit requests that were designated for premium
processing on August 1, 2020, and establishing new fees and processing
timeframes consistent with section 4102(b) of the USCIS Stabilization
Act.

DATES:
Effective Date: This rule is effective on May 31, 2022. The
availability of premium processing for newly designated immigration
benefit requests will be announced by USCIS in accordance with DHS
premium processing regulations and will become available as stated at
that time.
Comment Date: DHS will only accept comments on the revised
information collection Form I-907 described in the Paperwork Reduction
Act section of this rule. Comments on the revised information
collection must be received on or before May 31, 2022. This comment
period applies to the Paperwork Reduction Act section of this rule
only; it does not cover the substance of the regulatory changes, future
policy associated with premium processing availability, or on any other
topic related to this rulemaking beyond the proposed revisions to the
impacted information collections.

ADDRESSES: All comments on the information collection must be submitted
through the Federal eRulemaking Portal: https://www.regulations.gov.
The comments on the information collection must be identified by DHS
Docket No. USCIS 2006-0025 and OMB Control Number 1615-0048. Follow the
website instructions for submitting comments. Comments submitted in a
manner other than the one listed above, including emails or letters
sent to DHS or USCIS officials, will not be considered comments on the
information collection requirements and will not receive a response
from DHS. Please note that USCIS cannot accept any comments that are
hand delivered or couriered. In addition, USCIS cannot accept comments
contained on any form of digital media storage devices, such as CDs/
DVDs and USB drives. USCIS is also not accepting mailed comments at
this time. If you cannot submit your comment by using https://www.regulations.gov, please contact Samantha Deshommes, Chief,
Regulatory Coordination Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
by telephone at (240) 721-3000 for alternate instructions. Public
comments submitted on matters related to this final rule, but not
specifically associated with the revised information collections, will
not be considered by DHS.

FOR FURTHER INFORMATION CONTACT: Connie L. Nolan, Acting Associate
Director, Service Center Operations, U.S. Citizenship and Immigration
Services, U.S. Department of Homeland Security, 5900 Capital Gateway
Drive, Camp Springs, MD 20746; telephone 240-721-3000.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
A. Purpose of the Regulatory Action
B. Legal Authority
C. Summary of Costs and Benefits
D. Summary of the Major Provisions of This Regulatory Action
II. Background
A. Current State of DHS Premium Processing Regulations
B. History of DHS Premium Processing Regulations
C. The USCIS Stabilization Act
III. Discussion of the Changes
IV. Statutory and Regulatory Requirements
A. Administrative Procedure Act
B. Executive Order 12866 (Regulatory Planning and Review) and
Executive Order 13563 (Improving Regulation and Regulatory Review)
C. Regulatory Flexibility Act
D. Small Business Regulatory Enforcement Fairness Act of 1996
(Congressional Review Act)
E. Unfunded Mandates Reform Act of 1995
F. Executive Order 13132 (Federalism)
G. Executive Order 12988 (Civil Justice Reform)
H. National Environmental Policy Act
I. Family Assessment
J. Paperwork Reduction Act

Table of Abbreviations

APA--Administrative Procedure Act
BLS--Bureau of Labor Statistics
CEQ--Council on Environmental Quality
CFR--Code of Federal Regulations
CPI--Consumer Price Index
CPI-U--Consumer Price Index for All Urban Consumers
CRA--Congressional Review Act
DHS--Department of Homeland Security
EB--Employment-Based
E.O.--Executive Order
FR--Federal Register
FY--Fiscal Year
GPO--Government Publishing Office
ICE--Immigration and Customs Enforcement
INA--Immigration and Nationality Act
IT--Information technology
NARA--U.S. National Archives and Records Administration
NEPA--National Environmental Policy Act
NIW--National Interest Waiver
NPRM--Notice of Proposed Rulemaking
OP&S--Office of Policy and Strategy
OMB--Office of Management and Budget
PRD--Policy Research Division
Pub. L.--Public Law
RFA--Regulatory Flexibility Act
RIA--Regulatory Impact Analysis
SBREFA--Small Business Regulatory Enforcement Fairness Act
Secretary--Secretary of Homeland Security

[[Page 18228]]

Stat.--U.S. Statutes at Large
UMRA--Unfunded Mandates Reform Act of 1995
U.S.C.--U.S. Code
USCIS--U.S. Citizenship and Immigration Services
USCIS Stabilization Act--Emergency Stopgap USCIS Stabilization Act

I. Executive Summary

A. Purpose of the Regulatory Action

The purpose of this rulemaking is to amend the DHS premium
processing regulations to codify those fees set by the USCIS
Stabilization Act under section 286(u)(3)(A) of the INA, 8 U.S.C.
1356(u)(3)(A), and to establish new fees and processing timeframes for
new immigration benefit requests, consistent with the conditions and
eligibility requirements set forth by section 4102(b)(1) of the USCIS
Stabilization Act.
In 2000, Congress added new section 286(u) to the INA, 8 U.S.C.
1356(u), to permit the former Immigration and Naturalization Service to
designate certain employment-based immigration benefit requests for
premium processing subject to an additional fee.\1\ At the time,
Congress set the premium processing fee and authorized USCIS to adjust
the fee for inflation, as determined by the Consumer Price Index for
All Urban Consumers (CPI-U).\2\ On this basis, USCIS established
premium processing fees and timeframes for certain employment-based
petitions, including Form I-129, Petition for a Nonimmigrant Worker,
and Form I-140, Immigrant Petition for Alien Workers, in certain visa
classifications. Petitioners and applicants request premium processing
through filing Form I-907, Request for Premium Processing Service, and
paying the appropriate fee.\3\
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\1\ See Public Law 106-553, App. B, tit. I, sec. 112, 114 Stat.
2762, 2762A-68 (Dec. 21, 2000); INA sec. 286(u) (2000), 8 U.S.C.
1356(u)(2000).
\2\ Id.
\3\ See 66 FR 29682 (Jun. 1, 2001); see also 8 CFR
103.7(b)(1)(i)(SS) and (e).
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\4\ See Emergency Stopgap USCIS Stabilization Act, Public Law
116-159, sec. 4102 (Oct. 1, 2020).
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B. Legal Authority

The Secretary of Homeland Security's (Secretary) authority for
regulatory amendments is found in various provisions of the INA, 8
U.S.C. 1101, et seq., and the Homeland Security Act of 2002, Public Law
107-296, 116 Stat. 2135, 6 U.S.C. 101, et seq. General authority for
issuing this rule is found in section 103(a) of the INA, 8 U.S.C.
1103(a), which authorizes the Secretary to administer and enforce the
immigration and nationality laws, and to establish such regulations as
the Secretary deems necessary. In addition, section 286(u) of the INA,
8 U.S.C. 1356(u), provides the Secretary with authority to establish
and collect a premium fee for the premium processing of certain
immigration benefit types. The Continuing Appropriations Act, 2021 and
Other Extensions Act, which was signed into law on October 1, 2020,
contains the Emergency Stopgap USCIS Stabilization Act (USCIS
Stabilization Act).\5\ The USCIS Stabilization Act, among other things,
set new fees for immigration benefit requests that were designated for
premium processing on August 1, 2020, and expanded USCIS authority to
establish and collect additional premium processing fees, and to use
those additional funds for expanded purposes, including to provide
premium processing services to requestors, to make infrastructure
improvements in adjudications processes and the provision of
information and services to immigration and naturalization benefit
requestors, to respond to adjudication demands, including by reducing
the number of pending immigration and naturalization benefit requests,
and to otherwise offset the cost of providing adjudication and
naturalization services.\6\
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\5\ USCIS Stabilization Act, Public Law 116-159 (Oct. 1, 2020).
\6\ See id. at sec. 4102.
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C. Summary of Costs and Benefits

The USCIS Stabilization Act increased the fees for premium
processing services already available, sets fees for and expands
premium processing to additional immigration benefits requests, and
provides specific purposes for the premium processing fees.\7\ The fees
may be used to provide the premium processing services; make
infrastructure improvements in adjudications processes and the
provision of information and services to immigration and naturalization
benefit requestors; respond to adjudication demands, including by
reducing the number of pending immigration and naturalization benefit
requests; and otherwise offset the cost of providing adjudication and
naturalization services.\8\ This rule provides DHS with the opportunity
to increase revenue in order to make infrastructure improvements and
improve processing times, among other purposes.
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\7\ See USCIS Stabilization Act, Public Law 116-159 (Oct. 1,
2020).
\8\ See id. at sec. 4102(a)(codified as amended at 8 U.S.C.
1356(u)(4) (2020)).
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This expansion of electronic filing to application and benefit
requests is a prerequisite so that the premium processing form, Form I-
907 (which is not currently available electronically) could be filed
electronically with the benefit request form for which premium
processing is being requested. USCIS plans to encumber additional IT
resources needed to make the I-907 available for electronic filing
independent of this rule. USCIS intends to implement expansion of
premium processing availability of Forms I-539, I-765 and I-140 as soon
as feasible. DHS plans on a phased implementation strategy to allow
current premium processing revenue to pay for development and
implementation costs associated with expanding availability of the
service. DHS plans to implement expansion for certain categories of
Forms I-539, I-765 and both of the new I-140 classifications in FY
2022. DHS estimates that it will not be able to expand premium
processing to the additional categories of Forms I-539 and I-765 until
FY 2025 due to the possibility that premium processing revenues do not
yet exist to cover any potential costs associated with expanding
premium processing to these additional categories without adversely
affecting the processing times of other immigration benefit requests,
as directed by Congress. This is explained in greater detail in the
``Government Costs'' section below. The projected implementation plan
will allow current premium processing revenue to cover potential costs
from the expedited processing of a large volume of new requests.
For the 10-year implementation period of the rule if year one is FY
2021, DHS estimates the annualized cost to be $13 million discounted at
3 percent and $12 million discounted at 7 percent. These costs are from
the opportunity costs of time that newly eligible populations of Forms
I-140, I-539, and I-765 will incur to request premium processing.
For the 10-year implementation period of the rule, DHS estimates
the annualized transfer payments from the

[[Page 18229]]

Form I-129 and Form I-140 fee-paying population, and from newly
eligible classifications of Form I-140 petitioners, Form I-539
applicants and Form I-765 applicants to DHS to be $743 million
discounted at 3 percent and $729 million discounted at 7 percent due to
the increase in filing fees.
This final rule benefits petitioners of Form I-140 (EB-1,
multinational executives and managers and EB-2, members of professions
with advanced degrees or exceptional ability seeking a national
interest waiver) who were previously ineligible for premium processing,
but will now be eligible following implementation of this final rule to
request expedited review of their petitions. As a result, an
adjudicative action would be taken more quickly. This change benefits
businesses that previously would have had to wait longer to receive
adjudicative action (such as a notice of approval) for an employee. It
also benefits applicants of Form I-539 who will have the option to
receive a decision on their request for a change of status or extension
of stay sooner than before, which may alleviate concern about lapses in
their nonimmigrant status. Applicants of Form I-765 would benefit
through receipt of an adjudicative decision in a specified timeframe
making those applicants eligible to work legally in the United States
sooner than they would previously.

D. Summary of the Major Provisions of This Regulatory Action

This rule amends DHS premium processing regulations to codify those
fees set by the USCIS Stabilization Act in section 286(u)(3)(A) of the
INA, 8 U.S.C. 1356(u)(3)(A), as well as the preexisting timeframes for
those immigration benefit requests that had been designated for premium
processing as of August 1, 2020, and to establish new fees and
processing timeframes for new immigration benefit requests, consistent
with the conditions and eligibility requirements set forth by section
4102(b)(1) of the USCIS Stabilization Act. This rule further amends DHS
premium processing regulations to codify the USCIS Stabilization Act's
changes to the process for adjusting premium processing fees at section
286(u)(3)(C) of the INA, 8 U.S.C. 1356(u)(3)(C), according to which
such adjustments are permitted on a biennial basis consistent with
certain changes to the Consumer Price Index for All Urban Consumers
(CPI-U).\9\ Finally, any additional changes made by this rule to revise
DHS regulations at new 8 CFR 106.4 pertaining to premium processing
\10\ are made to be consistent with amendments made by the USCIS
Stabilization Act.
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\9\ When making the biennial adjustment for premium processing
fees pursuant to 8 U.S.C. 1356(u)(3)(C), USCIS will use the Bureau
of Labor and Statistics CPI-U All Items as the index for the
adjustment. https://www.bls.gov/news.release/cpi.t01.htm (last
visited Jan. 7, 2022).
\10\ Those regulations also track the language that existed at 8
CFR 103.7(b)(1)(i)(SS) and (e) on October 1, 2020 (i.e., prior to
the 2020 USCIS Fee Schedule Final Rule).
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II. Background

A. Current State of DHS Premium Processing Regulations

On November 14, 2019, DHS published the proposed rule, ``U.S.
Citizenship and Immigration Services Fee Schedule and Changes to
Certain Other Immigration Benefit Request Requirements,'' in the
Federal Register proposing to adjust certain immigration and
naturalization benefit request fees charged by USCIS.\11\ On August 3,
2020, DHS published the final rule with an effective date of October 2,
2020.\12\ This effectively transferred DHS premium processing
regulations from 8 CFR 103.7(b)(1)(i)(SS) and (e) to the new 8 CFR part
106, specifically 8 CFR 106.4, ``Premium processing service.''
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\11\ See 84 FR 62280 (Nov. 14, 2019).
\12\ U.S. Citizenship and Immigration Services Fee Schedule and
Changes to Certain Other Immigration Benefit Request Requirements,
85 FR 46788 (Aug. 3, 2020) (2020 Fee Schedule Final Rule).
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On September 29, 2020, the U.S. District Court for the Northern
District of California granted a motion for a preliminary injunction
and stay under 5 U.S.C. 705 of the 2020 Fee Schedule Final Rule in its
entirety.\13\ On October 8, 2020, the U.S. District Court for the
District of Columbia also granted a motion for a preliminary injunction
and stay under 5 U.S.C. 705 of the 2020 Fee Schedule Final Rule.\14\
And, on January 29, 2021, DHS published a notification of preliminary
injunction in the Federal Register to inform the public of the two
preliminary injunctions of the 2020 Fee Schedule Final Rule.\15\ The
Department continues to comply with the terms of those orders and is
not enforcing the regulatory changes set out in the 2020 Fee Schedule
Final Rule.
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\13\ Immigrant Legal Resource Center v. Wolf, 491 F. Supp. 3d
520 (N.D. Cal. Sept. 29, 2020) (ILRC v. Wolf).
\14\ See Northwest Immigrant Rights Project, et al., v. United
States Citizenship and Immigration Services, et al. 496 F. Supp. 3d
31 (D.D.C. Oct. 8, 2020) (NWIRP v. USCIS).
\15\ See 86 FR 7493 (Jan. 29, 2021).
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Litigation in ILRC v. Wolf and NWIRP v. USCIS is currently stayed
through February 14, 2022, to allow DHS to move forward through notice-
and-comment rulemaking with a possible new USCIS fee schedule that
would rescind and replace the changes made by the 2020 Fee Schedule
Final Rule and establish new USCIS fees to recover USCIS operating
costs.\16\
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\16\ See Spring 2021 Unified Agenda of Regulatory and
Deregulatory Actions, U.S. Citizenship and Immigration Services Fee
Schedule, available at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202104&RIN=1615-AC68 (last visited Feb. 8,
2022).
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USCIS continued to accept the premium processing fees that were in
place before October 2, 2020. On October 19, 2020, pursuant to the
passage of the USCIS Stabilization Act, USCIS increased those premium
processing fees that were in place at that time.\17\
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\17\ On October 16, 2020, USCIS issued a web alert notifying the
public that USCIS would increase fees for premium processing,
effective October 19, 2020, as required by the Continuing
Appropriations Act, 2021 and Other Extensions Act, Public Law 116-
159, signed into law on October 1, 2020. https://www.uscis.gov/news/premium-processing-fee-increase-effective-oct-19-2020 (last updated
Oct. 16, 2020).
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Although DHS is enjoined from implementing or enforcing the 2020
Fee Schedule Final Rule and the rule has been stayed, the regulatory
amendments established by the 2020 Fee Schedule Final Rule were
incorporated into the Code of Federal Regulations (CFR) on October 2,
2020, by operation of the rule's publication in the Federal Register
and as the rule instructed.\18\ In that regard, DHS has not implemented
and is not administering the regulatory changes made by the 2020 Fee
Schedule Final Rule, but rather continues to follow the premium
processing regulations as provided in the versions of 8 CFR
103.7(b)(1)(i)(SS) and (e) as they existed until October 2, 2020.
Nevertheless, 8 CFR part 106 and the other regulatory changes in the
2020 Fee Schedule Final Rule have been codified. Therefore, DHS is
using this rule to revise all of the enjoined and stayed regulations
pertaining to premium processing at 8 CFR 106.4. Notably, DHS will
continue to calculate premium processing timeframes in calendar days
rather than business days, as it did before the 2020 Fee Schedule Final
Rule and as it continues to do under the terms of the injunctions.
Other than superseding the regulatory text set forth by the 2020 Fee
Schedule Final Rule related to calculating premium processing
timeframes in business days and reverting back to the established USCIS
practice of calculating premium processing timeframes using calendar
days, all other regulatory changes are

[[Page 18230]]

based upon those changes set forth in the USCIS Stabilization Act.
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\18\ See, e.g., 8 CFR part 106.
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Because the entirety of 8 CFR part 106, including 8 CFR 106.4, is
enjoined and stayed, and the previous DHS premium processing
regulations at 8 CFR 103.7(b)(1)(i)(SS) and (e) were removed, DHS will
amend 8 CFR 106.4 by revising it in its entirety. This will avoid any
confusion as to which DHS premium processing regulations are current
and make it clear to the public that the DHS premium processing
regulations are wholly contained in 8 CFR 106.4, available as a current
reference, and being followed by DHS. Legal citations to the changes
being made to DHS premium processing regulations in this preamble will
cite to ``8 CFR 106.4'' to comport with the current location of the
regulations in the CFR. However, because 8 CFR part 106 has been
enjoined and stayed, has not been implemented, and is not being
administered by USCIS, the standard of citing to the CFR print edition
date may be inaccurate. Therefore, in this rule, when DHS references
the no longer existing (but still being followed) 8 CFR
103.7(b)(1)(i)(SS) and (e), DHS will refer to these regulations as they
appeared in the CFR on October 1, 2020, and denote by reference to that
date in any legal citation (e.g., 8 CFR 103.7(b)(1)(i)(SS) or (e) (Oct.
1, 2020)).

B. History of DHS Premium Processing Regulations

The District of Columbia Appropriations Act of 2001 added section
286(u) to the INA, 8 U.S.C. 1356(u), authorizing the collection of a
$1,000 ``premium fee,'' in addition to the regular filing fee, from
persons seeking expedited processing of eligible employment-based
petitions and applications.\19\ Based upon this statutory authority,
the former Immigration and Naturalization Service issued an interim
rule establishing its premium processing service on June 1, 2001.\20\
Premium processing allows filers to request 15-day processing of
certain employment-based immigration benefit requests if they pay a
premium processing fee in addition to the base filing fee and any other
applicable fees.\21\ This premium processing fee cannot be waived.\22\
Premium processing is currently available for certain petitioners
filing a Form I-129, Petition for a Nonimmigrant Worker, or a Form I-
140, Immigrant Petition for Alien Workers, and seeking certain
employment-based classifications. USCIS informs the public by
announcements on its website of the dates of availability of premium
processing service for specific petitions or applications.\23\
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\19\ See District of Columbia Appropriations Act of 2001, Public
Law 106-553, tit. I, sec. 112, 114 Stat. 2762, 2762A-68 (Dec. 21,
2000).
\20\ See 66 FR 29682 (Jun. 1, 2001).
\21\ See 8 CFR 103.7(b)(1)(i)(SS) and (e) (Oct. 1, 2020).
\22\ See 8 CFR 103.7(b)(1)(i)(SS)(3) (Oct. 1, 2020).
\23\ See 8 CFR 103.7(b)(1)(i)(SS) and (e) (Oct. 1, 2020); see
also USCIS, ``How Do I Request Premium Processing?,'' https://www.uscis.gov/forms/all-forms/how-do-i-request-premium-processing
(last updated Apr. 12, 2021).
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The INA as amended by the District of Columbia Appropriations Act
of 2001 provided that premium processing revenue shall be used to fund
the cost of offering the service, as well as the cost of infrastructure
improvements in adjudications and customer service processes. The INA
as amended by the District of Columbia Appropriations Act of 2001
further provided USCIS with explicit authority to adjust the premium
processing fee for inflation based on the CPI-U.\24\ As such, DHS has
periodically adjusted the premium processing fee by the percentage
increase in inflation according to the CPI since premium processing's
inception.\25\ DHS first adjusted the premium processing fee from
$1,000 to $1,225 in the 2010 USCIS fee rule.\26\ Prior to the USCIS
Stabilization Act, DHS last adjusted the premium processing fee to
$1,440 in December 2019.\27\
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\24\ See INA sec. 286(u) (2000), 8 U.S.C. 1356(u) (2000); Public
Law 106-553, App. B, tit. I, sec. 112, 114 Stat. 2762, 2762A-68
(Dec. 21, 2000).
\25\ The CPI is issued by the Department of Labor's Bureau of
Labor Statistics (BLS) and can be found at http://www.bls.gov/cpi
(last visited Jan. 7, 2022).
\26\ See USCIS Fee Schedule; Final Rule, 75 FR 58962, 58978,
58988 (Sept. 24, 2010) (Between June 2001, when Congress established
the fee, and June 2010, the CPI-U [All Items] increased by 22.45%.
When that percentage increase is applied to the current premium
processing fee of $1,000, the adjusted premium processing fee is
$1,224 ($1,225 when rounded to the nearest $5.); 8 CFR
103.7(b)(1)(i)(RR) (effective Nov. 23, 2010, codified as amended at
8 CFR 103.7(b)(1)(i)(SS), 81 FR 73292, 73331 (Oct. 24, 2016)).
\27\ See Adjustment to Premium Processing Fee; Final Rule, 84 FR
58303, (Oct. 31, 2019) (Between June 2001 and August 2019, the CPI-U
[All Items] increased by 44.13 percent. When this percentage
increase is applied to the June 2001 premium processing fee of
$1,000, the adjusted premium processing fee is $1,441.34 ($1,440
when rounded to the nearest $5 increment.); 8 CFR 103.7(b)(1)(i)(SS)
(effective Dec. 2, 2019).
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C. The USCIS Stabilization Act

On October 1, 2020, the Continuing Appropriations Act, 2021 and
Other Extensions Act was signed into law. That enactment contains the
USCIS Stabilization Act.\28\ The USCIS Stabilization Act amended
section 286(u) of the INA, 8 U.S.C. 1356(u), by raising the premium
processing fees for immigration benefit types designated for premium
processing on or before August 1, 2020, and by expanding the benefit
types that may be designated for premium processing service within
prescribed limitations, among other changes.\29\ These additional
changes included redefining the process for adjusting premium
processing fees by the CPI and expanding the permissible uses of
revenue from the collection of premium processing fees, including
improvements to adjudications process infrastructure, responses to
adjudication demands, and to otherwise offset the cost of providing
adjudication and naturalization services.
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\28\ See USCIS Stabilization Act, Public Law 116-159 (Oct. 1,
2020).
\29\ On May 23, 2006, USCIS issued an interim rule changing the
premium processing regulations. See 71 FR 29571. Under that rule,
USCIS would designate petitions and applications for premium
processing by publication of notices in the Federal Register. That
same day, USCIS designated Forms I-539 and I-765 for premium
processing by a notice in the Federal Register. See 71 FR 29662. On
September 24, 2010, USCIS changed the manner in which a form would
be designated for premium processing. See 75 FR 58962. The 2010 rule
provides that premium processing designation will be established
through the USCIS website. Thus, for a form to be designated for
premium processing it must be designated as such on the USCIS
website. Forms I-539 and I-765 have not been designated for premium
processing on the USCIS website since the 2010 rule became effective
and so were not designated on August 1, 2020, nor did USCIS provide
premium processing for Forms I-539 and I-765 on or before August 1,
2020. Thus, Forms I-539 and I-765 are not covered by INA sec.
286(u)(3)(A), 8 U.S.C. 1356(u)(3)(A) (relating to ``immigration
benefit types designated as eligible for premium processing on or
before August 1, 2020.''), as enacted by the USCIS Stabilization
Act. USCIS interprets INA sec. 286(u)(3)(A), 8 U.S.C. 1356(u)(3)(A),
to refer to immigration benefit requests that were designated
pursuant to the premium processing regulations in effect at the time
of the statute's enactment. USCIS believes this interpretation is
supported by the fact that Congress specifically provided an
appropriate fee and processing timeframe for Forms I-539 and I-765
in sec. 4102(b)(1) of the USCIS Stabilization Act, which provides an
exception to 5 U.S.C. 553 in establishing an initial fee for those
forms. Additionally, because sec. 4102(b)(1) of the USCIS
Stabilization Act only applies to INA sec. 286(u)(3)(B) and to those
immigration benefit requests designated for premium processing after
August 1, 2020, it is clear that Congress intended for Forms I-539
and I-765 to fall under those immigration benefit requests described
in INA sec. 286(u)(3)(B) and not INA sec. 286(u)(3)(A).
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On October 16, 2020, USCIS announced it would increase the fees for
premium processing, as required by the USCIS Stabilization Act,
effective October 19, 2020.\30\ As of that date, the fee for Form I-
907, Request for Premium Processing Service, increased from $1,440 to
$2,500 for all immigration benefit requests that were designated for
premium processing as of August 1, 2020, with the exception that the

[[Page 18231]]

premium processing fee for petitioners filing Form I-129, Petition for
a Nonimmigrant Worker, requesting H-2B or R-1 nonimmigrant status
increased from $1,440 to $1,500. USCIS further announced that, while
the USCIS Stabilization Act gave USCIS the ability to expand premium
processing to additional forms and immigration benefit requests, USCIS
was not yet taking such action and that any expansion of premium
processing to other forms would be implemented as provided in the
legislation.\31\
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\30\ See USCIS, Premium Processing Fee Increase Effective Oct.
19, 2020, https://www.uscis.gov/news/premium-processing-fee-increase-effective-oct-19-2020 (last updated Oct. 16, 2020).
\31\ Id.
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Through this rulemaking, DHS is amending DHS premium processing
regulations to codify those fees set by the USCIS Stabilization Act
through enactment of section 286(u)(3)(A) of the INA, 8 U.S.C.
1356(u)(3)(A), as well as the preexisting timeframes for those
immigration benefit requests that were designated for premium
processing as of August 1, 2020, and to establish new fees and
processing timeframes for new immigration benefit requests, consistent
with the conditions and eligibility requirements set forth by section
4102(b)(1) of the USCIS Stabilization Act. DHS is also amending DHS
premium processing regulations to codify the USCIS Stabilization Act's
changes made at section 286(u)(3)(C) of the INA, 8 U.S.C.
1356(u)(3)(C), to the process for adjusting premium processing fees,
according to which such adjustments are permitted on a biennial basis
consistent with certain changes to the CPI-U.

III. Discussion of the Changes

Prior to the USCIS Stabilization Act, premium processing provided
expedited processing for certain designated classifications that are
requested on Form I-129 and Form I-140.\32\ USCIS had the authority to
designate the classifications of employment-based immigration benefit
requests that were eligible for premium processing by announcing on its
official internet website (http://www.uscis.gov) those immigration
benefit requests for which premium processing was available, the dates
upon which such availability commenced or ended, and any conditions
that applied. Also prior to the USCIS Stabilization Act, the fee and
processing timeframes for premium processing were uniform for all
designated immigration benefit requests. Specifically, USCIS guaranteed
processing for these requests within 15 days to petitioners who chose
to pay the additional fee to request this service. The 15-day period
would generally begin when USCIS properly received the correct version
of Form I-907, Request for Premium Processing Service, with fee, at the
correct filing address. Within the 15-day period, USCIS would issue
either an approval notice, denial notice, notice of intent to deny, or
request for evidence, or open an investigation for fraud or
misrepresentation. If USCIS did not take any of the above actions
within the 15-day period, USCIS would refund the premium processing
fee. If the benefit required the submission of additional evidence or a
response to a notice of intent to deny, a new 15-day period would begin
when USCIS received a complete response to the request for evidence or
notice of intent to deny. The premium processing fee was required to be
paid in addition to, and in a separate remittance from, other filing
fees, and could not be waived. Finally, the premium processing fee
amount could be adjusted annually by notice in the Federal Register
based on inflation according to the CPI.
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\32\ A list of immigration benefit requests available for
premium processing and when those immigration benefit requests
became available for premium processing can be found on USCIS's web
page, ``How Do I Request Premium Processing?,'' https://www.uscis.gov/forms/all-forms/how-do-i-request-premium-processing
(last updated Apr. 12, 2021).
---------------------------------------------------------------------------

While leaving in place the general concept and framework for
premium processing that existed prior to its enactment, the USCIS
Stabilization Act made significant changes to the INA, amending
significant aspects of premium processing that had previously been
established by regulation. While maintaining DHS's authority to set
reasonable conditions or limitations on premium processing, the USCIS
Stabilization Act expanded the immigration benefit types that can be
designated for premium processing, to wit: applications to change or
extend nonimmigrant status and applications for employment
authorization (generally on Form I-539, Application to Extend/Change
Nonimmigrant Status, and Form I-765, Application for Employment
Authorization, respectively) as well as any other immigration benefit
type that DHS deems appropriate for premium processing.\33\ This
expansion of premium processing to other immigration benefit types
generally requires that the initial premium processing fee be
established by regulation, with a detailed methodology supporting the
proposed premium processing fee amount.\34\ However, the USCIS
Stabilization Act did identify specific immigration benefit requests to
which premium processing could be expanded by final rule without regard
to the provisions of 5 U.S.C. 553 as long as the established premium
fee and required processing timeframe are consistent with the
limitations described therein.\35\ These immigration benefit requests
and applicable fees and timeframes are:
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\33\ See USCIS Stabilization Act, Public Law 116-159 (Oct. 1,
2020).
\34\ See id. at sec. 4102(a)(codified as amended at 8 U.S.C.
1356(u)(3)(B) (2020)).
\35\ See id. at sec. 4102(b) (Oct. 1, 2020).
---------------------------------------------------------------------------

Form I-140 requesting EB-1 immigrant classification as a
multinational executive or manager or EB-2 immigrant classification as
a member of professions with advanced degrees or exceptional ability
seeking a national interest waiver (NIW). Fee: $2,500. Timeframe: 45
days;
Form I-539 requesting a change of status to F-1, F-2, J-1,
J-2, M-1, or M-2 nonimmigrant status or a change of status to or
extension of stay in E-1, E-2, E-3, H-4, L-2, O-3, P-4, or R-2
nonimmigrant status. Fee: $1,750. Timeframe: 30 days; and
Form I-765 requesting employment authorization. Fee:
$1,500. Timeframe: 30 days.\36\
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\36\ Id.
---------------------------------------------------------------------------

The primary purpose of this rule is to add these specific benefit
types as those designated for premium processing in DHS regulations
with both a premium processing fee and required processing timeframe,
consistent with the exemption from 5 U.S.C. 553, while further
reconciling the premium processing regulations with the other changes
made by the USCIS Stabilization Act. In the Executive Orders 12866 and
13563 section of this rule, DHS estimates the number of newly eligible
I-140 petitioners, I-539 applicants, or I-765 applicants that may
choose to submit a premium processing request. However, as further
discussed in section IV.B of this rule, it is difficult for DHS to
determine the amount of time and resources specifically needed to
accommodate these new requests for premium processing. Therefore, DHS
has set the premium processing fees and timeframes for the newly
eligible immigration benefit requests to be consistent with the fees
and maximum processing timeframes set forth by Congress in section
4102(b)(1) of the USCIS Stabilization Act. As provided by section
4102(b)(2) of the USCIS Stabilization Act and as codified in the new 8
CFR 106.4(f)(2)(ii), the premium processing timeframe for the
immigration benefit requests identified in section 4102(b) of the USCIS
Stabilization Act will commence on the date that all prerequisites for

[[Page 18232]]

adjudication, the form prescribed by USCIS, and fee(s) are received by
USCIS.
DHS is not codifying a definition of the phrase ``prerequisites for
adjudication'' in this rule and will determine when the timeframe
begins based on the benefit request and what is required to fully
adjudicate it, consistent with otherwise applicable regulations. USCIS
has been unable to offer premium or expedited services for many of its
adjudication and naturalization services because of the difficulty in
determining the appropriate fee, staffing levels, time period for
adjudication, and other parameters. The USCIS Stabilization Act
recognized that it is the requestor's responsibility to provide a
complete request before premium processing can begin and that there is
inherent ambiguity in defining the appropriate timeframe. DHS
interprets ``prerequisites for adjudication'' in section 4102(b) to at
least require a complete, fully executed form as prescribed and
required by 8 CFR 1.2 and 8 CFR 103.2(a)(7), completed in accordance
with the form instructions as required by 8 CFR 103.2(a)(1), and other
filing requirements as may be provided in the applicable regulations
for the specific benefit request, including receiving all necessary
evidence and information from interviews, biometrics submission, and
background checks. USCIS may specify additional prerequisites that
determine when the timeframe begins when it announces those requests
for which premium processing may be requested and any conditions that
may apply under 8 CFR 106.4(g).
The USCIS Stabilization Act also established distinct premium
processing fees and the authority to establish distinct premium
processing timeframes based upon the specific immigration benefit
request.\37\ With respect to an immigration benefit type designated for
premium processing before August 1, 2020, the premium fee was set at
$2,500, except that the premium fee for petitioners filing Form I-129
requesting H-2B or R-1 nonimmigrant status was set at $1,500.\38\ This
rule codifies these changes by specifically defining the premium
processing fee and the premium processing timeframe for those
immigration benefit types that were designated for premium processing
before August 1, 2020. As maintained in the new 8 CFR 106.4(f)(2)(i),
the premium processing timeframe for these benefits requests will
commence on the date that the form prescribed by USCIS and fee(s) are
received by USCIS.
---------------------------------------------------------------------------

\37\ See id. at sec. 4102(b).
\38\ See id. at sec. 4102(a)(codified as amended at 8 U.S.C.
1356(u)(3)(A) (2020)).
---------------------------------------------------------------------------

The USCIS Stabilization Act also amended the INA by adding section
286(u)(3)(C), 8 U.S.C. 1356(u)(3)(C), which adjusts the frequency and
the manner in which USCIS may periodically adjust the fees for premium
processing.\39\ The statute now provides that the Secretary may adjust
these fees on a biennial basis by the percentage (if any) of the CPI-U
\40\ for the month of June preceding the date on which such adjustment
takes effect exceeds the CPI-U for the same month of the second
preceding calendar year.\41\ Adjustments to the premium processing fees
made in this manner are specifically exempted from notice-and-comment
rulemaking.\42\ These changes have been codified at new 8 CFR 106.4(d).
DHS will maintain its practice of announcing adjustments to the premium
processing fees that are not subject to notice and comment (and made
pursuant to section 286(u)(3)(C) of the INA, 8 U.S.C. 1356(u)(3)(C))
through publication in the Federal Register.\43\
---------------------------------------------------------------------------

\39\ See id. at sec. 4102(a)(codified as amended at 8 U.S.C.
1356(u)(3)(C) (2020)).
\40\ See supra note 9.
\41\ See USCIS Stabilization Act, Public Law 116-159 (Oct. 1,
2020).
\42\ Id.
\43\ See 8 CFR 103.7(b)(1)(i)(SS)(2) (Oct. 1, 2020); See new 8
CFR 106.4(d).
---------------------------------------------------------------------------

The premium processing regulations require USCIS to communicate
which immigrant benefit requests are available for premium processing,
the dates upon which availability commences and ends and any conditions
that may apply to seeking a request for premium processing.\44\ USCIS
will maintain this practice. In order to provide USCIS with the
flexibility to be adequately responsive to changing customer demands
and resource constraints, new 8 CFR 106.4(g) draws on the previous
process that USCIS used to announce when premium processing is
available and may be requested.\45\ In particular, USCIS will announce
by its official website those requests for which premium processing of
designated benefits is available, the dates when such availability
commences or ends, and any conditions that may apply.\46\ Such
conditions may include establishing a prerequisite to eligibility for
the underlying immigration benefit request, as is the case currently
where USCIS will only accept a request for premium processing on a
petition for temporary nonimmigrant religious worker (R-1 visa) after
there has been a successful onsite inspection.\47\ Such conditions may
also include establishing periods of pendency or specific filing dates
necessary for phasing-in expanded premium processing for immigration
benefit requests or delaying receipt dates for those immigration
benefit requests subject to a numerical limitation (or cap) to
determine whether a random selection process (or lottery) may be
necessary and to complete such process when required. The use of such
prerequisites and conditions is consistent with established USCIS
premium processing practices as they existed prior to the USCIS
Stabilization Act.
---------------------------------------------------------------------------

\44\ See 8 CFR 103.7(e)(3)(ii) (Oct. 1, 2020).
\45\ See 8 CFR 103.7(e)(3) (Oct. 1, 2020).
\46\ See new 8 CFR 106.4(g)(1).
\47\ See I-907, Request for Premium Processing Service--Special
Instructions, https://www.uscis.gov/i-907 (last updated Sep. 30,
2021).
---------------------------------------------------------------------------

Consistent with the USCIS Stabilization Act, new 8 CFR 106.4(g)
further clarifies that USCIS may suspend the availability of premium
processing for certain immigration benefit requests if circumstances
prevent the agency from being able to complete a significant number of
such requests within the applicable processing timeframe.\48\ New 8 CFR
106.4(g) also makes clear that the designation of a benefit request for
premium processing and establishing the corresponding premium
processing fees and timeframes, does not in itself permit a request for
premium processing to be filed for an immigration benefit request, but
that USCIS must also make premium processing available for each
immigration benefit request type. By identifying and establishing those
immigration benefit request types designated for premium processing in
this rule and the corresponding fees and processing timeframes,
consistent with the USCIS Stabilization Act, this rule will allow USCIS
to offer and suspend premium processing for designated immigration
benefit request types in reaction to customer needs and USCIS workload,
when there are circumstances that prevent USCIS from completing the
processing of a significant number of premium processing requests
within the required timeframes and in accordance with the procedures
codified at new 8 CFR 106.4(g).
---------------------------------------------------------------------------

\48\ See USCIS Stabilization Act, sec. 4102(a)(codified as
amended at 8 U.S.C. 1356(u)(5)(A) (2020)), Public Law 116-159 (Oct.
1, 2020). See new 8 CFR 206.4(g)(2).
---------------------------------------------------------------------------

Relatedly, the USCIS Stabilization Act requires that when DHS
implements the availability of premium processing, or expands premium
processing to new immigration benefit request types, DHS must ensure
that such implementation or expansion does not result in an

[[Page 18233]]

increase in processing times for immigration benefit requests not
designated for premium processing or an increase in regular processing
of immigration benefit requests so designated.\49\ Before DHS can
implement the expansion of premium processing provided in this rule,
DHS must raise sufficient funds to ensure it has the staffing and
information technology (IT) resources in place to expand premium
processing availability to avoid increasing non-premium processing
related processing times. The current processing times for the
immigration benefit requests newly designated for premium processing
exceed the proposed premium processing timeframes by many months as
expected.
---------------------------------------------------------------------------

\49\ See USCIS Stabilization Act, sec. 4102(c), Public Law 116-
159 (Oct. 1, 2020).
---------------------------------------------------------------------------

DHS generally cannot reallocate staff to adjudicate these
immigration benefit requests without adversely affecting processing
times for other non-premium processing related immigration benefit
requests. Therefore, DHS must hire and train new staff with revenue
from current premium processing requests in order to expand expedited
adjudication of premium processing consistent with the statutory
requirement. Delayed implementation will allow USCIS to maintain a
minimum premium revenue carryover balance. USCIS will use the carryover
balance to ensure fiscal stability and fund infrastructure and process
improvements, such as the expansion of premium services. For these
reasons and circumstances, DHS will suspend the availability of premium
processing for those immigration benefit requests newly designated for
premium processing by this rule and will not make those immigration
benefit requests newly designated by this rule immediately available
for premium processing upon the effective date of this rule.
In the 2020 Fee Schedule NPRM, DHS changed the way it calculated
the 15-day premium processing clock from counting calendar days to
counting business days.\50\ DHS explained it was necessary to make this
change, because of the frequency by which USCIS found it necessary to
suspend premium processing for certain categories of employment-based
petitions as a result of having to reassign officers to process long-
pending non-premium filed petitions and to prevent a lapse in
employment authorization for beneficiaries of Form I-129 extension of
stay petitions. There were also instances when USCIS could not meet the
15-day premium processing requirement due to surges in petitions
accompanied by premium processing requests, which resulted in USCIS
having to refund the premium processing fees and incurring additional
costs as a result.\51\
---------------------------------------------------------------------------

\50\ See 8 CFR 106.4(a).
\51\ See U.S. Citizenship and Immigration Services Fee Schedule
and Changes to Certain Other Immigration Benefit Request
Requirements, 84 FR 62280, 62311-12 (Nov. 14, 2019) (2020 Fee
Schedule NPRM).
---------------------------------------------------------------------------

In this rule, DHS is removing any reference to calculating premium
processing timeframes in business days that were finalized in the 2020
Fee Schedule Final Rule. Following issuance of this rule, DHS intends
to continue to calculate premium processing timeframes by counting
calendar days. As previously discussed, the 2020 Fee Schedule Final
Rule is enjoined and stayed, and the regulations as codified in 8 CFR
106.4 are not being administered by USCIS.
Because the litigation in ILRC v. Wolf and NWIRP v. USCIS is
currently stayed, and because DHS plans to replace the regulations
codified by the 2020 Fee Schedule Final Rule with a new rule, the
regulations currently at 8 CFR 106.4 have never been implemented. USCIS
currently is not calculating premium processing timeframes in business
days, consistent with the terms of the injunctions and stays. Rather,
USCIS is calculating premium processing timeframes, as it has always
done, by counting calendar days. By removing the reference to business
days in the premium processing regulations, the premium processing
regulations will be clear and consistent with current practices and
requirements and not be a source of confusion to the public.\52\
---------------------------------------------------------------------------

\52\ Counting premium processing timeframes by calendar days is
also consistent with the definition of ``day'' in 8 CFR 1.2, which
provides that when computing the period of time for taking any
action [in chapter I of title 8 of the CFR] including the taking of
an appeal, [it] shall include Saturdays, Sundays, and legal
holidays, except that when the last day of the period computed falls
on a Saturday, Sunday, or a legal holiday, the period shall run
until the end of the next day which is not a Saturday, Sunday, or a
legal holiday.
---------------------------------------------------------------------------

IV. Statutory and Regulatory Requirements

A. Administrative Procedure Act

The Administrative Procedure Act (APA) generally requires agencies
to issue a proposed rule before issuing a final rule, subject to
certain exceptions.\53\ As explained below, the changes made in this
rule do not require advance notice and opportunity for public comment,
because the changes are (1) exempt from the requirements of 5 U.S.C.
553 by section 4102(b)(1) of the USCIS Stabilization Act, (2) exempt
from public comment under 5 U.S.C. 553(b)(B) because they merely
restate existing law, or (3) exempt as procedural under 5 U.S.C.
553(b)(A).
---------------------------------------------------------------------------

\53\ See 5 U.S.C. 553(b).
---------------------------------------------------------------------------

(1) Statutory Exemption From the Requirements of 5 U.S.C. 553
The USCIS Stabilization Act has exempted DHS from the requirements
of 5 U.S.C. 553 when USCIS establishes fees that are consistent with
section 4102(b) of the USCIS Stabilization Act. This exemption allows
DHS to establish fees consistent with section 4102(b) of the USCIS
Stabilization Act by final rule and does not require notice-and-comment
rulemaking.\54\
---------------------------------------------------------------------------

\54\ See USCIS Stabilization Act, sec. 4102(b)(1).
---------------------------------------------------------------------------

(2) Statutorily Required Changes
The USCIS Stabilization Act made statutory changes to section
286(u) of the INA, 8 U.S.C. 1356(u).\55\ DHS has good cause to bypass
notice-and-comment procedures when incorporating those nondiscretionary
statutory changes made by the USCIS Stabilization Act to section 286(u)
of the INA, 8 U.S.C. 1356(u), through conforming changes to the DHS
premium processing regulations via this rulemaking. When regulations
merely restate the statute they implement (i.e., when the rule does not
change the established legal order), the APA does not require the
agency to use notice-and-comment procedures. See 5 U.S.C. 553(b)(B);
Gray Panthers Advocacy Committee v. Sullivan, 936 F.2d 1284, 1291 (D.C.
Cir. 1991); see also United States v. Cain, 583 F.3d 408, 420 (6th Cir.
2009) (contrasting legislative rules, which require notice-and-comment
procedures, ``with regulations that merely restate or interpret
statutory obligations,'' which do not); Komjathy v. Nat. Trans. Safety
Bd., 832 F.2d 1294, 1296 (D.C. Cir. 1987) (when a rule ``does no more
than repeat, virtually verbatim, the statutory grant of authority''
notice-and-comment procedures are not required). This exception to
notice and comment applies to the portions of this rule that merely
restate the fees for those immigration benefit types designated for
premium processing on or before August 1, 2020 and the biennial fee
adjustment.\56\ This exception also applies to the portions of this
rule that codify the clarification provided in section 4102(b)(2) of
the USCIS Stabilization Act regarding when processing timeframes will
commence

[[Page 18234]]

for those benefit request types described in section 4102(b)(1) of the
USCIS Stabilization Act and the manner in which USCIS may suspend
premium processing services now codified in section 286(u)(5)(A) of the
INA, 8 U.S.C. 1356(u)(5)(A).\57\
---------------------------------------------------------------------------

\55\ See id. at sec. 4102(a).
\56\ See USCIS Stabilization Act, sec. 4102(a); new 8 CFR
106.4(c) and (d).
\57\ See new 8 CFR 106.4(f)(2)(ii) and (g).
---------------------------------------------------------------------------

(3) Rule of Procedure
This rule is also exempt, in its entirety, from the notice-and-
comment requirements of 5 U.S.C. 553, because the rule's provisions are
fundamentally procedural in nature. See 5 U.S.C. 553(b)(A). See
generally Mendoza v. Perez, 754 F.3d 1002, 1023 (D.C. Cir. 2014)
(``Procedural rules do not themselves alter the rights or interests of
parties, although they may alter the manner in which the parties
present themselves or their viewpoints to the agency. The distinction
between substantive and procedural rules is one of degree depending
upon whether the substantive effect is sufficiently grave so that
notice and comment are needed to safeguard the policies underlying the
APA.'' (cleaned up)). This rule describes the process and the
procedures that USCIS will employ to make premium processing available
to the public. This rule explains that there is premium processing for
certain immigration benefit requests, how to submit a request for
premium processing, those immigration benefits designated for premium
processing and the associated fees, how fees will be adjusted,
processing timeframes (including the reversion to calendar days),
processing requirements and when fees will be refunded, and how USCIS
will communicate the availability of premium processing to the public.
This rule communicates the mechanics and processes that USCIS has
deemed to be an efficient and practical way to manage and offer a
service to those willing to pay a premium to have their immigration
benefit requests processed in a more expeditious manner.

B. Executive Order 12866 (Regulatory Planning and Review) and Executive
Order 13563 (Improving Regulation and Regulatory Review)

Executive Order (E.O.) 12866 and E.O. 13563 direct agencies to
assess the costs and benefits of available regulatory alternatives and
to the extent permitted by law, to proceed if the benefits justify the
costs. They also direct agencies to select regulatory approaches that
maximize net benefits (including potential economic, environmental,
public health and safety effects, distributive impacts, and equity). In
particular, E.O. 13563 emphasizes the importance of quantifying both
costs and benefits, of reducing costs, of harmonizing rules, and of
promoting flexibility. The Office of Information and Regulatory Affairs
(OIRA), within the Office of Management and Budget (OMB), has
designated this final rule an economically significant regulatory
action under sec. 3(f)(1) of E.O. 12866. Accordingly, OIRA has reviewed
this regulation.
(1) Summary
The Continuing Appropriations Act, 2021 and Other Extensions Act,
signed into law on October 1, 2020, contained the Emergency Stopgap
USCIS Stabilization Act, which set new fees for premium processing of
immigration benefit requests that had been designated for premium
processing as of August 1, 2020, and expanded USCIS authority to
establish and collect new premium processing fees and to use those
additional funds for expanded purposes. The purpose of this rulemaking
is to amend DHS premium processing regulations for previously
designated benefit requests to codify those fees set by the USCIS
Stabilization Act in section 286(u)(3)(A) of the INA, 8 U.S.C.
1356(u)(3)(A), and to establish new immigration benefit requests
designated for premium processing under section 286(u)(3)(B) of the
INA, 8 U.S.C. 1356(u)(3)(B), consistent with those conditions and
eligibility requirements set forth by section 4102(b)(1) of the USCIS
Stabilization Act.
While DHS is able to assess the costs and benefits of premium
processing for the forms and classifications for which it is currently
available, it is more difficult to assess when DHS will be able to
expand the availability of premium processing to all of the newly
designated immigration benefit request types. Due to the statutory
requirement that the expansion of availability of premium processing
should not result in increased processing times for immigration benefit
requests not designated for premium processing or an increase in
regular processing of immigration benefit requests so designated, DHS
must first raise sufficient funds to ensure it has the staffing and
information technology (IT) resources to expand premium processing
availability to avoid such an increase to any processing times. The
current (non-premium) processing times for the newly designated
immigration benefit requests exceed the proposed premium processing
timeframes by many months, as expected.
DHS generally is unable to reallocate staff to adjudicate these
immigration benefit requests without adversely affecting processing
times for other immigration benefit requests. Therefore, DHS must hire
and train new staff with revenue from current premium processing
requests in order to expand expedited adjudication of premium
processing consistent with the statutory requirement that other
processing times not be adversely affected.
Furthermore, Section 3401 of the Stabilization Act authorizes USCIS
to use fee revenue for the following, competing purposes: To provide
premium processing services to requestors, to make infrastructure
improvements in adjudications processes and the provision of
information and services to immigration and naturalization benefit
requestors, to respond to adjudication demands, including by reducing
the number of pending immigration and naturalization benefit requests,
and to otherwise offset the cost of providing adjudication and
naturalization services. Prior to expansion, any revenues in excess of
costs generated by premium processing will be used to support other
authorized uses. Section 3402 of the Stabilization Act additionally
directs USCIS to provide a 5-year plan for improvements in electronic
filing, electronic payment, and electronic correspondence resulting in
improved processing times for all immigration and naturalization
benefit requests. In accordance with these authorizations and
directives, DHS has prioritized and is in the process of expanding
electronic filing for all applications and benefit requests. Some of
the immigration benefit requests newly designated for premium
processing are already filed electronically.\58\
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\58\ USCIS Forms Currently Available to File Online: https://www.uscis.gov/file-online/forms-available-to-file-online (last
updated Dec. 21, 2021). Of the forms impacted by this rule, USCIS
already provides electronic filing of certain Forms I-539 and I-765.
However, Form I-907 is not currently available for electronic
filing.
---------------------------------------------------------------------------

The expansion of electronic filing to application and benefit
requests is a prerequisite so that the premium processing form, Form I-
907, (which is not currently available electronically) could be filed
electronically with the benefit request form for which premium
processing is being requested. USCIS plans to encumber additional IT
resources needed to make the I-907 available for electronic filing
independent of this rule. USCIS intends to implement expansion of
premium processing availability of Forms I-539, I-765 and I-140 as soon
as feasible.

[[Page 18235]]

DHS plans on a phased implementation strategy to allow current premium
processing revenue to pay for development and implementation costs
associated with expanding availability of the service. DHS plans to
implement expansion for certain categories of Forms I-539, I-765 and
both of the new I-140 classifications in FY 2022. DHS estimates that it
will not be able to expand premium processing to the additional
categories of Forms I-539 and I-765 until FY 2025 due to the
possibility that premium processing revenues do not yet exist to cover
any potential costs of hiring additional staff to expand premium
processing to these additional categories without adversely affecting
other benefit's processing times, as directed by Congress. This is
explained in greater detail in the ``Government Costs'' section below.
The projected implementation plan will allow current premium processing
revenue to cover potential costs from the expedited processing of a
large volume of new requests.
For the 10-year implementation period of the rule if year one is FY
2021, DHS estimates the annualized cost to be $13 million discounted at
3 percent and $12 million discounted at 7 percent. These costs are from
the opportunity costs of time that newly eligible populations of Forms
I-140, I-539, and I-765 will incur to request premium processing.
For the 10-year implementation period of the rule, DHS estimates
the annualized transfer payments from the Form I-129 and Form I-140
fee-paying population, and from newly eligible classifications of Form
I-140 petitioners, Form I-539 applicants and Form I-765 applicants to
DHS to be $743 million discounted at 3 percent and $729 million
discounted at 7 percent due to the increase in filing fees.
This final rule benefits petitioners of Form I-140 (EB-1,
multinational executives and managers and EB-2, members of professions
with advanced degrees or exceptional ability seeking a national
interest waiver) who were previously ineligible for premium processing
to receive a quicker adjudication. This change benefits businesses that
previously would have had to wait longer to receive a decision (such as
a notice of approval) for an employee. It also benefits applicants of
Form I-539 who will have the option to receive a decision on their
request for a change of status or extension of stay sooner than before,
which may alleviate concern about lapses in their nonimmigrant status.
Applicants of Form I-765 would benefit through receipt of an
adjudicative decision in a specified timeframe making those applicants
eligible to work legally in the United States sooner than they would
have previously.
Table 1 provides a more detailed summary of the final rule
provisions and their impacts.

Table 1--Summary of Provisions and Impacts of the Final Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated benefits of
Final rule provisions Description of change to provision Estimated costs/transfers of provisions provisions
--------------------------------------------------------------------------------------------------------------------------------------------------------
Codify fee The Continuing Appropriations Quantitative: Petitioners-- Quantitative: Petitioners--
increases from the Act, 2021 and Other Extensions Act, Annual transfer payments of $306,448,000 from
Continuing expanded USCIS authority to establish Form I-129 petitioners to DHS from an increase in filing None.
Appropriations Act, and collect new premium processing fees fees in FY 2021. DHS/USCIS--
2021 and Other and to use those additional funds for Annual estimated transfer payments of None.
Extensions Act. expanded purposes. $295,113,180 from Form I-129 petitioners to DHS from a Qualitative: Petitioners--
Codifies existing premium projected increase in filing fees in FY 2022 through FY None.
processing fees and processing 2030. DHS/USCIS--
timeframes for certain classifications Annual transfer payments of $103,111,500 from The primary
requested on Form I-129 classifications Form I-140 petitioners to DHS from an increase in filing benefit of these
(E-1, E-2, E-3, H-1B, H-3, L-1A, L-1B, fees in FY 2021. provisions to DHS is the
LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P- Annual estimated transfer payments of opportunity to increase
3, P-3S, Q-1, TN-1, and TN-2) and Form $82,872,920 from Form I-140 petitioners to DHS from a revenue in order to make
I-140 classifications: EB-1 Aliens of projected increase in filing fees in FY 2022 through FY infrastructure
extraordinary ability, EB-1 Outstanding 2030. improvements and
professors and researchers, EB-2 DHS/USCIS-- processing times, among
Members of professions with advanced None. other purposes.
degrees or exceptional ability not Qualitative: Petitioners--
seeking a National Interest Waiver, EB- None.
3 Skilled workers, EB-3 Professionals, DHS/USCIS--
EB-3 Workers other than skilled workers None.
and professionals ($2,500/15 days).
Codifies existing premium
processing fees and processing
timeframes for certain classifications
requested on Form I-129 classifications
H-2B, R-1 ($1,500/15 days).
Expansion of Establishes a $2,500 premium Quantitative: Petitioners-- Quantitative: Petitioners--
premium processing to processing fee and 45-day processing Cost to petitioners completing and filing Form I-
Form I-140 timeframe for newly eligible Form I-140 907 requests will be approximately $2,934,568 annually None.
Classifications: E13, Classifications: EB-1, multinational in FY 2022 through FY 2030. DHS/USCIS--
E21 (NIW). executives and managers, and EB-2, Annual transfer payments of $94,427,500 from None.
members of professions with advanced newly eligible Form I-140 petitioners to DHS due to Qualitative: Petitioners--
degrees or exceptional ability seeking filing fees in FY 2022 through FY 2030. Petitioners
a national interest waiver. DHS/USCIS-- requesting benefit
None. requests that were not
Qualitative: Petitioners-- previously designated for
None. premium processing may
DHS/USCIS-- now be able to obtain
None. quicker adjudicative
action.
DHS/USCIS--
The primary
benefit of this provision
to DHS is the opportunity
to increase revenue in
order to make
infrastructure
improvements and
processing times, among
other purposes.

[[Page 18236]]

Expansion of Establishes a $1,750 premium Quantitative: Applicants-- Quantitative: Applicants--
premium processing to processing fee and 30-day processing Costs to F-1, F-2, J-1, J-2, M-1, M-2 None.
Form I-539 timeframe for newly eligible Form I-539 classification applicants completing and filing Form I- DHS/USCIS--
Classifications: E-1, Classifications: E-1, E-2, E-3, F-1, F- 907 requests are estimated to be $296,648 annually None.
E-2, E-3, F-1, F-2, H- 2, H-4, J-1, J-2, L-2, M-1, M-2, O-3, P- starting in FY 2022 through FY 2030. Qualitative: Applicants--
4, J-1, J-2, L-2, M-1, 4, R-2. Costs to E-1, E-2, E-3, L-2, H-4, O-3, P-4, R-2 Applicants
M-2, O-3, P-4, R-2. classification applicants completing and filing Form I- requesting benefit
907 requests are estimated to be $3,048,488 annually requests that were not
starting in FY 2025 through FY 2030. previously designated for
Total Costs to all Form I-539 applicants premium processing may
completing and filing Form I-907 requests are estimated now be able to obtain
to be $3,345,136 annually starting in FY 2025 through FY quicker adjudicative
2030. action.
Annual estimated transfer payments of DHS/USCIS--
$17,939,250 from Form I-539 F-1, F-2, J-1, J-2, M-1, M-2 The primary
classification applicants completing and filing Form I- benefit of this provision
907 requests to DHS from filing fees in FY 2022 through to DHS is the opportunity
FY 2030. to make infrastructure
improvements and
processing times, among
other purposes.
........................................ Annual estimated transfer payments of ..........................
$110,572,000 from Form I-539 E-1, E-2, E-3, L-2, H-4,
O-3, P-4, R-2 classification applicants completing
and filing Form I-907 requests to DHS from filing
fees starting in FY 2025 through FY 2030.
Total transfers from all Form I-539 applicants
completing and filing Form I-907 requests are estimated
to be $128,511,250 annually starting in FY 2025 through
FY 2030.
DHS/USCIS--
None.
Qualitative: Applicants--
None.
DHS/USCIS--
This final rule will require USCIS enhancements
to handle the projected volumes of expedited requests
without adverse impact to other processing times.
Expansion of Establishes a $1,500 premium Quantitative: Applicants-- Quantitative: Applicants--
premium processing to processing fee and 30-day processing Costs to some applicants completing and filing None.
Form I-765 Categories. timeframe for newly eligible Form I-765 Form I-907 requests are expected to be approximately DHS/USCIS--
Categories. $6,486,289 annually starting in FY 2022 through FY 2030 None.
for certain classifications. Qualitative: Applicants--
Costs to other applicants completing and filing Applicants
Form I-907 requests are expected to be approximately requesting benefit
$3,048,488 annually starting in FY 2025 through FY 2030 requests that were not
for certain classifications. previously designated for
premium processing will
now be able to obtain
quicker adjudicative
action making those
applicants eligible to
work legally in the
United States sooner than
they would have
previously.
DHS/USCIS--
The primary
benefit of this provision
to DHS is the opportunity
to make infrastructure
improvements and
processing times, among
other purposes.
Total Costs to all Form I-765 applicants ..........................
completing and filing Form I-907 requests are
estimated to be $9,534,777 annually starting in FY
2025 through FY 2030.
Annual estimated transfer payments of
$173,370,000 from some applicants completing and filing
Form I-907 requests to DHS from filing fees in FY 2022
through FY 2030.
Annual estimated transfer payments of
$81,483,000 from some applicants completing and filing
Form I-907 requests to DHS from filing fees starting in
FY 2025 through FY 2030.
Total transfers from all Form I-765 applicants
completing and filing Form I-907 requests are estimated
to be $254,853,000 annually starting in FY 2025 through
FY 2030.
DHS/USCIS--
None.
Qualitative: Applicants--
None.
DHS/USCIS--
This final rule will require USCIS enhancements
to handle the projected volumes of expedited requests
without adverse impact to other processing times.
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 18237]]

In addition to the impacts summarized above, and as required by OMB
Circular A-4, Table 2 presents the prepared accounting statement
showing the costs and benefits to each individual affected by this
final rule.\59\
---------------------------------------------------------------------------

\59\ White House, OMB, Circular A-4 (Sept. 17, 2003), available
at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf (last viewed June 1, 2021).

Table 2--OMB A-4 Accounting Statement
[$ millions, FY 2020]
----------------------------------------------------------------------------------------------------------------
Time Period: FY 2021 through FY 2030
-----------------------------------------------------------------------------------------------------------------
Category Primary estimate Minimum estimate Maximum estimate Source citation
----------------------------------------------------------------------------------------------------------------
BENEFITS
----------------------------------------------------------------------------------------------------------------
Monetized Benefits............ N/A Regulatory Impact
Analysis
(``RIA'').
----------------------------------------------------------------------------------------------------------------
Annualized quantified, but N/A N/A N/A RIA.
unmonetized, benefits.
----------------------------------------------------------------------------------------------------------------
Unquantified Benefits......... The USCIS Stabilization Act provides specific purposes that RIA.
the premium processing fees can be used for. Consistent with
those permissible purposes, the primary benefit of this rule
to DHS is the opportunity to increase revenue to provide the
premium processing services; make infrastructure improvements
in adjudications processes and information and services to
immigration and naturalization benefit requestors; and
respond to adjudication demands.
----------------------------------------------------------------------------------------------------------------
This final rule benefits petitioners of Form I-140 (EB-1, .................
multinational executives and managers and EB-2, members of
professions with advanced degrees or exceptional ability
seeking a national interest waiver) who were previously
ineligible for premium processing and may now have their
petitions reviewed quicker. As a result, an adjudicative
action may be taken more quickly. This change benefits
businesses that previously would have had to wait longer to
receive adjudicative action (such as a notice of approval)
for an employee. It also benefits applicants of Form I-539
would receive an adjudicative action on their request for a
change of status or extension of stay sooner than before,
which may alleviate concern about lapses in their
nonimmigrant status. Applicants of Form I-765 would benefit
through receipt of an adjudicative decision in a specified
timeframe making those applicants eligible to work legally in
the United States sooner than they would have previously.
----------------------------------------------------------------------------------------------------------------
COSTS
----------------------------------------------------------------------------------------------------------------
Annualized monetized costs $12.2 N/A N/A RIA.
(7%).
Annualized monetized costs $12.7 N/A N/A .................
(3%).
----------------------------------------------------------------------------------------------------------------
Annualized quantified, but N/A .................
unmonetized, costs.
----------------------------------------------------------------------------------------------------------------
Qualitative (unquantified) This final rule will require USCIS enhancements to handle the RIA.
costs. projected volumes of expedited requests without adverse
impact to other processing times. DHS must hire and train new
staff with revenue from current premium processing requests
in order to expand expedited adjudication of premium
processing consistent with the statutory requirement that
other processing times not be adversely affected. DHS does
not know how much it will cost to add new categories to apply
for premium processing, and these costs are unquantified. The
quantified transfers from Form I-129 and Form I-140
petitioners/applicants to DHS will result in higher revenue
collected by USCIS. USCIS anticipates this additional revenue
would cover any future expenditures required for staffing and
training purposes.
----------------------------------------------------------------------------------------------------------------
TRANSFERS
----------------------------------------------------------------------------------------------------------------
Annualized monetized transfers $729.3 N/A N/A .................
(7%).
Annualized monetized transfers $743.2 N/A N/A .................
(3%).
----------------------------------------------------------------------------------------------------------------
From whom to whom? From the fee-paying petitioners of Form I-129 and Form I-140 .................
to DHS.
----------------------------------------------------------------------------------------------------------------
From whom to whom? .................
----------------------------------------------------------------------------------------------------------------
Miscellaneous Analyses/ Effects Source Citation
Category
----------------------------------------------------------------------------------------------------------------
Effects on State, local, or None. RIA.
tribal governments.
----------------------------------------------------------------------------------------------------------------
Effects on small businesses... None. RIA.
----------------------------------------------------------------------------------------------------------------
Effects on wages.............. None. None.
----------------------------------------------------------------------------------------------------------------

[[Page 18238]]

Effects on growth............. None. None.
----------------------------------------------------------------------------------------------------------------

(2) Background
On October 1, 2020, the Continuing Appropriations Act, 2021 and
Other Extensions Act, which contained the USCIS Stabilization Act, was
signed into law.\60\ The USCIS Stabilization Act amended section 286(u)
of the INA, 8 U.S.C. 1356(u), to raise the premium processing fees for
immigration benefit types designated for premium processing on or
before August 1, 2020, and to expand the immigration benefit requests
that may be designated for premium processing service within prescribed
limitations, among other changes.\61\
---------------------------------------------------------------------------

\60\ See USCIS Stabilization Act, Public Law 116-159 (Oct. 1,
2020).
\61\ Id.
---------------------------------------------------------------------------

Through this rulemaking, DHS is amending DHS premium processing
regulations to codify those fees set by the USCIS Stabilization Act in
section 286(u)(3)(A) of the INA, 8 U.S.C. 1356(u)(3)(A), and to
establish new immigration benefit requests designated for premium
processing under section 286(u)(3)(B) of the INA, 8 U.S.C.
1356(u)(3)(B), consistent with those conditions and eligibility
requirements set forth by section 4102(b)(1) of the USCIS Stabilization
Act.\62\
---------------------------------------------------------------------------

\62\ Id.
---------------------------------------------------------------------------

(3) Population
USCIS' premium processing service currently allows petitioners to
pay an additional filing fee to expedite the adjudication of certain
employment-based immigration benefit requests. The Continuing
Appropriations Act, which included the USCIS Stabilization Act, set new
fees for the premium processing of immigration benefit requests
designated for premium processing as of August 1, 2020, and provided
authority to establish new immigration benefit requests designated for
premium processing and the associated fees.\63\ This final rule will
codify the new fees from the USCIS Stabilization Act into regulation
and impose costs related to the newly eligible population filing Form
I-907, Request for Premium Processing Service, for those immigration
benefit requests designated for premium processing by this rule.
---------------------------------------------------------------------------

\63\ Id.
---------------------------------------------------------------------------

Table 3 shows the estimated total receipts received and refunds
issued by USCIS for Form I-907 from fiscal year (``FY'') 2017 through
FY 2021. During this period, total annual receipts for Form I-907
ranged from a low of 307,981 in FY 2017 to a high of 412,836 in FY
2019. Based on a 5-year annual average, DHS estimates the annual
receipts for Form I-907 to be 365,521. In addition, the total number of
refunds issued for Form I-907 decreased to 151 in FY 2021 from a high
of 1,055 in FY 2017, with a 5-year annual average of 457 Form I-907
issued refunds. USCIS presents data on refunds issued by USCIS because
USCIS currently guarantees processing for these requests within 15 days
to petitioners who chose to pay the additional fee to request this
service. The 15-day period generally begins when USCIS properly
receives the correct version of Form I-907, Request for Premium
Processing Service, with fee, at the correct filing address. Within the
15-day period, USCIS will issue either an approval notice, denial
notice, notice of intent to deny, or request for evidence, or open an
investigation for fraud or misrepresentation. If the benefit request
requires the submission of additional evidence or a response to a
notice of intent to deny, a new 15-day period begins when USCIS
receives a complete response to the request for evidence or notice of
intent to deny. The premium processing fee is required to be paid in
addition to, and in a separate remittance from, other filing fees, and
cannot be waived. If USCIS did not take any of the above actions within
the 15-day processing service timeframe, USCIS refunds the premium
processing fee.
This rule allows USCIS up to 45-days for premium processing of Form
I-140 requesting EB-1 immigrant classification as a multinational
executive or manager or EB-2 immigrant classification as member of
professions with advanced degrees or exceptional ability seeking a
national interest waiver (NIW) and allows USCIS up to 30 days for
premium processing of Form I-539 and Form I-765. This change from the
standard premium processing timeframe of 15 days reduces the risk that
expansion of premium processing to new populations would result in a
disproportionate increase in refunds beyond the levels shown in Table
3. This expansion in timeframe will not result in longer wait times for
individuals requesting premium processing since the affected population
is only a relatively small percentage of people whose adjudication
would have required more time (0.1-percent) and therefore would have
been refunded. As a result of this final rule, USCIS refunds will not
increase for individuals requesting premium processing.

Table 3--Form I-907, Request for Premium Processing Service, Receipts and Refunds Issued, FY 2017 Through FY
2021
----------------------------------------------------------------------------------------------------------------
Form I-907 receipts Form I-907 refunds *
FY ----------------------------------------------------------------------------------
Form I-129 Form I-140 Total Form I-129 Form I-140 Total
----------------------------------------------------------------------------------------------------------------
2017......................... 236,499 71,482 307,981 968 87 1,055
2018......................... 292,294 78,215 370,509 123 101 224
2019......................... 333,160 79,676 412,836 255 48 303
2020......................... 276,052 64,264 340,316 499 51 550
2021......................... 300,200 97,275 397,475 42 109 151
----------------------------------------------------------------------------------

[[Page 18239]]

Total.................... 1,438,205 390,912 1,829,117 1,887 396 2,283
----------------------------------------------------------------------------------
5-year Average....... 287,641 78,182 365,823 377 79 457
----------------------------------------------------------------------------------------------------------------
Source: USCIS, OP&S PRD, CLAIMS3 and ELIS database, October 13, 2021.
Notes: * The report reflects the most up-to-date data available at the time the system was queried. Any
duplicate case information has been removed.

Table 4 shows the percentage of the eligible Form I-140 petitioners
who chose to submit a premium processing request from FY 2017 through
FY 2021. The following classifications are currently designated for
premium processing: EB-1 Aliens of extraordinary ability, EB-1
Outstanding professors and researchers, EB-2 Members of professions
with advanced degrees or exceptional ability not seeking a National
Interest Waiver, EB-3 Skilled workers, EB-3 Professionals, and EB-3
Workers other than skilled workers and professionals.\64\ Currently not
all Form I-140 petitioners are eligible for premium processing,
therefore DHS only discusses the percentage of those who are eligible
for premium processing compared to the total number of premium
processing requests submitted. The population in Table 3 consist of all
Form I-140 petitions that are submitted with a Form I-907. However, in
FY 2020 of the 64,264 receipts 35,367 were ineligible and 28,897 were
eligible. In FY 2020 there were 129,536 total receipts for Form I-140.
Of those 64,501 are currently ineligible and 65,035 are eligible for
premium processing. The 5-year annual average percentage of eligible
Form I-140 petitioners who chose to submit a premium processing request
was 52 percent. In FY 2021, there were significantly more Form I-140
petitions submitted compared to previous years; however, the percentage
of Form I-140 petitions filed with a Form I-907 has stayed consistent
over the past 5 years.
---------------------------------------------------------------------------

\64\ See ``How Do I Request Premium Processing?'' https://www.uscis.gov/forms/all-forms/how-do-i-request-premium-processing
(last updated Apr. 12, 2021).

Table 4--Form I-140 Receipts Eligible for Premium Processing, FY 2017 Through FY 2021
----------------------------------------------------------------------------------------------------------------
Total Form I-140
petitions eligible Total Form I-140 Percentage of Form I-
FY for premium petitions submitted 907 receipts
processing with Form I-907
----------------------------------------------------------------------------------------------------------------
2017.......................................... 60,255 32,674 54
2018.......................................... 62,266 35,875 58
2019.......................................... 70,218 34,898 50
2020.......................................... 65,035 28,897 44
2021.......................................... 112,070 58,359 52
-----------------------------------------------------------------
Total..................................... 369,844 190,703 ....................
-----------------------------------------------------------------
5-year Annual Average................. 73,969 38,141 52
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Policy and Strategy, Policy Research Division (PRD), CLAIMS3 and ELIS database, October
13, 2021.
Note: Form I-140 eligible petitioners include the following classifications are currently designated for premium
processing: EB-1 Aliens of extraordinary ability, EB-1 Outstanding professors and researchers, EB-2 Members of
professions with advanced degrees or exceptional ability not seeking a National Interest Waiver, EB-3 Skilled
workers, EB-3 Professionals, and EB-3 Workers other than skilled workers and professionals.

Table 5 shows the percentage of the eligible Form I-129 petitioners
who chose to submit a premium processing request along with their Form
I-129 petitions from FY 2017 through FY 2021. The 5-year annual average
percentage of eligible Form I-129 petitioners who choose to submit a
premium processing request was 53-percent.

Table 5--Form I-907, Request for Premium Processing Service, Filed With Form I-129, Petition for a Nonimmigrant
Worker, FY 2017 Through FY 2021
----------------------------------------------------------------------------------------------------------------
Total Form I-129 Percentage of Form I-
FY Total Form I-129 petitions submitted 907 receipts that
receipts with Form I-907 come with Form I-129
----------------------------------------------------------------------------------------------------------------
2017.......................................... 530,812 236,499 45
2018.......................................... 548,950 292,296 53
2019.......................................... 551,840 333,160 60
2020.......................................... 555,093 274,864 50
2021.......................................... 531,818 300,200 56
-----------------------------------------------------------------

[[Page 18240]]

Total..................................... 2,718,513 1,437,019 ....................
-----------------------------------------------------------------
5-year Annual Average................. 543,703 287,404 53
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Policy and Strategy, Policy Research Division (PRD), CLAIMS3 and ELIS database, October
13, 2021.

To estimate the probability that an eligible petitioner may choose
to request premium processing, DHS computes a ratio of the 5-year
annual average number of requests to the 5-year annual average number
of eligible petitioners. Table 6 shows that of those currently eligible
for premium processing, 53-percent chose to submit a premium processing
request. For purposes of this analysis, DHS assumes that demand rate
will carry forward and will use this percentage to estimate the
possible adoption volumes of the newly eligible Form I-539 and I-765
applicants.

Table 6--Percentage of Premium Processing Requests, FY 2017 Through FY 2021
----------------------------------------------------------------------------------------------------------------
5-year annual
average of Forms 5-year annual Percentage of Form I-
submitted with Form average of total 907 receipts
I-907 receipts by Form
----------------------------------------------------------------------------------------------------------------
Form I-140.................................... 38,141 73,969 52
Form I-129.................................... 287,404 543,703 53
-----------------------------------------------------------------
Total..................................... 325,545 617,672 53
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.

(4) Costs, Transfers, and Benefits of the Final Rule
(a) Form I-129, Petition for a Nonimmigrant Worker, Transfer Payments
Currently, petitioners requesting certain benefits on Form I-129,
Petition for a Nonimmigrant Worker, are eligible to also submit a
request for premium processing with their immigration benefit request.
Table 7 shows the population of petitioners who submitted Form I-907
with Form I-129 \65\ based on the corresponding nonimmigrant
classifications from FY 2017 through FY 2021. The USCIS Stabilization
Act increased the premium processing fees for Form I-129. The premium
processing fee for H-2B or R-1 nonimmigrant status was increased from
$1,440 to $1,500, an increase of $60, which represents a 4.2-percent
increase. The premium fee for all other available Form I-129
classifications (E-1, E-2, E-3, H-1B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-
1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, TN-1, and TN-2) was increased from
$1,440 to $2,500, and increase of $1,060, which represents a 73.6-
percent increase. Because the fee for premium processing for the Form
I-129 H-2B and R-1 classifications was increased by a different amount
than for all other Form I-129 classifications, the data for the Form I-
129 H-2B and R-1 classifications data was separated from the data for
all other classifications. During this period, total annual receipts
for Form I-907 with Form I-129 H-2B or R-1 classifications ranged from
a low of 7,067 in FY 2020 to a high of 11,764 in FY 2021. Based on a 5-
year annual average, DHS estimates the annual receipts from Form I-907
filed with Form I-129 H-2B or R-1 classifications to be 9,024.
---------------------------------------------------------------------------

\65\ See Instructions for Petition for Nonimmigrant Worker. Form
I-129. OMB No. 1615-0009 Expires Sept. 30, 2021. Accessed at https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf
(last updated Mar. 10, 2021).
---------------------------------------------------------------------------

During this period, total annual receipts for Form I-907 filed with
all other available Form I-129 classifications (E-1, E-2, E-3, H-1B, H-
3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, TN-
1, and TN-2) ranged from a low of 227,289 in FY 2017 to a high of
322,656 in FY 2019. Based on a 5-year annual average, DHS estimates the
annual receipts for Form I-907 associated with all other Forms I-129 to
be 287,404, which represents 78.6-percent of all filed Form I-907
receipts.\66\
---------------------------------------------------------------------------

\66\ Calculation: 287,404 Total I-129 Forms filed with an I-907
(See Table 5--Total Form I-129 Petitions submitted with Form I-907)
divided by 365,823 Total Form I-907 filed = 78.6 percent.

Table 7--Form I-907, Request for Premium Processing Service, Filed With Form I-129, Petition for a Nonimmigrant
Worker, FY 2017 Through FY 2021
----------------------------------------------------------------------------------------------------------------
Form I-129 all other
FY Form I-129 H-2B or R- visa request Total Form I-907
1 request receipts receipts * receipts
----------------------------------------------------------------------------------------------------------------
2017.......................................... 9,210 227,289 236,499
2018.......................................... 9,127 283,169 292,296
2019.......................................... 10,504 322,656 333,160
2020.......................................... 7,067 267,797 274,864

[[Page 18241]]

2021.......................................... 11,764 288,436 300,200
-----------------------------------------------------------------
Total..................................... 47,672 1,389,347 1,437,019
-----------------------------------------------------------------
5-year Annual Average................. 9,534 277,869 287,404
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Policy and Strategy, Policy Research Division (PRD), CLAIMS3 and ELIS database, October
13, 2021.
* Note: All other includes the following classifications: E-1, E-2, E-3, H-1B, H-2A, H-3, L-1A, L-1B, LZ, O-1, O-
2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, TN-1, and TN-2.
H-2B or R-1 equals 3.3% and All other I-129 equals 96.7%. of Total Form I-907 Receipts filed with a Form I-129
petition.

On October 1, 2020, the Continuing Appropriations Act, which
included the USCIS Stabilization Act, was signed into law. The USCIS
Stabilization Act set new fees for premium processing of immigration
benefit requests that had been designated for premium processing as of
August 1, 2020, and expanded DHS authority to establish and collect new
premium processing fees, and to use those additional funds for expanded
purposes.\67\ Table 7 shows that in FY 2021 when the fee was increased,
Form I-129 petitioners were still willing to pay for premium
processing. This provides suggestive evidence that petitioners' demand
for premium processing is insensitive to the price increases effected
by this rule. Consequently, projections of demand for expanded premium
processing presented in this analysis do not anticipate a quantifiable
price response.
---------------------------------------------------------------------------

\67\ See USCIS Stabilization Act, Public Law 116-159 (Oct. 1,
2020).
---------------------------------------------------------------------------

The fee for premium processing for those petitioners requesting H-
2B or R-1 nonimmigrant status was increased from $1,440 to $1,500, an
increase of $60, which represents a 4.2-percent increase.\68\ DHS
collected an additional $705,840 \69\ from the new, higher premium
processing fees associated with Form I-129 requests from the H-2B or R-
1 nonimmigrant status fee paying population in annual transfer payments
for FY 2021 to DHS. The fee for all other Form I-129 petitioners
requesting premium processing was increased from $1,440 to $2,500, an
increase of $1,060, which represents a 73.6- percent increase. DHS
collected an additional $305,742,160 \70\ in transfer payments from
premium processing requestors filing Form I-129 for all other visa
classifications to DHS in FY 2021. The total increase in transfer
payments from the Form I-129 fee-paying population to DHS in FY 2021
was $306,448,000 as shown in Table 8.
---------------------------------------------------------------------------

\68\ See id.; On October 16, 2020, USCIS issued a web alert
notifying the public that USCIS would increase fees for premium
processing, effective October 19, 2020, as required by the
Continuing Appropriations Act, 2021 and Other Extensions Act, Public
Law 116-159, signed into law on October 1, 2020. https://www.uscis.gov/news/premium-processing-fee-increase-effective-oct-19-2020 (last updated Oct. 16, 2020).
\69\ Calculation: 11,764 annual Form I-129 H-2B or R-1
applications * $60 ($1,500 fee-$1,440) = $705,840.
\70\ Calculation: 288,436 annual Form I-129 applications for
other than H-2B and R-1 status * $1,060 ($2,500 fee-$1,440) =
$305,742,160.

Table 8--Fees for Form I-907, Request for Premium Processing Service, Filed With Form I-129, Petition for a
Nonimmigrant Worker, FY 2021
----------------------------------------------------------------------------------------------------------------
Period of analysis FY 2021 Fee Total
----------------------------------------------------------------------------------------------------------------
Pre-Appropriations Act (Baseline Costs)..................... 11,764 $1,440 $16,940,160
Post-Appropriations Act..................................... 11,764 1,500 17,646,000
---------------------------------------------------
Change in Transfer Payments for Form I-129 H-2B or R-1.. .................. .............. 705,840
----------------------------------------------------------------------------------------------------------------
Pre-Appropriations Act (Baseline Costs)..................... 288,436 1,440 415,347,840
Post-Appropriations Act..................................... 288,436 2,500 721,090,000
---------------------------------------------------
Change in Transfer Payments for Form I-129 All Other *.. .................. .............. 305,742,160
---------------------------------------------------
Total Change in Transfer Payments for Form I-129 in .................. .............. 306,448,000
FY 2021............................................
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.
* Note: All other includes the following classifications (E-1, E-2, E-3, H-1B, H-2A, H-3, L-1A, L-1B, LZ, O-1, O-
2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, TN-1, and TN-2).

DHS estimates the new premium processing fees associated with Form
I-129 requests for H-2B or R-1 nonimmigrant status will result in
$572,040 \71\ in additional annual transfer payments from the Form I-
129 H-2B and R-1 fee-paying population to DHS. The fee for all other
Form I-129 petitioners requesting premium processing was increased from
$1,440 to $2,500, an increase of $1,060. DHS estimates increased annual
transfer payments from premium processing requestors filing Form I-129
for all other visa classifications to DHS will be $294,541,140 in FY
2022 through FY 2030.\72\ The total annual increased transfer payments
from the Form I-129 fee-paying population to DHS is $295,113,180 from a
projected increase in filing fees in FY 2022 through FY

[[Page 18242]]

2030, shown in Table 9. From a societal perspective, the opportunity
cost measures represent social costs, while the filing fees represent
transfers from applicants to the government.\73\
---------------------------------------------------------------------------

\71\ Calculation: 9,534 average annual Form I-129 H-2B or R-1
applications * $60 ($1,500 fee-$1,440) = $572,040.
\72\ Calculation: 277,869 average annual Form I-129 applications
for other than H-2B and R-1 status * $1,060 ($2,500 fee-$1,440) =
$294,541,140.
\73\ See Instructions for Petition for Nonimmigrant Worker. Form
I-129. OMB No. 1615-0009 Expires Sept. 30, 2021. Accessed at https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf
(last updated Mar. 10, 2021). The USCIS Stabilization Act did not
change the time burden to complete any of the classifications for
Form I-129, nor form fee. The public reporting burden for this
collection of information is in the form instructions.

Table 9--Fees for Form I-907, Request for Premium Processing Service, Filed With Form I-129, Petition for a
Nonimmigrant Worker, FY 2022 Through FY 2030
----------------------------------------------------------------------------------------------------------------
5-Year annual
Period of analysis average (FY 2017 Fee Total
through FY 2021)
----------------------------------------------------------------------------------------------------------------
Pre-Appropriations Act (Baseline Costs)..................... 9,534 $1,440 $13,728,960
Post-Appropriations Act..................................... 9,534 1,500 14,301,000
---------------------------------------------------
Annual Change in Transfer Payments for Form I-129 H-2B .................. .............. 572,040
or R-1.................................................
----------------------------------------------------------------------------------------------------------------
Pre-Appropriations Act (Baseline Costs)..................... 277,869 1,440 400,131,360
Post-Appropriations Act..................................... 277,869 2,500 694,672,500
---------------------------------------------------
Annual Change in Transfer Payments for Form I-129 All .................. .............. 294,541,140
Other *................................................
---------------------------------------------------
Total Annual Change in Transfer Payments for Form I- .................. .............. 295,113,180
907 in FY 2022 through FY 2030.....................
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.
* Note: All other includes the following classifications (E-1, E-2, E-3, H-1B, H-2A, H-3, L-1A, L-1B, LZ, O-1, O-
2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, TN-1, and TN-2).

(b) Form I-140, Immigrant Petition for Alien Workers, Transfer Payments
Table 10 shows the population of petitioners who submitted Form I-
907, Request for Premium Processing Service, with Form I-140, Immigrant
Petition for Alien Workers,\74\ based on the corresponding employment-
based (EB) classifications that are currently designated for premium
processing. The following classifications are currently designated for
premium processing: EB-1 Aliens of extraordinary ability (E11), EB-1
Outstanding professors and researchers (E12), EB-2 Members of
professions with advanced degrees or exceptional ability not seeking a
National Interest Waiver E21 (non-NIW), EB-3 Skilled workers (E31), EB-
3 Professionals (E32), and EB-3 Workers other than skilled workers and
professionals (EW3).\75\
---------------------------------------------------------------------------

\74\ See Instructions for Petition for Alien Workers. Form I-
140. OMB No. 1615-0015 Expires June 30, 2022. Accessed at https://www.uscis.gov/sites/default/files/document/forms/i-140instr.pdf
(last updated Sep. 30, 2020).
\75\ See ``How Do I Request Premium Processing?'' https://www.uscis.gov/forms/all-forms/how-do-i-request-premium-processing
(last updated Apr. 12, 2021).
---------------------------------------------------------------------------

Table 10 also shows the number of Form I-140 receipts filed with
Form G-28, Notice of Entry of Appearance as Attorney or Accredited
Representative (Form G-28) from FY 2017 through FY 2021. The number of
Form G-28 submissions allows USCIS to estimate the cost of time for a
petitioner or representative to file each form, which is addressed in
the next section of this analysis. During FY 2017 through FY 2021,
total annual receipts from Form I-907 filed with Form I-140 ranged from
a low of 57,969 in FY 2020 to a high of 88,109 in FY 2021. Based on a
5-year annual average, DHS estimates the annual receipts of Form I-907
filed with Form I-140 to be 71,569.

Table 10--Form I-907, Request for Premium Processing Service Filed With Form I-140, Immigrant Petition for Alien
Workers and the Number of Forms G-28 Filed With Those Forms I-907, FY 2017 Through FY 2021
----------------------------------------------------------------------------------------------------------------
Percentage of Forms
I-140 requesting
Form I-907 receipts Form G-28 receipts premium processing
FY received with a Form received with a Form and filed by an
I-140 I-140 and Form I-907 attorney or other
representative (Form
G-28)
----------------------------------------------------------------------------------------------------------------
2017.......................................... 71,482 65,453 92
2018.......................................... 78,215 73,168 94
2019.......................................... 79,676 73,144 92
2020.......................................... 64,264 57,969 90
2021.......................................... 97,275 88,109 91
-----------------------------------------------------------------
Total..................................... 390,912 357,843 ....................
-----------------------------------------------------------------
5-year Annual Average................. 78,182 71,569 92
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Policy and Strategy, Policy Research Division (PRD), CLAIMS3 and ELIS database, October
13, 2021.

[[Page 18243]]

Effective October 1, 2020, the USCIS Stabilization Act increased
the fee for premium processing of all designated classifications
(Classifications: E11, E12, E21 (non-NIW), E31, E32, EW3) available
with Form I-140, from $1,440 to $2,500, an increase of $1,060.\76\
---------------------------------------------------------------------------

\76\ See USCIS Stabilization Act; On October 16, 2020, USCIS
issued a web alert notifying the public that USCIS would increase
fees for premium processing, effective October 19, 2020, as required
by the Continuing Appropriations Act, 2021 and Other Extensions Act,
Public Law 116-159, signed into law on October 1, 2020. https://www.uscis.gov/news/premium-processing-fee-increase-effective-oct-19-2020 (last updated Oct. 16, 2020).
---------------------------------------------------------------------------

Using the population from FY 2021 of 97,275 applicants, DHS
estimates that as a result of the fee increase the additional premium
processing annual transfer payments from the Form I-140 fee-paying
population to DHS was $103,111,500 in FY 2021, shown in Table 11.
Consistent with demand for Form I-129 premium processing, DHS observed
an increase in premium processing requests associated with Form I-140
in FY 2021 following implementation of the fee increase. This
corroborates the agency's experience that requestors are insensitive to
the price increases effected by this rule, and will continue to file
for premium processing.

Table 11--Fees for Form I-907, Request for Premium Processing Service, Currently Filed With Form I-140,
Immigrant Petition for Alien Workers *
----------------------------------------------------------------------------------------------------------------
Period of analysis FY 2021 Fee Total
----------------------------------------------------------------------------------------------------------------
Pre-Appropriations Act (Baseline Costs)..................... 97,275 $1,440 $140,076,000
Post-Appropriations Act..................................... 97,275 2,500 243,187,500
---------------------------------------------------
Total Transfer Payments................................. .................. .............. 103,111,500
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.
* Note: Classifications: E11, E12, E21 (non-NIW), E31, E32, EW3.

Using the historical 5-year annual average from FY 2017 through FY
2021 of 78,182 applicants, DHS estimates that as a result of the
increase in filing fees for premium processing the additional annual
transfer payments from the Form I-140 fee-paying population to DHS will
be $82,872,920 a projected in FY 2022 through FY 2030 shown in Table
12. From a societal perspective, the opportunity cost measures
represent social costs, while the filing fees represent transfers from
applicants to the government.\77\
---------------------------------------------------------------------------

\77\ See Instructions for Petition for Alien Workers. Form I-
140. OMB No. 1615-0015 Expires June 30, 2022. Accessed at https://www.uscis.gov/sites/default/files/document/forms/i-140instr.pdf
(last updated Sep. 30, 2020). The USCIS Stabilization Act did not
change the time burden to complete any of the classifications for
Form I-140, nor form fee. The public reporting burden for this
collection of information is in the form instructions.

Table 12--Fees for Form I-907, Request for Premium Processing Service, Currently Filed With Form I-140,
Immigrant Petition for Alien Workers *
----------------------------------------------------------------------------------------------------------------
5-Year annual
Period of Analysis average (FY 2017 Fee Total
through FY 2021)
----------------------------------------------------------------------------------------------------------------
Pre-Appropriations Act (Baseline Costs)..................... 78,182 $1,440 $112,582,080
Post-Appropriations Act..................................... 78,182 2,500 195,455,000
---------------------------------------------------
Total Transfer Payments................................. .................. .............. 82,872,920
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.
* Note: Classifications: E11, E12, E21 (non-NIW), E31, E32, EW3.

This final rule allows USCIS 45-days for premium processing of
currently eligible Form I-140 requests, instead of the existing 15-day
timeframe. While USCIS is unable to determine how many of the 79 Form
I-140 premium processing refunds issued under the 15-day timeframe
(Table 3) would be able to have their Request for Premium Processing
completed as a result of this change, this would result in a reduction
of the expected transfer of refunded revenues from the government, back
to those petitioners.
(c) Form I-140, Immigrant Petition for Alien Workers Newly Eligible
Population, Costs & Transfer Payments
The following classifications are currently designated for premium
processing: EB-1 Aliens of extraordinary ability, EB-1 Outstanding
professors and researchers, EB-2 Members of professions with advanced
degrees or exceptional ability not seeking a National Interest Waiver,
EB-3 Skilled workers, EB-3 Professionals, EB-3 Workers other than
skilled workers and professionals.\78\ In this final rule, DHS is
adding two new employment-based classifications that will be designated
for premium processing when filing Form I-140. DHS is including EB-1,
multinational executives and managers, and EB-2, members of professions
with advanced degrees or exceptional ability seeking a national
interest waiver. Petitioners of Form I-140 (EB-1, multinational
executives and managers and EB-2, members of professions with advanced
degrees or exceptional ability seeking a national interest waiver) who
were previously ineligible for premium processing may be able to have
their petitions reviewed more quickly. As a result, an adjudicative
action may be taken more quickly. This change will come at a cost of
time and money for this new population.
---------------------------------------------------------------------------

\78\ See ``How Do I Request Premium Processing?'' https://www.uscis.gov/forms/all-forms/how-do-i-request-premium-processing
(last updated Apr. 12, 2021).
---------------------------------------------------------------------------

Table 13 shows the total receipts received for Form I-140 EB-1,

[[Page 18244]]

multinational executives, and managers, and Form I-140 EB-2, members of
professions with advanced degrees or exceptional ability seeking a
national interest waiver for FY 2017 through FY 2021. During this
period, total annual receipts for Form I-140 with these classifications
ranged from a low of 64,501 in FY 2020 to a high of 79,135 in FY 2017.
Based on a 5-year annual average, DHS estimates the annual receipts for
Form I-140 with these two classifications to be 72,637.

Table 13--Form I-140, Immigrant Petition for Alien Workers, Receipts by Classification, FY 2017 Through FY 2021
----------------------------------------------------------------------------------------------------------------
EB-2, members of
professions with
EB-1, multinational advanced degrees or
FY executives, and exceptional ability Total
managers receipts seeking a national
interest waiver
receipts
----------------------------------------------------------------------------------------------------------------
2017................................................ 16,708 62,427 79,135
2018................................................ 13,595 61,652 75,247
2019................................................ 12,492 65,711 78,203
2020................................................ 11,222 53,279 64,501
2021................................................ 10,182 55,916 66,098
-----------------------------------------------------------
Total........................................... 64,199 298,985 363,184
-----------------------------------------------------------
5-year Annual Average....................... 12,840 59,797 72,637
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Policy and Strategy, Policy Research Division (PRD), CLAIMS3 and ELIS database, October
13, 2021.

DHS recognizes that not all eligible petitioners will submit a
premium processing request, and therefore, DHS uses the current
percentage of premium processing requests compared to the number of
total receipts from the currently eligible population, 52- percent, as
a proxy of the number of newly eligible petitioners that will submit a
premium processing request with Form I-140. DHS estimates 37,771
petitioners (52 percent of the newly eligible population of 72,637)
would submit a premium processing request with their I-140 petition, as
shown in Table 14.

Table 14--Estimated of Premium Processing Requests for Newly Eligible
Form I-140, Immigrant Petition for Alien Workers
------------------------------------------------------------------------
Percent of total newly eligible Newly eligible Form I-140
Form I-140 petitioners petitioners
------------------------------------------------------------------------
52 37,771
------------------------------------------------------------------------
Source: USCIS Analysis.

Petitioners who file Form I-140 with a Form G-28 would use a lawyer
or accredited representative to complete any related immigration
benefit requests or forms. Based on the data from Table 10, 92 percent
of Form I-140 petitions were filed with a Form G-28, while the
remaining 8 percent of Form I-140 petitions are filed without a Form G-
28.\79\ Table 15 shows the total estimated population of petitioners
who would choose to file Form I-140 requesting premium processing with
an in-house or outsourced lawyer using a Form G-28 \80\ and the total
estimated population of petitioners who would file Form I-140
requesting premium processing with a Human Resources Specialist.
---------------------------------------------------------------------------

\79\ Calculation: 100 percent-92 percent filing with Form G-28 =
8 percent only filing Form I-140.
\80\ DHS uses an outsourced lawyer recognizing that not all
entities will have in-house counsel and may need to hire outside
counsel.

Table 15--Estimated Newly Eligible Form I-140, Immigrant Petition for Alien Workers, Populations With and
Without Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative
----------------------------------------------------------------------------------------------------------------
Estimated Form I-140
requesting premium Estimated Form I-140
processing filed by an requesting premium
Percent attorney or other processing filed by an Total
representative (Form G- HR specialist (8% of
28) (92% of 37,771) 37,771)
----------------------------------------------------------------------------------------------------------------
Population of Newly Eligible Form I- 34,749 3,022 37,771
140 Petitioners filing for Premium
Processing by Filer Type (52%)......
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.

[[Page 18245]]

In order to estimate the opportunity costs of time for completing
and filing Form I-907, DHS assumes that a petitioner will use a human
resources (HR) specialist, an in-house lawyer, or an outsourced lawyer
to prepare Form I-907 petitions.\81\ DHS uses the mean hourly wage of
$33.38 for HR specialists to estimate the opportunity cost of the time
for preparing and submitting Form I-907.\82\ Additionally, DHS uses the
mean hourly wage of $71.59 for in-house lawyers to estimate the
opportunity cost of the time for preparing and submitting Form I-
140.\83\
---------------------------------------------------------------------------

\81\ USCIS limited its analysis to HR specialists, in-house
lawyers, and outsourced lawyers to present estimated costs. However,
USCIS understands that not all entities employ individuals with
these occupations and, therefore, recognizes equivalent occupations
may also prepare and file these petitions.
\82\ See Bureau of Labor Statistics, U.S. Department of Labor,
``Occupational Employment Statistics, May 2020, Human Resources
Specialist.'' Available at https://www.bls.gov/oes/2020/may/oes131071.htm. Accessed April 13, 2021.
\83\ See Bureau of Labor Statistics, U.S. Department of Labor,
``Occupational Employment Statistics, May 2020, Lawyers.'' Available
at https://www.bls.gov/oes/2020/may/oes231011.htm. Accessed April
13, 2021.
---------------------------------------------------------------------------

DHS accounts for worker benefits when estimating the total costs of
compensation by calculating a benefits-to-wage multiplier using the
U.S. Department of Labor, BLS report detailing the average employer
costs for employee compensation for all civilian workers in major
occupational groups and industries. DHS estimates that the benefits-to-
wage multiplier is 1.45 and, therefore, is able to estimate the full
opportunity cost per petitioner, including employee wages and salaries
and the full cost of benefits such as paid leave, insurance,
retirement, etc.\84\ DHS multiplied the average hourly U.S. wage rate
for HR specialists and in-house lawyers by 1.45 to account for the full
cost of employee benefits, for a total of $48.40 \85\ per hour for an
HR specialist and $103.81 \86\ per hour for an in-house lawyer. DHS
recognizes that a firm may choose, but is not required, to outsource
the preparation of these petitions and, therefore, presents two wage
rates for lawyers. To determine the full opportunity costs of time if a
firm hired an outsourced lawyer, DHS multiplied the average hourly U.S.
wage rate for lawyers by 2.5 for a total of $178.98 \87\ to approximate
an hourly wage rate for an outsourced lawyer \88\ to prepare and submit
Form I-907.\89\
---------------------------------------------------------------------------

\84\ The benefits-to-wage multiplier is calculated as follows:
(Total Employee Compensation per hour)/(Wages and Salaries per hour)
($38.60 Total Employee Compensation per hour)/($26.53 Wages and
Salaries per hour) = 1.454964 = 1.45 (rounded). See U.S. Department
of Labor, Bureau of Labor Statistics, Economic News Release,
Employer Cost for Employee Compensation (December 2020), Table 1.
Employer Costs for Employee Compensation by ownership (Dec. 2020),
available at https://www.bls.gov/news.release/archives/ecec_03182021.htm. (last visited March. 31, 2021). The ECEC measures
the average cost to employers for wages and salaries and benefits
per employee hour worked.
\85\ Calculation: $33.38 * 1.45 = $48.40 total wage rate for HR
specialist.
\86\ Calculation: $71.59 * 1.45 = $103.81 total wage rate for
in-house lawyer.
\87\ Calculation: $71.59 * 2.5 = $178.98 total wage rate for an
outsourced lawyer.
\88\ The DHS analysis in, ``Exercise of Time-Limited Authority
to Increase the Fiscal Year 2018 Numerical Limitation for the H-2B
Temporary Nonagricultural Worker Program'' (83 FR 24905, May 31,
2018), available at https://www.federalregister.gov/documents/2018/05/31/2018-11732/exercise-of-time-limited-authority-to-increase-the-fiscal-year-2018-numerical-limitation-for-the, used a multiplier of
2.5 to convert in-house attorney wages to the cost of outsourced
attorney wages.
The DHS ICE rule, ``Final Small Entity Impact Analysis: Safe-
Harbor Procedures for Employers Who Receive a No-Match Letter'' at
G-4 (Aug. 25, 2008), available at https://www.regulations.gov/document/ICEB-2006-0004-0922 also uses a multiplier. The methodology
used in the Final Small Entity Impact Analysis remains sound for
using 2.5 as a multiplier for outsourced labor wages in this rule,
pages 143-144.
\89\ The DHS analysis in, ``Exercise of Time-Limited Authority
to Increase the Fiscal Year 2018 Numerical Limitation for the H-2B
Temporary Nonagricultural Worker Program'' (83 FR 24905, May 31,
2018), available at https://www.federalregister.gov/documents/2018/05/31/2018-11732/exercise-of-time-limited-authority-to-increase-the-fiscal-year-2018-numerical-limitation-for-the, used a multiplier of
2.5 to convert in-house attorney wages to the cost of outsourced
attorney wages.
Also, the analysis for a DHS ICE rule, ``Final Small Entity
Impact Analysis: Safe-Harbor Procedures for Employers Who Receive a
No-Match Letter'' at G-4 (Aug. 25, 2008), available at https://www.regulations.gov/document/ICEB-2006-0004-0922 used a multiplier.
The methodology used in the Final Small Entity Impact Analysis
remains sound for using 2.5 as a multiplier for outsourced labor
wages in this rule, pages 143-144.
---------------------------------------------------------------------------

To estimate the opportunity cost of time to complete and file Form
I-907, DHS applies the estimated time burden (0.58 hours) to the newly
eligible population and compensation rates of those who may file with
or without a lawyer.\90\ Table 16 shows the estimated annual
opportunity cost of time for newly eligible Form I-140 petitioners
employing an in-house or outsourced lawyer to complete and file Form I-
907 requests. DHS does not know the exact number of petitioners who
will choose an in-house or an outsourced lawyer, but assumes it may be
a 50/50 split and therefore provides an average. These opportunity
costs of time for Form I-140 petitioners who request premium processing
using an attorney or other representative are estimated to range from
$2,092,230 to $3,607,238 with an average of $2,849,734.
---------------------------------------------------------------------------

\90\ See Instructions for Request for Premium Processing
Service. Form I-907. OMB No. 1615-0048 Expires July 31, 2022.
Accessed at https://www.uscis.gov/sites/default/files/document/forms/i-907instr.pdf (last updated Sep. 30, 2020).

Table 16--Average Opportunity Costs of Time to Newly Eligible Form I-140 Petitioners Requesting Premium
Processing Filing With an Attorney or Other Representative
----------------------------------------------------------------------------------------------------------------
Newly eligible
population of Time burden to
petitioners complete Form Cost of time Total opportunity
filing with a I-907 (hours) cost
lawyer
A B C D = (A x B x C)
----------------------------------------------------------------------------------------------------------------
In House Lawyer ($103.81/hr.)............... 34,749 0.58 $103.81 $2,092,230
Outsourced Lawyer ($178.98/hr.)............. 34,749 0.58 178.98 3,607,238
-------------------------------------------------------------------
Average................................. ............... .............. .............. 2,849,734
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.

To estimate the remaining opportunity cost of time for a HR
specialist filing Form I-907 without a lawyer, DHS applies the
estimated public reporting time burden (0.58 hours) to the compensation
rate of an HR specialist. For those newly eligible, shown in Table 17,
DHS estimates the total annual opportunity cost of time to HR
specialists completing and filing Form I-907 requests will be
approximately $84,834.

[[Page 18246]]

Table 17--Opportunity Costs of Time to Newly Eligible Form I-140 Petitioners for Filing Form I-907, Request for
Premium Processing Service Without an Attorney or Accredited Representative
----------------------------------------------------------------------------------------------------------------
HR specialist's
Newly eligible Time burden to opportunity Total opportunity
population complete Form I- cost of time cost of time
907 (hours) (48.40/hr.)
A B C D = (A x B x C)
----------------------------------------------------------------------------------------------------------------
Estimate of Eligible Form I-140 3,022 0.58 $48.40 $84,834
Petitions (52%)........................
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.

The costs to the petitioners newly eligible to file Form I-907 with
a Form I-140 as a result of this rule is estimated to be $2,934,568, as
shown Table 18. From a societal perspective, the opportunity cost
measures represent social costs, while the filing fees represent
transfers from applicants to the government.\91\
---------------------------------------------------------------------------

\91\ See Instructions for Petition for Alien Workers. Form I-
140. OMB No. 1615-0015 Expires June 30, 2022. Accessed at https://www.uscis.gov/sites/default/files/document/forms/i-140instr.pdf
(last updated Sep. 30, 2020). The USCIS Stabilization Act did not
change the time burden to complete any of the classifications for
Form I-140, nor form fee. The public reporting burden for this
collection of information is in form instructions.

Table 18--Total Costs to Newly Eligible Form I-140 Petitioners for Filing Form I-907, Request for Premium
Processing Service
----------------------------------------------------------------------------------------------------------------
Opportunity cost of Opportunity cost of
time to complete and to time to complete and
file Form I-907 file Form I-907 (HR Total cost
(lawyers), Table 16 specialists), Table 17
A B D = (A + B + C)
----------------------------------------------------------------------------------------------------------------
Estimate of Eligible Form I-140 $2,849,734 $84,834 $2,934,568
Petitions (52%)........................
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.

In Table 19, DHS estimates that as a result of the increase in
filing fees for Form I-907, Request for Premium Processing Service, the
additional annual transfer payments from the new Form I-140 fee-paying
population to DHS will be $94,427,500.

Table 19--New Filing Fees to Form I-140 Petitioners for Filing Form I-907, Request for Premium Processing
Service
----------------------------------------------------------------------------------------------------------------
Newly eligible New filing fees for Total filing fees
population Form I-907 from Form I-907
A B C = (B x A)
----------------------------------------------------------------------------------------------------------------
Estimate of Eligible Form I-140 37,771 $2,500 $94,427,500
Petitions (52%)........................
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.

(d) Form I-539, Application To Extend/Change Nonimmigrant Status, Costs
& Transfer Payments
In this final rule, DHS is now adding Form I-539, Application to
Extend/Change Nonimmigrant Status, to the types of immigration benefit
requests that are eligible for premium processing. While Form I-539 is
used for many nonimmigrants categories who may apply for an extension
of stay or a change of status, premium processing will now be extended
to Form I-539 requestors changing status to F-1, F-2, J-1, J-2, M-1, or
M-2 nonimmigrant status or a change of status or extension of stay in
E-1, E-2, E-3, H-4, L-2, O-3, P-4, or R-2 nonimmigrant status.
Table 20 shows the total receipts received for Form I-539 for FY
2017 through FY 2021 and the number of Form I-539 receipts filed with
an attorney or accredited representative using Form G-28. The number of
Form G-28 submissions allows USCIS to estimate the numbers of forms
that are filed by an attorney or accredited representative. This in
turn, allows USCIS to estimate the opportunity cost of time depending
on the type of filer. During this period, total annual receipts for
Form I-539 ranged from a low of 227,120 in FY 2019 to a high of 441,920
in FY 2020. Based on a 5-year annual average, DHS estimates the annual
receipts for Form I-539 to be 284,345, with 49 percent of Forms I-539
being filed by an attorney or accredited representative.

[[Page 18247]]

Table 20--USCIS Receipts of Form I-539, Application To Extend/Change Nonimmigrant Status, With the Number of G-
28, Notice of Entry of Appearance as Attorney or Accredited Representative, Received, FY 2017 Through FY 2021
----------------------------------------------------------------------------------------------------------------
Percentage of
Forms I-539
FY Receipts Form G-28 filed with
Form G-28
----------------------------------------------------------------------------------------------------------------
2017............................................................ 233,306 121,855 52
2018............................................................ 233,437 130,654 56
2019............................................................ 227,120 130,435 57
2020............................................................ 441,920 166,298 38
2021............................................................ 285,941 148,779 52
-----------------------------------------------
Total....................................................... 1,421,724 698,021 49
-----------------------------------------------
5-year Annual Average................................... 284,345 139,604 49
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Policy and Strategy, Policy Research Division (PRD), CLAIMS3 and ELIS database, October
13, 2021.

DHS does not know how many newly eligible Form I-539 applicants
will choose to submit a premium processing request since this
population has not previously been eligible to file for premium
processing. DHS recognizes that not all eligible petitioners will
submit a premium processing request. Table 21 shows the 5-year annual
average for the classifications that are now eligible for premium
processing along with the number of forms that are filed with a Form G-
28 for FY 2017 through FY 2021. Overall, 49 percent \92\ of Form I-539
applications will now be eligible for premium processing. Form I-539 F-
1, F-2, J-1, J-2, M-1, M-2 classifications account for 14 percent \93\
of the newly eligible population and are students and exchange
visitors. Form I-539 E-1, E-2, E-3, L-2, H-4, O-3, P-4, R-2
classifications are employment visas and account for the remaining 86
percent \94\ of the newly eligible population of Form I-539 filers.
---------------------------------------------------------------------------

\92\ Calculation: 5-year Annual Average Total Newly Eligible
Form I-539 applicants/5-year Annual Average of Total Form I-539
Receipts = 138,557 (Table 21)/284,345 (Table 20) = 49%.
\93\ Calculation: F, J, and M Total/Total of all Classifications
= 96,708/692,785 = 14%.
\94\ Calculation: All Other Total/Total of all Classifications =
596,077/692,785 = 86%.

Table 21--USCIS 5-Year Annual Average of Form I-539 Receipts, Application To Extend/Change Nonimmigrant Status
by Classification and File With or Without a Form G-28, FY 2017 Through FY 2021
----------------------------------------------------------------------------------------------------------------
Form I-539 Form I-539
Form I-539 classifications filed with filed without Total Form I-539
Form G-28 Form G-28 receipts
----------------------------------------------------------------------------------------------------------------
F-1.......................................................... 22,180 55,680 77,860
F-2.......................................................... 2,640 6,161 8,801
J-1.......................................................... 209 1,033 1,242
J-2.......................................................... 132 529 661
M-1.......................................................... 333 7,773 8,106
M-2.......................................................... 14 24 38
--------------------------------------------------
F-1, F-2, J-1, J-2, M-1, M-2 Total....................... 25,508 71,200 96,708
----------------------------------------------------------------------------------------------------------------
E-1.......................................................... 601 99 700
E-2.......................................................... 10,985 1,966 12,951
E-3.......................................................... 2,340 417 2,757
H-4.......................................................... 372,202 131,452 503,654
L-2.......................................................... 53,545 7,617 61,162
O-3.......................................................... 6,825 1,004 7,829
P-4.......................................................... 875 443 1,318
R-2.......................................................... 4,470 1,236 5,706
--------------------------------------------------
E-1, E-2, E-3, L-2, H-4, O-3, P-4, R-2 Total............. 451,843 144,234 596,077
--------------------------------------------------
Total of all Classifications............................. 477,351 215,434 692,785
--------------------------------------------------
5-year Annual Average of all Classifications......... 95,470 43,087 138,557
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Policy and Strategy, Policy Research Division (PRD), CLAIMS3 and ELIS database, October
13, 2021.

Table 21 shows that of the 138,557 newly eligible applicants, DHS
calculated that 19,342 would be applying for F-1, F-2, J-1, J-2, M-1,
M-2 classifications (14%), and the remaining 119,215 would be applying
for E-1, E-2, E-3, L-2, H-4, O-3, P-4, R-2 classifications (86%). Since
Form I-539 applicants have never been eligible to request premium
processing, DHS has no historical data to determine how many of the
newly eligible population

[[Page 18248]]

will take advantage of premium processing. Therefore, DHS uses the 53
percent average of Forms I-129 and I-140 that request premium
processing for this newly eligible population as a proxy.
Of the 19,342 newly eligible applicants for F-1, F-2, J-1, J-2, M-
1, M-2 classifications, DHS estimates that 10,251 applicants (53
percent of the eligible population) may submit a premium processing
request along with their Form I-539 application. Of the 119,215 newly
eligible applicants for E-1, E-2, E-3, L-2, H-4, O-3, P-4, R-2
classifications, DHS estimates that 63,184 applicants (53 percent of
the eligible population) may submit a premium processing request along
with their Form I-539 application as shown in Table 22. DHS is planning
to begin accepting premium processing requests from F-1, F-2, J-1, J-2,
M-1, M-2 classifications beginning in FY 2022. DHS anticipates
accepting premium processing requests from E-1, E-2, E-3, L-2, H-4, O-
3, P-4, R-2 classifications by FY 2025.

Table 22--Estimated USCIS 5-Year Annual Average Form I-539, Application To Extend/Change Nonimmigrant Status,
Populations Filed With and Without Form G-28 Notice of Entry of Appearance as Attorney or Accredited
Representative, FY 2017 Through FY 2021
----------------------------------------------------------------------------------------------------------------
Estimated Form
Estimated Form I-539 filed
Classification type I-539 filed without Form G- Total
with Form G-28 28
----------------------------------------------------------------------------------------------------------------
F-1, F-2, J-1, J-2, M-1, M-2 classifications.................. 2,704 7,547 10,251
E-1, E-2, E-3, L-2, H-4, O-3, P-4, R-2 classifications........ 47,895 15,289 63,184
-------------------------------------------------
Total..................................................... 50,599 22,836 73,435
----------------------------------------------------------------------------------------------------------------
Source: U.S. Citizenship and Immigration Services, Office of Performance and Quality, C3 Consolidated via SAS,
queried October 13, 2021.

In order to estimate the opportunity costs of time for completing
and filing Form I-907, DHS assumes that an applicant will use an in-
house or outsourced lawyer or will prepare Form I-907 request
themselves. Many of the individuals using Form I-539 F-1, F-2, J-1, J-
2, M-1, M-2 classifications may file forms on their own because they
are students, professors, research scholars, trainees or interns,
teachers, camp counselors, au pairs, and summer work travel exchange
visitors, and may not choose to hire a lawyer.\95\ Table 22 shows the
total population of applicants who chose to file Form I-539 with and
without an attorney or accredited representative using Form G-28 by
classification.
---------------------------------------------------------------------------

\95\ USCIS recognizes that professors, teachers, and research
scholars in the J-1 and J-2 visa categories may not hire lawyers and
may not file these forms themselves. USCIS recognizes that these
forms may be filed by an HR Specialist or some other equivalent
occupation at the sponsoring entity on behalf of these applicants.
However, for the simplicity of this analysis, USCIS includes these
categories as filing themselves which may result in a slight
underestimation in the opportunity costs of time for the J category.
---------------------------------------------------------------------------

To estimate the new opportunity cost of time for Form I-539
applicants to file Form I-907, DHS applies the estimated time burden
(0.58 hours) \96\ of Form I-907 to the newly eligible population and
compensation rates of who may file, with or without a lawyer. For newly
eligible applicants of Form I-539, Table 23 shows the estimated annual
opportunity cost of time to applicants who use an in-house or
outsourced lawyer to complete and file Form I-907 requests of
$4,149,578.
---------------------------------------------------------------------------

\96\ See Instructions for Request for Premium Processing
Service. Form I-907. OMB No. 1615-0048 Expires July 31, 2022.
Accessed at https://www.uscis.gov/sites/default/files/document/forms/i-907instr.pdf (last updated Sep. 30, 2020).

Table 23--Opportunity Costs of Time to Form I-539 Applicants Who File Form I-907 With an Attorney or Accredited
Representative
----------------------------------------------------------------------------------------------------------------
Time burden to
Affected complete Form Hourly wage Total opportunity
population I-907 (hours) cost
A B C D = (A x B x C)
----------------------------------------------------------------------------------------------------------------
F-1, F-2, J-1, J-2, M-1, M-2 Classifications:
In-House Lawyer ($103.81/hr.)............ 2,704 0.58 103.81 162,807
Outsourced Lawyer ($178.98/hr.).............. 2,704 0.58 178.98 280,698
Average Opp. Cost of in-house and Outsourced 2,704 .............. .............. 221,753
Lawyer......................................
E-1, E-2, E-3, L-2, H-4, O-3, P-4, R-2
Classifications:
In-House Lawyer ($103.81/hr.)............ 47,895 0.58 103.81 2,883,748
Outsourced Lawyer ($178.98/hr.).......... 47,895 0.58 178.98 4,971,903
Average Opp. Cost of in-house and 47,895 .............. .............. 3,927,826
Outsourced Lawyer.......................
------------------------------------------------------------------
Total Opportunity cost of time for .............. .............. .............. 4,149,578
all Classifications.................
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.

To estimate the new opportunity costs of time for students and
exchange visitors applying for F, J or M classifications, USCIS uses an
average total rate of compensation based on the effective minimum wage.
DHS assumes that the following classifications: F-1, academic student,
J-1, exchange visitor, J-2 spouse or child of J-1 exchange

[[Page 18249]]

visitor, M-1 vocational student, and M-2 spouse or child of an M-1
vocational student are young with limited work experience/education and
would therefore have lower wages. As reported by The New York Times
``[t]wenty-nine states and the District of Columbia have state-level
minimum hourly wages higher than the federal [minimum wage],'' as do
many city and county governments. Analysis by The New York Times
estimates that ``the effective minimum wage in the United States . . .
[was] $11.80 an hour in 2019.'' \97\ DHS relies on this more robust
minimum wage of $11.80 as an estimate of the opportunity cost of time.
In order to estimate the fully loaded wage rates, to include benefits,
USCIS used the benefits-to-wage multiplier of 1.45 and multiplied it by
the prevailing minimum hourly wage rate. The fully loaded hourly wage
rate for someone earning the effective minimum wage rate is $17.11.\98\
Therefore, DHS estimates that the opportunity cost for each petitioner
is $9.92 per response for those petitions.\99\
---------------------------------------------------------------------------

\97\ ``Americans Are Seeing Highest Minimum Wage in History
(Without Federal Help)'' Ernie Tedeschi, The New York Times, April
24, 2019. Accessed at https://www.nytimes.com/2019/04/24/upshot/why-america-may-already-have-its-highest-minimum-wage.html (last visited
June 25, 2020).
\98\ Calculation: (Effective Minimum Wage Rate) $11.80 x
(Benefits-to-wage multiplier) 1.45 = $17.11 per hour.
\99\ Calculation: (Effective Wage) $17.11 x (Estimated
Opportunity of Cost to file Form I-907) 0.58 = $9.92.
---------------------------------------------------------------------------

DHS accounts for worker benefits when estimating the total costs of
compensation by calculating a benefits-to-wage multiplier using the
U.S. Department of Labor, BLS report detailing the average employer
costs for employee compensation for all civilian workers in major
occupational groups and industries. DHS estimates that the benefits-to-
wage multiplier is 1.45 and, therefore, is able to estimate the full
opportunity cost per petitioner, including employee wages and salaries
and the full cost of benefits such as paid leave, insurance,
retirement, and other benefits.\100\ DHS uses the mean hourly wage of
$27.07 per hour \101\ for all occupations to estimate the opportunity
cost of time for this population in this analysis. DHS calculates the
total rate of compensation as $39.25 per hour, where the mean hourly
wage is $27.07 per hour worked and average benefits are $12.18 per
hour.\102\
---------------------------------------------------------------------------

\100\ The benefits-to-wage multiplier is calculated as follows:
(Total Employee Compensation per hour)/(Wages and Salaries per hour)
($38.60 Total Employee Compensation per hour)/($26.53 Wages and
Salaries per hour) = 1.454964 = 1.45 (rounded). See U.S. Department
of Labor, BLS, Economic News Release, Employer Cost for Employee
Compensation (December 2020), Table 1. Employer Costs for Employee
Compensation by ownership (Dec. 2020), available at https://www.bls.gov/news.release/archives/ecec_03182021.htm. (last visited
Mar. 31, 2021).
\101\ See BLS, U.S. Department of Labor, ``Occupational
Employment Statistics, May 2020, All Occupations.'' Available at
https://www.bls.gov/oes/2020/may/oes_nat.htm#00-0000 Accessed Apr.
13, 2021. (last visited Apr. 29, 2021).
\102\ The calculation of the weighted mean hourly wage for
applicants: $27.07 per hour *1.45 benefits-to-wage multiplier =
$39.25 (rounded) per hour.
---------------------------------------------------------------------------

To estimate the new opportunity costs of time for a Form I-539
applicant filing Form I-907 to request premium processing, DHS applies
the estimated public reporting time burden (0.58 hours) to the newly
eligible population and compensation rate of the applicant. Therefore,
for those newly eligible, as shown in Table 24, DHS estimates the total
annual opportunity cost of time to F-1, F-2, J-1, J-2, M-1, M-2
classification applicants completing and filing Form I-907 requests is
$74,895 and the opportunity cost of time for E-1, E-2, E-3, L-2, H-4,
O-3, P-4, R-2 classification applicants is $348,054. DHS estimates the
total opportunity cost of time for the affected population of Form I-
539 applicants filing Form I-907 of $422,949 as shown in Table 24.

Table 24--Opportunity Costs of Time to Form I-539 Applicants for Filing Form I-907, Request for Premium
Processing Service
----------------------------------------------------------------------------------------------------------------
Time burden to Total opportunity
Affected complete Form Petitioner cost of time to
population I-907 (hours) cost of time file Form I-907
A B C D = (A x B x C)
----------------------------------------------------------------------------------------------------------------
F-1, F-2, J-1, J-2, M-1, M-2 classifications. 7,547 0.58 $17.11 $74,895
E-1, E-2, E-3, L-2, H-4, O-3, P-4, R-2 15,289 0.58 39.25 348,054
classifications.............................
------------------------------------------------------------------
Total.................................... 22,836 .............. .............. 422,949
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.

DHS estimates the total additional annual cost beginning in FY 2022
to F-1, F-2, J-1, J-2, M-1, M-2 classification applicants completing
and filing Form I-907 requests are expected to be $296,648 shown in
Table 25. Note that this cost includes an average opportunity cost time
for lawyers, which assumes half of the applicants use an in house
lawyer and half the applicants use an outsourced lawyer.

Table 25--Total Costs to Form I-539 F-1, F-2, J-1, J-2, M-1, M-2
Classification Applicants for Filing Form I-907, Request for Premium
Processing
------------------------------------------------------------------------

------------------------------------------------------------------------
Average Opportunity Cost Time for Lawyers to Complete $221,753
Form I-907.............................................
Average Opportunity Cost Time for Students to Complete 74,895
Form I-907.............................................
---------------
Total Cost.......................................... 296,648
------------------------------------------------------------------------
Source: USCIS Analysis.

[[Page 18250]]

DHS estimates the total additional annual cost beginning in FY 2025
to E-1, E-2, E-3, L-2, H-4, O-3, P-4, R-2 classification applicants
completing and filing Form I-907 requests are expected to be $4,275,880
shown in Table 26. From a societal perspective, the opportunity cost
measures represent societal costs, while the filing fees represent
transfers from applicants to the government.\103\
---------------------------------------------------------------------------

\103\ See Instructions for Application to Extend/Change
Nonimmigrant Status. Form I-539. OMB No. 1615-0003 Expires Nov. 30,
2021. Accessed at https://www.uscis.gov/sites/default/files/document/forms/i-539instr.pdf (last updated Mar. 10, 2021). The
USCIS Stabilization Act did not change the time burden to complete
any of the classifications for Form I-539, nor form fees. The public
reporting burden for this collection of information is in the form
instructions.

Table 26--Total Costs to Form I-539 E-1, E-2, E-3, L-2, H-4, O-3, P-4, R-
2 Applicants for Filing Form I-907, Request for Premium Processing
------------------------------------------------------------------------

------------------------------------------------------------------------
Average Opportunity Cost Time for Lawyers to Complete $3,927,826
Form I-907.............................................
Average Opportunity Cost Time for Workers to Complete 348,054
Form I-907.............................................
---------------
Total Cost.......................................... 4,275,880
------------------------------------------------------------------------
Source: USCIS Analysis.

In Table 27, DHS uses the estimated new population to complete Form
I-907. DHS estimates that as a result of the increase in filing fees
for Form I-907, Request for Premium Processing Service, the additional
annual transfer payments from the new Form I-539 F-1, F-2, J-1, J-2, M-
1, M-2 classification fee-paying population to DHS will be $17,939,250
in FY 2022.
DHS also estimates that annual transfer payments from Form I-539 E-
1, E-2, E-3, L-2, H-4, O-3, P-4, R-2 classification applicants who
request premium processing by filing Form I-907 to DHS will be
$110,572,000 in FY 2025.

Table 27--Filing Fees for Form I-539 Applicants for Filing Form I-907, Request for Premium Processing Service
----------------------------------------------------------------------------------------------------------------
Newly eligible New fees for Fees for filing
population Form I-907 Form I-907
(A) (B) C = (A x B)
----------------------------------------------------------------------------------------------------------------
Estimate of Eligible Form I-539 Petitions (53%) Students..... 10,251 $1,750 $17,939,250
Estimate of Eligible Form I-539 Petitions (53%) Workers...... 63,184 1,750 110,572,000
----------------------------------------------------------------------------------------------------------------
Total.................................................... 73,435 1,750 128,511,250
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.

(e) Form I-765, Application for Employment Authorization, Costs &
Transfer Payments
In this final rule, DHS is including Form I-765, Application for
Employment Authorization, to the list of immigration benefit requests
permitted to apply for premium processing. Table 28 shows the total
receipts received for Form I-765 for FY 2017 through FY 2021. Table 28
also shows the number of Form I-765 receipts filed with an attorney or
accredited representative using Form G-28. The number of Form G-28
submissions allows USCIS to estimate the number of Forms I-765 that are
filed by an attorney or accredited representative and thus estimate the
opportunity costs of time for an applicant, attorney or accredited
representative to file each form. From FY 2017 through FY 2021, total
annual receipts for Form I-765 ranged from a low of 2,005,591 in FY
2020 to a high of 2,588,827 in FY 2021. Based on a 5-year annual
average, DHS estimates the annual average receipts of Form I-765 to be
2,259,872 with 48 percent of applications filed by an attorney or
accredited representative.

Table 28--Form I-765 Application for Employment Authorization, Receipts Received by USCIS, With Form G-28 Notice
of Entry of Appearance as Attorney or Accredited Representative, FY 2017 through FY 2021
----------------------------------------------------------------------------------------------------------------
Form G-28
receipts Form G-28 Percent of Form
FY Form I-765 received with a receipts received I-765 receipts
receipts form I-765 without form I- filed with a
receipt 765 receipt form G-28 receipt
----------------------------------------------------------------------------------------------------------------
2017..................................... 2,372,692 1,077,974 1,294,718 45
2018..................................... 2,140,985 947,711 1,193,274 44
2019..................................... 2,191,145 1,052,774 1,138,371 48
2020..................................... 2,005,712 1,027,689 978,023 51
2021..................................... 2,588,827 1,355,324 1,233,503 52
----------------------------------------------------------------------
Total................................ 11,299,361 5,461,472 5,837,889 .................
----------------------------------------------------------------------

[[Page 18251]]

5-year Annual Average............ 2,259,872 1,092,294 1,167,578 48
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Policy and Strategy, Policy Research Division (PRD), CLAIMS3 and ELIS database, October
18, 2021.

DHS does not know how many newly eligible Form I-765 applicants
will choose to submit a premium processing request because this
population has not previously been eligible to file for premium
processing.
DHS is prioritizing premium processing for some Form I-765
categories. DHS anticipates to begin premium processing Employment
Authorization Documents for students applying for Optional Practical
Training (OPT) and exchange visitors beginning in FY 2022. Table 29
shows the estimated populations that will be eligible for premium
processing. Based on a 5-year annual average, DHS estimates the annual
average receipts of Form I-765 eligible categories to be 218,076
beginning in FY 2022. DHS also estimates that the annual average
receipts of Form I-765 for the additional categories to be 102,495
beginning in 2025 based on a 5-year annual average. DHS identifies a
final expanded eligibility group consisting of an additional 1,136,691
applicants that could be covered under this rule; however due to the
size and nature of this group, DHS does not have immediate plans for
when premium processing will be implemented for them. Lastly, DHS
excludes remaining categories that USCIS has no current plans to expand
to implement premium processing for.

Table 29--Form I-765 Classifications by Expected Implementation, FY 2017 through FY 2021
--------------------------------------------------------------------------------------------------------------------------------------------------------
Form I-765
Form I-765 Form I-765 Form I-765 receipts unlikely
FY receipts receipts receipts unsure categories to be Total
eligible in eligible in of eligible for
2022 2025 implementation premium processing
--------------------------------------------------------------------------------------------------------------------------------------------------------
2017.............................................................. 237,072 96,806 1,112,502 926,065 2,372,445
2018.............................................................. 235,622 100,316 977,641 827,050 2,140,629
2019.............................................................. 226,275 110,743 1,165,725 686,547 2,189,290
2020.............................................................. 207,550 110,449 1,056,139 625,570 1,999,708
2021.............................................................. 183,859 94,160 1,371,449 945,495 2,594,963
-------------------------------------------------------------------------------------
Total......................................................... 1,090,378 512,474 5,683,456 4,010,727 11,297,035
-------------------------------------------------------------------------------------
5-year Annual Average..................................... 218,076 102,495 1,136,691 802,145 2,259,407
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: U.S. Citizenship and Immigration Services, Office of Performance and Quality, C3 Consolidated via SAS, queried October 2021.
* Note: Totals is this table are .1% off from Table 28 due to different pull dates of the data.

Since Form I-765 applicants have never been eligible to request
premium processing, DHS has no historical data to determine how many of
the newly eligible population will take advantage of premium
processing. Therefore, DHS uses the 53- percent average of Forms I-129
and I-140 developed in Table 6, that request premium processing for
this newly eligible population as a proxy.
DHS understands that some Form I-765 classifications are already on
a congressionally mandated or regulatory clock to adjudicate their
forms in 30-90 days and therefore it would not be reasonable to assume
these applicants would pay the additional fee to submit a premium
processing request. Some Form I-765 applicants for asylum-based
categories may also be submitting Form I-539 concurrently so they may
not be interested in paying for premium processing twice. DHS also
recognizes that some classifications could be more interested in faster
adjudication times and may submit premium processing requests at a rate
more consistent with the estimates applied to the other populations in
this analysis. While EAD eligibility categories are not effective
predictors of future likelihood to request premium processing, applying
the assumptions above to the Form I-765 data by eligibility category
yields a more consistent approximation of potential population
requesting premium processing for their EADs.\104\ Using 53-percent as
a proxy, DHS estimates that 115,580 applicants (53-percent of the
eligible population) out of the 218,076 employment authorization
document applicants who apply annually may submit a premium processing
request with their Form I-765 application beginning in FY 2022.\105\
DHS also estimates that 54,322 applicants (53-percent of the eligible
population) out of the 102,495 employment authorization document
applicants who apply annually may submit a premium processing request
with their Form I-765 application beginning in FY 2025.\106\
---------------------------------------------------------------------------

\104\ See Form I-765, Application for Employment Authorization,
All Receipts, Approvals, Denials Grouped by Eligibility Category and
Filing Type at https://www.uscis.gov/sites/default/files/document/reports/I-765_Application_for_Employment_FY03-20.pdf. USCIS, OPQ, C3
Consolidated via SAS, queried Oct 2020. (accessed 10/15/2021)
\105\ Calculation: 218,076 applicants * 53 percent = 115,580.
\106\ Calculation: 102,495 applicants * 53 percent = 54,322.
---------------------------------------------------------------------------

In order to estimate the opportunity costs of time for completing
and filing

[[Page 18252]]

a Form I-907 submitted with a Form I-765, DHS assumes that to prepare,
complete, and file these forms an applicant will use either an in-house
lawyer, outsourced lawyer, or will do so themselves. Based on the data
from Table 30, 48-percent of Form I-765 applications were filed with an
attorney or accredited representative using Form G-28, with 52- percent
\107\ of Form I-765 applications being filed without a Form G-28. DHS
will apply these same percentages to applicants requesting premium
processing with a Form I-765, expecting that 48-percent will use an
attorney or accredited representative and 52- percent will file the
Form I-907 themselves. Table 30 shows the total population by
percentage for applicants who may choose to file Form I-765 with and
without Form G-28.
---------------------------------------------------------------------------

\107\ Calculation: 100 percent-48 percent filing with Form G-28
= 52 percent only filing Form I-765.

Table 30--Estimated Form I-765, Application for Employment Authorization, Populations Filing With and Without
Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative
----------------------------------------------------------------------------------------------------------------
Estimated Form
Estimated Form I-765 filed
Percent I-765 filed without Form G- Total
with Form G-28 28
A B C = (A + B)
----------------------------------------------------------------------------------------------------------------
Estimate of Eligible Form I-765 Petitions in 2022 (53%)........ 60,102 55,478 115,580
Estimate of Eligible Form I-765 Petitions in 2025 (53%)........ 28,247 26,075 54,322
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.

To estimate the opportunity costs of time to file a Form I-907 to
accompany a Form I-765 using an attorney or accredited representative,
DHS applies the estimated public reporting time burden (0.58 hours) to
the population who will be eligible for premium processing beginning in
FY 2022. Table 31 shows the estimated annual opportunity costs of time
to complete and file Form I-907 with a Form I-765 if filed by an in-
house lawyer or outsourced lawyer. The opportunity cost of time is
$4,928,911 based on a simple average of the cost for an in-house lawyer
and an outsourced lawyer.

Table 31--Total Opportunity Costs of Time to an Attorney or Accredited Representative to Complete and File Form
I-907, Request for Premium Processing Service with a Form I-765 Beginning in FY 2022
----------------------------------------------------------------------------------------------------------------
Estimate of
eligible Form
I-765 Time burden to Hourly wage Total
petitions complete Form rate opportunity cost
filed with I-907 (hours)
Form G-28
A B C D = (A x B x C)
----------------------------------------------------------------------------------------------------------------
In-House Lawyer ($103.81/hr.)................. 60,102 0.58 $103.81 $3,618,729
Outsourced Lawyer ($178.98/hr.)............... 60,102 0.58 178.98 6,239,092
-----------------------------------------------------------------
Average................................... 60,102 .............. .............. 4,928,911
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.

To estimate the opportunity costs of time to complete and file Form
I-907 with a Form I-765 without an attorney or accredited
representative, DHS applies the estimated public reporting time burden
(0.58 hours) \108\ to the newly eligible population and compensation
rate of the applicant. Therefore, for those newly eligible, as shown in
Table 32, DHS estimates the total annual opportunity costs of time to
applicants completing and filing Form I-907 to be $1,557,378.
---------------------------------------------------------------------------

\108\ See Instructions for Request for Premium Processing
Service. Form I-907. OMB No. 1615-0048 Expires July 31, 2022.
Accessed at https://www.uscis.gov/sites/default/files/document/forms/i-907instr.pdf (last updated Sep. 30, 2020).

Table 32--Opportunity Costs to Form I-765, Application for Employment Authorization, Applicants for Filing Form
I-907, Request for Premium Processing Service Beginning in FY 2022
----------------------------------------------------------------------------------------------------------------
Time burden to
Newly eligible complete Form I- HR specialist cost Total opportunity
population 907 (hours) of time ($/hr.) cost
A B C D = (A x B x C)
----------------------------------------------------------------------------------------------------------------
Estimate of Eligible Form I-765 55,478 0.58 $48.40 $1,557,378
Petitions...........................
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.

[[Page 18253]]

To estimate the opportunity cost of time to file a Form I-907 to
accompany a Form I-765 using an attorney or accredited representative,
DHS applies the estimated public reporting time burden (0.58 hours)
\109\ to the population who will be eligible for premium processing
beginning in FY 2025 and compensation rates of filers. Table 33 shows
the estimated annual opportunity costs of time to complete and file
Form I-907 with a Form I-765 if filed by an in-house lawyer or
outsourced lawyer. The opportunity cost of time is $2,316,511 based on
a simple average of the cost for an in-house lawyer and an outsourced
lawyer.
---------------------------------------------------------------------------

\109\ See Instructions for Request for Premium Processing
Service. Form I-907. OMB No. 1615-0048 Expires July 31, 2022.
Accessed at https://www.uscis.gov/sites/default/files/document/forms/i-907instr.pdf (last updated Sep. 30, 2020).

Table 33--Total Opportunity Costs of Time to an Attorney or Accredited Representative to Complete and File Form
I-907, Request for Premium Processing Service With a Form I-765 Beginning in FY 2025
----------------------------------------------------------------------------------------------------------------
Estimate of
eligible Form
I-765 Time burden to Hourly wage Total
petitions complete Form rate opportunity cost
filed with I-907 (hours)
Form G-28
A B C D = (A x B x C)
----------------------------------------------------------------------------------------------------------------
In House Lawyer ($103.81/hr.)................. 28,247 0.58 $103.81 $1,700,746
Outsourced Lawyer ($178.98/hr.)............... 28,247 0.58 178.98 2,932,276
-----------------------------------------------------------------
Average................................... 28,247 .............. .............. 2,316,511
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.

To estimate the opportunity cost of time to complete and file Form
I-907 with a Form I-765 without an attorney or accredited
representative, DHS applies the estimated public reporting time burden
(0.58 hours) to the population who will be eligible for premium
processing beginning in FY 2025 and compensation rate of the applicant.
For those newly eligible, shown in Table 34, DHS estimates the total
annual opportunity cost of time to applicants completing and filing
Form I-907 to be $731,977.

Table 34--Opportunity Costs to Form I-765, Application for Employment Authorization, Applicants for Filing Form
I-907, Request for Premium Processing Service Beginning in FY 2025
----------------------------------------------------------------------------------------------------------------
Time burden to HR specialist
Newly eligible complete Form I- cost of time ($/ Total opportunity
population 907 (hours) hr.) cost
A B C D = (A x B x C)
----------------------------------------------------------------------------------------------------------------
Estimate of Eligible Form I-765 26,075 0.58 $48.40 $731,977
Petitions (53%).......................
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.

Using the population estimates, DHS next calculates the total costs
for the new Form I-765 population to complete and file premium
processing requests using Form I-907. DHS estimates the total annual
cost to applicants completing and filing Form I-907 requests to be
$6,486,289 beginning in FY 2022, and $3,048,488 beginning in FY 2025 as
shown in Table 35. From a societal perspective, the opportunity cost
measures represent social costs, while the filing fees represent
transfers from applicants to the government.\110\
---------------------------------------------------------------------------

\110\ See Instructions for Application for Employment
Authorization. Form I-765. OMB No. 1615-0040 Expires July 31, 2022.
Accessed at https://www.uscis.gov/sites/default/files/document/forms/i-765instr.pdf (last updated Aug. 25, 2020). The USCIS
Stabilization Act did not change the time burden to complete any of
the classifications for Form I-765, nor form fee. The public
reporting burden for this collection of information is in the pdf
above.

Table 35--Annual Costs to Form I-765 Applicants for Completing and Filing Form I-907, Request for Premium
Processing Service
----------------------------------------------------------------------------------------------------------------
Opportunity cost of Opportunity cost of
time completing Form time completing Form
I-907 (lawyer), I-907 (applicant), Annual cost
Table 31 Table 32
A B D = (A + B + C)
----------------------------------------------------------------------------------------------------------------
Estimate of Eligible Form I-765 Petitions (53%) $4,928,911 $1,557,378 $6,486,289
beginning in FY 2022............................
Estimate of Eligible Form I-765 Petitions (53%) 2,316,511 731,977 3,048,488
beginning in FY 2025............................
--------------------------------------------------------------
Total........................................ .................... .................... $9,534,777
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.

[[Page 18254]]

In Table 36, DHS uses the population estimates from above to
calculate the transfer payments for the newly eligible Form I-765
population to DHS. DHS estimates that annual transfer payments from
Form I-765 applicants requesting request premium processing using Form
I-907 will be $173,370,000 to DHS.

Table 36--Fees to Form I-765 Applicants Requesting Premium Processing Using Form I-907 Beginning in FY 2022
----------------------------------------------------------------------------------------------------------------
Newly eligible New fees for Fees to file Form
population Form I-907 I-907
A B C = (B x A)
----------------------------------------------------------------------------------------------------------------
Estimate of Eligible Form I-765 Petitions................ 115,580 $1,500 $173,370,000
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.

In Table 37, DHS uses the population estimates from above to
calculate the transfer payments from the newly eligible Form I-765
population to DHS. DHS estimates that annual transfer payments from
Form I-765 applicants requesting request premium processing using Form
I-907 will be $81,483,000 to DHS.

Table 37--Fees to Form I-765 Applicants Requesting Premium Processing Using Form I-907 Beginning in FY 2025
----------------------------------------------------------------------------------------------------------------
Newly eligible New fees for Fees to file Form
population Form I-907 I-907
A B C = (B x A)
----------------------------------------------------------------------------------------------------------------
Estimate of Eligible Form I-765 Petitions (53%).......... 54,322 $1,500 $81,483,000
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.

(f) Government Costs of This Final Rule
This final rule will require USCIS enhancements to handle the
projected volumes of expedited requests without adverse impact to other
processing times. The costs of these enhancements are not estimated but
are expected to be covered by the fee increases (transfers) from Form
I-129 and Form I-140 petitioners/applicants that request premium
processing. DHS does not know how much it will cost to add new
categories to apply for premium processing, and these costs are
unquantified.
The USCIS Stabilization Act prohibits USCIS from making premium
processing available if it adversely affects processing times for
immigration benefit requests not designated for premium processing or
the regular processing of immigration benefit requests so designated.
Therefore, USCIS must first raise sufficient funds to ensure it has the
staffing and IT resources to expand premium processing availability. In
addition to covering the costs of providing expanded premium processing
services, the Stabilization Act authorizes USCIS to spend additional
revenue collected as a result of this rule on infrastructure
improvements in adjudication processes and information services,
reducing the number of pending immigration and naturalization benefit
requests or otherwise offsetting the cost of providing services.
In accordance with directives outside the scope of this rulemaking,
DHS has prioritized and is in the process of expanding electronic
filing for all applications and benefit requests. Some of the
immigration benefit requests newly designated for premium processing
are already filed electronically.\111\ Specifically, Forms I-539 and I-
765 are both currently available for electronic filing. However,
premium processing requests through Form I-907 are currently still
paper based. USCIS would need to make systems changes to give users the
ability to file premium processing requests with the relevant
underlying form that is electronically available. This expansion of
electronic filing of the premium processing form is a prerequisite to
expanding the availability of premium processing to newly designated
immigration benefit requests without adversely affecting processing
times for other benefits. DHS must hire and train new staff with
revenue from current premium processing requests in order to expedite
adjudication of premium processing for the newly eligible population,
consistent with the statutory requirement, that other processing times
not be adversely affected.
---------------------------------------------------------------------------

\111\ Forms Available to File Online https://www.uscis.gov/file-online/forms-available-to-file-online (last updated Dec. 12, 2021).
---------------------------------------------------------------------------

Because the Act authorizes USCIS to use additional revenue for
other improvements and, separately, directs USCIS to semi-annually
advise appropriate Congressional Committees of progress on a 5-year
plan for infrastructure improvements. For the purpose of this
Regulatory Impact Analysis, DHS assumes expanded premium processing to
start in FY 2022 for the additional Form I-140 categories, as well as
certain categories of Form I-539 and Form I-765. DHS also assumes some
additional Form I-539 and Form I-765 categories will start in FY 2025
due to the possibility that revenues do not yet exist to cover any
potential costs without adversely affecting other benefit's processing
times, as directed by Congress.
As expected, the current processing times for the newly designated
immigration benefit requests generally exceed the proposed premium
processing timeframes by many months. USCIS generally cannot reallocate
staff to adjudicate these immigration benefit requests without
adversely affecting processing times, for other immigration benefit
requests. Therefore, USCIS must hire and train new staff to handle the
expanded availability of premium processing, requiring time and
resources.
Future revenues from premium processing are expected to exceed
future costs, accomplishing Congress' intention in authorizing the
expansion

[[Page 18255]]

of premium processing. USCIS is unable to hire additional employees in
anticipation of a potential surge in upgrades to pending petitions and
applications unless the funds are already available, to pay for those
employees. If USCIS were to make premium processing available for a
high volume of petitions/applications with a significant backlog and
without the staff on hand to take appropriate action within the
applicable processing timeframe, then USCIS would be required to refund
the premium processing fees.
While potential costs to USCIS of expanding premium processing
without harm to non-premium processing times are volume-dependent and
difficult to quantify, the above projections suggest that the described
implementation plan is expected to generate adequate resources to cover
the costs required to support the expansion of premium processing
without risk to non-premium processing times.
(g) Benefits to the Federal Government
The USCIS Stabilization Act provides specific purposes that the
premium processing fees can be used for. Consistent with those
permissible purposes, the premium processing fees collected will be
used to provide the premium processing services; make infrastructure
improvements in adjudications processes and the provision of
information and services to immigration and naturalization benefit
requestors; and respond to adjudication demands, including by reducing
the number of pending immigration and naturalization benefit requests.
The primary benefit of this rule to DHS is the opportunity to increase
revenue needed to make improvements in adjudication processes. For
example, increases in revenue will allow USCIS to pay for
infrastructure improvements, like overhead (such as facility costs, IT
equipment and systems, or other expenses) and pay the salaries and
benefits of current and new clerical staff, officers, and managers to
provide premium processing services and improve agency response to
adjudicative demands.
(h) Qualitative Benefits to Petitioners and Applicants
Petitioners of Form I-140 (EB-1, multinational executives and
managers and EB-2, members of professions with advanced degrees or
exceptional ability seeking a national interest waiver) who were
previously ineligible for premium processing may be able to have their
petitions reviewed quicker. As a result, an adjudicative action may be
taken more quickly. This change benefits businesses that previously
would have had to wait longer to receive adjudicative action (such as a
notice of approval) for an employee. Other benefits that may accrue to
beneficiaries of Form I-140 petitions generally include INA section
204(j) portability eligibility, see 8 CFR 245.25, priority date
retention, see 8 CFR 204.5(e), and AC21-based H-1B extension
eligibility, see 8 CFR 214.2(h)(13)(iii)(E). Benefits also may accrue
to H-4 dependents who may become eligible for employment pursuant to
the I-140 petition approval, see 8 CFR 214.2(h)(9)(iv) and
274a.12(c)(26), and to beneficiaries (principal and derivative) under 8
CFR 204.5(p). and 274a.12(c)(35).
Form I-539 applicants may now receive an adjudicative action on
their request for a change of status or extension of stay sooner than
before, which may alleviate concern about lapses in their nonimmigrant
status. This will provide students and trainees greater predictability
in processing timeframes so that they may change their status and start
school or training on time. The greater predictability will also allow
applicants to plan international travel as these applicants are
considered to have abandoned their application if they leave the United
States while their application is pending. In addition, applicants who
may work or apply for work authorization pursuant to their status may
do so more quickly than they could without premium processing.
Applicants of Form I-765 may now benefit through receipt of an
adjudicative decision in a specified timeframe making those applicants
eligible to work legally in the United States sooner than they would
have previously. This will allow applicants to start working sooner
rather than having to wait for the full processing time period before
seeking employment. This could result in cost savings to some
applicants who would have had to wait to receive wages without premium
processing. This could also result in additional tax revenue to be
collected by the government if these workers enter the labor force
earlier than they would have otherwise.
(i) Final Costs and Transfer Payments of the Final Rule
Undiscounted Costs and Transfer Payments
DHS summarizes the annual transfer payments from Form I-129 and I-
140 petitioners to DHS. Table 38 details the annual transfer payments
of this final rule from the Form I-129 and Form I-140 fee-paying
population for FY 2021 to DHS was $409,559,500 in FY 2021, due to the
increase in filing fees.

Table 38--Summary of Transfer Payments From Fee-Paying Form I-129 and
Form I-140 Petitioners to DHS in FY 2021
------------------------------------------------------------------------
Increase in
Description transfer payments
------------------------------------------------------------------------
Form I-129, Petition for a Nonimmigrant Worker..... $306,448,000
Form I-140, Immigrant Petition for Alien Workers *. 103,111,500
--------------------
Annual Transfers (undiscounted)................ 409,559,500
------------------------------------------------------------------------
* Note: Currently designated eligible Form I-140 Classifications: E11,
E12, E21 (non-NIW), E31, E32, EW3.

DHS summarizes the estimated annual transfer payments from
currently eligible Form I-129 and I-140 petitioners to DHS, and the
estimated annual transfer payments from newly eligible classification
Form I-140 petitioners, Form I-539 applicants, and Form I-765
applicants to DHS. Table 39 details that the estimated annual transfer
payments of this final rule from the currently eligible Form I-129,
Form I-140 and newly eligible Form I-140, Form I-539 and Form I-765
fee-paying population to DHS will be $663,722,850 due to the increase
in filing fees for year 2 through 4 of this analysis, FY 2022 through
FY 2024.

[[Page 18256]]

Table 39--Summary of Estimated Total Transfer Payments From Fee-Paying
Form I-129 and Form I-140 Petitioners and Newly Eligible Form I-140
Petitioners, Form I-539 Applicants and Form I-765 Applicants to DHS in
This Final Rule, FY 2022 Through FY 2024
------------------------------------------------------------------------
Estimated annual
Description transfer payments
------------------------------------------------------------------------
Form I-129, Petition for a Nonimmigrant Worker..... $295,113,180
Form I-140, Immigrant Petition for Alien Workers *. 82,872,920
Newly Eligible Form I-140, Immigrant Petition for 94,427,500
Alien Workers,* Transfers.........................
Form I-539, Application to Extend/Change 17,939,250
Nonimmigrant Status, Transfers....................
Form I-765, Application for Employment 173,370,000
Authorization, Transfers..........................
--------------------
Annual Transfers (undiscounted)................ 663,722,850
------------------------------------------------------------------------
* Note: Currently designated eligible Form I-140 Classifications: E11,
E12, E21 (non-NIW), E31, E32, EW3.

DHS also presents the total annual transfers from the petitioners
and applicants who may be able to request premium processing in FY
2025. The newly eligible applicants and petitioners are those that may
be able to file Form I-907 with their Forms I-539 (application to
extend/change nonimmigrant status, E-1, E-2, E-3, H-4, L-2, O-3, P-4,
or R-2 classifications), and additional classifications of Form I-765.
Table 40 details that the total annual transfer of this final rule from
newly eligible premium processing requestors will be $192,055,000 to
DHS due to the expected additional filing fees for year 5 through 10 of
this analysis, FY 2025 through FY 2030.

Table 40--Summary of Estimated Total Annual Transfers in This Final Rule
After FY 2025
------------------------------------------------------------------------
Estimated
Filing fees annual fees
------------------------------------------------------------------------
Form I-539, Application to Extend/Change Nonimmigrant $110,572,000
Status, Transfers......................................
Form I-765, Application for Employment Authorization, 81,483,000
Transfers..............................................
---------------
Total Annual Transfers (undiscounted)............... 192,055,000
------------------------------------------------------------------------

DHS presents the total annual costs to the petitioners and
applicants who may now be able to request premium processing beginning
in FY 2022. The newly eligible applicants and petitioners may be able
to file Form I-907 with their Forms I-539 (application to extend/change
nonimmigrant status, F-1, F-2, J-1, J-2, M-1, or M-2 classifications,
certain classifications of Form I-765, and I-140 (EB-1, multinational
executives and managers, and EB-2, members of professions with advanced
degrees or exceptional ability seeking a national interest waiver).
Table 41 details the total annual costs of this final rule to premium
processing requestors of $9,717,505.

Table 41--Summary of Estimated Total Annual Costs in This Final Rule
Beginning in FY 2022
------------------------------------------------------------------------
Opportunity costs of time Estimated annual cost
------------------------------------------------------------------------
Newly Eligible Form I-140, Immigrant $2,934,568.
Petition for Alien Workers,*
Opportunity Costs.
Form I-539, Application to Extend/Change $296,648.
Nonimmigrant Status, Opportunity Costs.
Form I-765, Application for Employment $6,486,289.
Authorization, Opportunity Costs.
Government Costs of Providing Premium Unquantified.
Processing to Newly Eligible
Populations.
-------------------------------
Total Annual Costs (undiscounted)... $9,717,505 + Government Costs.
------------------------------------------------------------------------
* Note: Form I-140 EB-1, multinational executives and managers, and EB-
2, members of professions with advanced degrees or exceptional ability
seeking a national interest waiver.

DHS presents the total annual costs to the petitioners and
applicants who may now be able to request premium processing in FY
2025. The newly eligible applicants and petitioners may be able to file
Form I-907 with their Forms I-539 (application to extend/change
nonimmigrant status, E-1, E-2, E-3, H-4, L-2, O-3, P-4, or R-2
classifications), and additional classifications of Form I-765. Table
42 details the total annual costs of this final rule to premium
processing requestors of $7,324,368.

Table 42--Summary of Estimated Total Annual Costs in This Final Rule
After FY 2025
------------------------------------------------------------------------
Opportunity costs of time and filing
fees Estimated annual cost
------------------------------------------------------------------------
Form I-539, Application to Extend/Change $4,275,880.
Nonimmigrant Status, Costs.
Form I-765, Application for Employment $3,048,488.
Authorization, Costs.

[[Page 18257]]

Government Costs of Providing Premium Unquantified.
Processing to Newly Eligible
Populations.
-------------------------------
Total Annual Costs (undiscounted)... $7,324,368 + Government Costs.
------------------------------------------------------------------------

Discounted Costs and Transfer Payments
The Continuing Appropriations Act, 2021 and Other Extensions Act,
signed into law on October 1, 2020, contained the Emergency Stopgap
USCIS Stabilization Act, which set new fees for premium processing of
immigration benefit requests that had been designated for premium
processing as of August 1, 2020, and expanded USCIS authority to
establish and collect new premium processing fees and to use those
additional funds for expanded purposes. Table 43 shows the transfer
payments from Form I-129 and Form I-140 premium processing requestors
to DHS over the 10-year implementation period of this final rule. DHS
used the actual transfer payments for FY 2021, and estimated FY 2022
through FY 2030 based on the 5-year annual average populations. The
table also shows the estimated annual transfer payments from newly
eligible classification Form I-140 petitioners, Form I-539 applicants,
and Form I-765 applicants to DHS for some classifications beginning in
FY 2022, and for other classifications in FY 2025. DHS estimates the
total annualized transfer payments to be $743,160,614 discounted at 3
percent and $729,337,131 discounted at 7 percent.

Table 43--Total Undiscounted and Discounted Transfer Payments of This
Final Rule
------------------------------------------------------------------------
Total estimated transfers
-----------------------------------------
$409,559,500 (undiscounted FY 2021)
$663,722,850 (undiscounted FY 2022
FY through FY 2024) $855,777,850
(undiscounted FY 2025 through FY 2030)
-----------------------------------------
Discounted at 3 Discounted at 7
percent percent
------------------------------------------------------------------------
2021.......................... $397,630,583 $382,765,888
2022.......................... 625,622,443 579,721,242
2023.......................... 607,400,430 541,795,553
2024.......................... 589,709,156 506,350,984
2025.......................... 738,201,491 610,157,780
2026.......................... 716,700,477 570,240,916
2027.......................... 695,825,705 532,935,435
2028.......................... 675,558,937 498,070,500
2029.......................... 655,882,463 465,486,449
2030.......................... 636,779,091 435,034,064
-----------------------------------------
Total..................... 6,339,310,776 5,122,558,811
-----------------------------------------
Annualized Cost....... 743,160,614 729,337,131
------------------------------------------------------------------------

In this Regulatory Impact Analysis, DHS is projecting a phased
implementation and estimates the costs starting in FY 2022 for certain
classifications and FY 2025 for additional new classifications, which
is explained in greater detail in the ``Government Costs'' section of
this analysis. This phased implementation will allow current premium
processing revenue to cover potential costs from the expedited
processing of a large volume of new requests Table 44 shows the cost
over the 10-year implementation period of this final rule if some of
these newly designated immigration benefit requests are available in FY
2022 and some are not available for premium processing until FY 2025.
DHS estimates the annualized cost to be $12,744,217 discounted at 3
percent and $12,216,562 discounted at 7 percent. DHS is using a phased
implementation plan for the annualized cost estimate for this rule. The
costs to the government are not estimated or included in these totals
but are expected to be covered by the fee increases (transfers) from
currently eligible Form I-129 and Form I-140 petitioners/applicants
that request premium processing.

[[Page 18258]]

Table 44--Total Undiscounted and Discounted Costs of This Final Rule
With Delayed Implementation
[Primary]
------------------------------------------------------------------------
Total estimated costs
-----------------------------------------
$9,717,505 (undiscounted FY 2022
through FY 2024) $17,041,872
FY (undiscounted FY 2025 through FY 2030)
-----------------------------------------
Discounted at 3 Discounted at 7
percent percent
------------------------------------------------------------------------
2021.......................... $0 $0
2022.......................... 9,159,680 8,487,645
2023.......................... 8,892,893 7,932,378
2024.......................... 8,633,877 7,413,438
2025.......................... 14,700,468 12,150,619
2026.......................... 14,272,300 11,355,719
2027.......................... 13,856,601 10,612,821
2028.......................... 13,453,011 9,918,525
2029.......................... 13,061,176 9,269,649
2030.......................... 12,680,753 8,663,224
-----------------------------------------
Total..................... 82,024,310 61,970,557
-----------------------------------------
Annualized Cost....... 12,744,217 12,216,562
------------------------------------------------------------------------

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), as amended
by the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA), requires an agency to prepare and make available to the
public a regulatory flexibility analysis that describes the effect of
the rule on small entities (i.e., small businesses, small
organizations, and small governmental jurisdictions). A regulatory
flexibility analysis is not required when a rule is exempt from notice-
and-comment rulemaking. This rule is exempt from notice-and-comment
rulemaking. Therefore, a regulatory flexibility analysis is not
required for this rule.

D. Small Business Regulatory Enforcement Fairness Act of 1996
(Congressional Review Act)

The Congressional Review Act (CRA) was included as part of SBREFA
by section 804 of SBREFA, Public Law 104-121, 110 Stat. 847, 868, et
seq. OIRA has determined that this rule is a major rule as defined by
the CRA. DHS has complied with the CRA's reporting requirements and has
sent this final rule to Congress and to the Comptroller General as
required by 5 U.S.C. 801(a)(1).

E. Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of UMRA
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed rule, or final rule
for which the agency published a proposed rule, that includes any
Federal mandate that may result in a $100 million or more expenditure
(adjusted annually for inflation) in any one year by State, local, and
tribal governments, in the aggregate, or by the private sector.\112\
This rule is exempt from the written statement requirement, because DHS
did not publish a notice of proposed rulemaking for this rule.
---------------------------------------------------------------------------

\112\ See 2 U.S.C. 1532(a).
---------------------------------------------------------------------------

In addition, the inflation-adjusted value of $100 million in 1995
is approximately $178 million in 2021 based on the Consumer Price Index
for All Urban Consumers (``CPI-U'').\113\ This final rule does not
contain a Federal mandate as the term is defined under UMRA.\114\ The
requirements of title II of UMRA, therefore, do not apply, and DHS has
not prepared a statement under UMRA.
---------------------------------------------------------------------------

\113\ See U.S. Department of Labor, BLS, ``Historical Consumer
Price Index for All Urban Consumers (CPI-U): U.S. city average, all
items, by month,'' available at https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202112.pdf (last visited Jan.
13, 2022). Calculation of inflation: (1) Calculate the average
monthly CPI-U for the reference year (1995) and the current year
(2021); (2) Subtract reference year CPI-U from current year CPI-U;
(3) Divide the difference of the reference year CPI-U and current
year CPI-U by the reference year CPI-U; (4) Multiply by 100 =
[(Average monthly CPI-U for 2021-Average monthly CPI-U for 1995)/
(Average monthly CPI-U for 1995)] * 100 = [(270.970-152.383)/
152.383] * 100 = (118.587/152.383) * 100 = 0.77821673 * 100 = 77.82
percent = 78 percent (rounded). Calculation of inflation-adjusted
value: $100 million in 1995 dollars * 1.78 = $178 million in 2021
dollars.
\114\ The term ``Federal mandate'' means a Federal
intergovernmental mandate or a Federal private sector mandate. See 2
U.S.C. 1502(1), 658(6).
---------------------------------------------------------------------------

F. Executive Order 13132 (Federalism)

This rule does 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, 64 FR 43255 (Aug. 4, 1999), this rule does not have sufficient
federalism implications to warrant the preparation of a federalism
summary impact statement.

G. Executive Order 12988 (Civil Justice Reform)

This rule was drafted and reviewed in accordance with E.O. 12988,
Civil Justice Reform. This final rule was written to provide a clear
legal standard for affected conduct and was carefully reviewed to
eliminate drafting errors and ambiguities, so as to minimize litigation
and undue burden on the Federal court system. DHS has determined that
this final rule meets the applicable standards provided in section 3 of
E.O. 12988.

H. National Environmental Policy Act

DHS Directive 023-01 Rev. 01 (Directive) and Instruction Manual
023-01-001-01 Rev. 01 (Instruction Manual) establish the policies and
procedures that DHS and its components use to comply with the National
Environmental Policy Act (NEPA) and the Council on Environmental
Quality

[[Page 18259]]

(CEQ) regulations for implementing NEPA.\115\
---------------------------------------------------------------------------

\115\ 40 CFR parts 1500 through 1508.
---------------------------------------------------------------------------

The CEQ regulations allow Federal agencies to establish, with CEQ
review and concurrence, categories of actions (``categorical
exclusions'') that experience has shown do not have a significant
effect on the human environment and, therefore, do not require an
Environmental Assessment or Environmental Impact Statement.\116\
---------------------------------------------------------------------------

\116\ 40 CFR 1507.3(e)(2)(ii) and 1501.4.
---------------------------------------------------------------------------

The Instruction Manual establishes categorical exclusions that DHS
has found to have no such effect.\117\ Under DHS NEPA implementing
procedures, for an action to be categorically excluded it must satisfy
each of the following three conditions: (1) The entire action clearly
fits within one or more of the categorical exclusions; (2) the action
is not a piece of a larger action; and (3) no extraordinary
circumstances exist that create the potential for a significant
environmental effect.\118\
---------------------------------------------------------------------------

\117\ See Appendix A, Table 1.
\118\ Instruction Manual section V.B(2)(a) through (c).
---------------------------------------------------------------------------

This rule codifies in regulation the USCIS Stabilization Act, which
amended USCIS authority to provide premium processing services and to
establish and collect premium processing fees for those services and
only amends DHS premium processing regulations to codify those fees set
by the USCIS Stabilization Act, as well as the pre-existing timeframes
for previously designated immigration benefit requests, and to
establish new fees and processing timeframes for the new immigration
benefit requests that are now designated for premium processing.
DHS has determined that this rule clearly fits within categorical
exclusions A3(a) and (b) in Appendix A of the Instruction Manual
established for rules of a strictly administrative or procedural
nature, and rules that implement, without substantive change, statutory
or regulatory requirements.
This rule is not part of a larger action and presents no
extraordinary circumstances creating the potential for significant
environmental effects. Therefore, this rule is categorically excluded
from further NEPA review.

I. Family Assessment

DHS has reviewed this rule in line with the requirements of section
654 of the Treasury and General Government Appropriations Act,
1999,\119\ enacted as part of the Omnibus Consolidated and Emergency
Supplemental Appropriations Act, 1999.\120\ DHS has systematically
reviewed the criteria specified in section 654(c)(1), by evaluating
whether this regulatory action: (1) Impacts the stability or safety of
the family, particularly in terms of marital commitment; (2) impacts
the authority of parents in the education, nurture, and supervision of
their children; (3) helps the family perform its functions; (4) affects
disposable income or poverty of families and children; (5) only
financially impacts families, if at all, to the extent such impacts are
justified; (6) may be carried out by State or local government or by
the family; or (7) establishes a policy concerning the relationship
between the behavior and personal responsibility of youth and the norms
of society. If the agency determines a regulation may negatively affect
family well-being, then the agency must provide an adequate rationale
for its implementation.
---------------------------------------------------------------------------

\119\ See 5 U.S.C. 601 note.
\120\ Public Law 105-277, 112 Stat. 2681 (1998).
---------------------------------------------------------------------------

DHS has determined that the implementation of this regulation will
not negatively affect family well-being and will not have any impact on
the autonomy or integrity of the family as an institution.

J. Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-12, DHS
must submit to OMB, for review and approval, any reporting requirements
inherent in a rule, unless they are exempt. See Public Law 104-13, 109
Stat. 163 (May 22, 1995). The Information Collection Table 45 below
shows the summary of forms that are part of this rulemaking.

Table 45--Information Collection Changes Associated With This Final Rule
------------------------------------------------------------------------
Type of
OMB control No. Form No. and title information
collection
------------------------------------------------------------------------
1615-0048....................... Form I-907, Revision of a
Request for Currently
Premium Approved
Processing Collection.
Service.
1615-0003....................... Form I-539, No material or non-
Application to substantive
Extend/Change change of a
Nonimmigrant Currently
Status. Approved
Collection.
1615-0040....................... Form I-765, No material of non-
Application for substantive
Employment change of a
Authorization. Currently
Approved
Collection.
1615-0009....................... Form I-129, No material or non-
Petition for a substantive
Nonimmigrant change to a
Worker. currently
approved
collection.
1615-0015....................... Form I-140, No material or non-
Immigrant substantive
Petition for an change to a
Alien Worker. currently
approved
collection.
------------------------------------------------------------------------

USCIS will revise one information collection in association with this
rulemaking action (see table above where the Type of Information
Collection column states: ``Revision of a Currently Approved
Collection''). This final rule will also require non-substantive edits
to the forms listed above where the Type of Information Collection
column states, ``No material/non-substantive change to a currently
approved collection.'' Accordingly, USCIS has submitted a Paperwork
Reduction Act Change Worksheet, Form OMB 83-C, and amended information
collection instruments to OMB for review and approval in accordance
with the PRA.
USCIS Form I-907
DHS and USCIS invite the general public and other Federal agencies
to comment on the impact to the proposed collection of information. In
accordance with the PRA, the information collection notice is published
in the Federal Register to obtain comments regarding the proposed edits
to the information collection instrument.
Comments are encouraged and will be accepted for 60 days from the
publication date of this final rule. All submissions received must
include the OMB Control Number 1615-0048 in the body of the letter, the
agency name, and Docket No. USCIS-2006-0025. Submit comments via the
Federal eRulemaking Portal website at https://www.regulations.gov under
e-Docket ID number USCIS-2006-0025. To avoid duplicate submissions,
please only

[[Page 18260]]

submit comments according to the instructions specified in this rule.
Comments on this information collection should address one or more of
the following four points:

(1) Evaluate whether the collection of information is necessary
for the proper performance of the functions of the agency, including
whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden
of the collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information
to be collected; and
(4) Minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g.,
permitting electronic submission of responses.
Overview of Information Collection
(1) Type of Information Collection: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: Request for Premium Processing
Service.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: I-907; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. USCIS
uses the data collected on this form to process a request for premium
processing. The form serves the purpose of standardizing requests for
premium processing and ensures that basic information required to
assess eligibility is provided by the applicant or employer/petitioner.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection I-907 is
815,773 and the estimated hour burden per response is 0.58 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 473,148 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $202,923,534.

List of Subjects in 8 CFR Part 106

Fees, Immigration.

Accordingly, the Department of Homeland Security amends part 106 of
chapter I of title 8 of the Code of Federal Regulations as follows:

PART 106--USCIS Fee Schedule

0
1. The authority citation for part 106 is revised to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1254a, 1254b, 1304, 1356; Pub.
L. 107-609; 48 U.S.C. 1806; Pub. L. 115-218; Pub. L. 116-159.

0
2. Section 106.4 is revised to read as follows:

Sec. 106.4 Premium processing service.

(a) General. A person may submit a request to USCIS for premium
processing of certain immigration benefit requests, subject to
processing timeframes and fees, as described in this section.
(b) Submitting a request. A request must be submitted on the form
and in the manner prescribed by USCIS in the form instructions. If the
request for premium processing is submitted together with the
underlying immigration benefit request, all required fees in the
correct amount must be paid. The fee to request premium processing
service may not be waived and must be paid in addition to, and in a
separate remittance from, other filing fees.
(c) Designated benefit requests and fee amounts. Benefit requests
designated for premium processing and the corresponding fees to request
premium processing service are as follows:
(1) Application for classification of a nonimmigrant described in
section 101(a)(15)(E)(i), (ii), or (iii) of the INA--$2,500.
(2) Petition for classification of a nonimmigrant described in
section 101(a)(15)(H)(i)(b) of the INA or section 222(a) of the
Immigration Act of 1990, Public Law 101-649--$2,500.
(3) Petition for classification of a nonimmigrant described in
section 101(a)(15)(H)(ii)(b) of the INA--$1,500.
(4) Petition for classification of a nonimmigrant described in
section 101(a)(15)(H)(iii) of the INA--$2,500.
(5) Petition for classification of a nonimmigrant described in
section 101(a)(15)(L) of the INA--$2,500.
(6) Petition for classification of a nonimmigrant described in
section 101(a)(15)(O)(i) or (ii) of the INA--$2,500.
(7) Petition for classification of a nonimmigrant described in
section 101(a)(15)(P)(i), (ii), or (iii) of the INA--$2,500.
(8) Petition for classification of a nonimmigrant described in
section 101(a)(15)(Q) of the INA--$2,500.
(9) Petition for classification of a nonimmigrant described in
section 101(a)(15)(R) of the INA--$1,500.
(10) Application for classification of a nonimmigrant described in
section 214(e) of the INA--$2,500.
(11) Petition for classification under section 203(b)(1)(A) of the
INA--$2,500.
(12) Petition for classification under section 203(b)(1)(B) of the
INA--$2,500.
(13) Petition for classification under section 203(b)(2)(A) of the
INA not involving a waiver under section 203(b)(2)(B) of the INA--
$2,500.
(14) Petition for classification under section 203(b)(3)(A)(i) of
the INA--$2,500.
(15) Petition for classification under section 203(b)(3)(A)(ii) of
the INA--$2,500.
(16) Petition for classification under section 203(b)(3)(A)(iii) of
the INA--$2,500.
(17) Petition for classification under section 203(b)(1)(C) of the
INA--$2,500.
(18) Petition for classification under section 203(b)(2) of the INA
involving a waiver under section 203(b)(2)(B) of the INA--$2,500.
(19) Application under section 248 of the INA to change status to a
classification described in section 101(a)(15)(F), (J), or (M) of the
INA--$1,750.
(20) Application under section 248 of the INA to change status to
be classified as a dependent of a nonimmigrant described in section
101(a)(15)(E), (H), (L), (O), (P), or (R) of the INA, or to extend stay
in such classification--$1,750.
(21) Application for employment authorization--$1,500.
(d) Fee adjustments. The fee to request premium processing service
may be adjusted by notice in the Federal Register on a biennial basis
based on the percentage by which the Consumer Price Index for All Urban
Consumers for the month of June preceding the date on which such
adjustment takes effect exceeds the Consumer Price Index for All Urban
Consumers for the same month of the second preceding calendar year.
(e) Processing timeframes. The processing timeframes for a request
for premium processing are as follows:
(1) Application for classification of a nonimmigrant described in
section 101(a)(15)(E)(i), (ii), or (iii) of the INA--15 days.
(2) Petition for classification of a nonimmigrant described in
section 101(a)(15)(H)(i)(b) of the INA or section 222(a) of the
Immigration Act of 1990, Public Law 101-649--15 days.
(3) Petition for classification of a nonimmigrant described in
section 101(a)(15)(H)(ii)(b) of the INA--15 days.
(4) Petition for classification of a nonimmigrant described in
section 101(a)(15)(H)(iii) of the INA--15 days.

[[Page 18261]]

(5) Petition for classification of a nonimmigrant described in
section 101(a)(15)(L) of the INA--15 days.
(6) Petition for classification of a nonimmigrant described in
section 101(a)(15)(O)(i) or (ii) of the INA--15 days.
(7) Petition for classification of a nonimmigrant described in
section 101(a)(15)(P)(i), (ii), or (iii) of the INA--15 days.
(8) Petition for classification of a nonimmigrant described in
section 101(a)(15)(Q) of the INA--15 days.
(9) Petition for classification of a nonimmigrant described in
section 101(a)(15)(R) of the INA--15 days.
(10) Application for classification of a nonimmigrant described in
section 214(e) of the INA--15 days.
(11) Petition for classification under section 203(b)(1)(A) of the
INA--15 days.
(12) Petition for classification under section 203(b)(1)(B) of the
INA--15 days.
(13) Petition for classification under section 203(b)(2)(A) of the
INA not involving a waiver under section 203(b)(2)(B) of the INA--15
days.
(14) Petition for classification under section 203(b)(3)(A)(i) of
the INA--15 days.
(15) Petition for classification under section 203(b)(3)(A)(ii) of
the INA--15 days.
(16) Petition for classification under section 203(b)(3)(A)(iii) of
the INA--15 days.
(17) Petition for classification under section 203(b)(1)(C) of the
INA--45 days.
(18) Petition for classification under section 203(b)(2) of the INA
involving a waiver under section 203(b)(2)(B) of the INA--45 days.
(19) Application under section 248 of the INA to change status to a
classification described in section 101(a)(15)(F), (J), or (M) of the
INA--30 days.
(20) Application under section 248 of the INA to change status to
be classified as a dependent of a nonimmigrant described in section
101(a)(15)(E), (H), (L), (O), (P), or (R) of the INA, or to extend stay
in such classification--30 days.
(21) Application for employment authorization--30 days.
(f) Processing requirements and refunds. (1) USCIS will issue an
approval notice, denial notice, a notice of intent to deny, or a
request for evidence within the premium processing timeframe.
(2) Premium processing timeframes will commence:
(i) For those benefits described in paragraphs (e)(1) through (16)
of this section, on the date the form prescribed by USCIS, together
with the required fee(s), are received by USCIS.
(ii) For those benefits described in paragraphs (e)(17) through
(21) of this section, on the date that all prerequisites for
adjudication, the form prescribed by USCIS, and fee(s) are received by
USCIS.
(3) In the event USCIS issues a notice of intent to deny or a
request for evidence, the premium processing timeframe will stop. The
premium processing timeframe as specified in paragraphs (e)(1) through
(21) of this section will start over on the date that USCIS receives a
response to the notice of intent to deny or the request for evidence.
(4) Except as provided in paragraph (f)(5) of this section, USCIS
will refund the premium processing service fee but continue to process
the case if USCIS does not take adjudicative action described in
paragraph (f)(1) of this section within the applicable processing
timeframe as required in paragraph (e) of this section.
(5) USCIS may retain the premium processing fee and not take an
adjudicative action described in paragraph (f)(1) of this section on
the request within the applicable processing timeframe, and not notify
the person who filed the request, if USCIS opens an investigation for
fraud or misrepresentation relating to the immigration benefit request.
(g) Availability. (1) USCIS will announce by its official internet
website, currently http://www.uscis.gov, the benefit requests described
in paragraph (c) of this section for which premium processing may be
requested, the dates upon which such availability commences or ends,
and any conditions that may apply.
(2) USCIS may suspend the availability of premium processing for
immigration benefit requests designated for premium processing if
circumstances prevent the completion of processing of a significant
number of such requests within the applicable processing timeframe.

Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2022-06742 Filed 3-29-22; 8:45 am]
BILLING CODE 9111-97-P