[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
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 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 
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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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    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.\4\
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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).
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    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).
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     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.
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    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\
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    \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).
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    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.
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    \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).
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    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).
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    \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\
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    \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.
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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\
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    \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\
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    \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).
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(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.
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    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.
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    \112\ See 2 U.S.C. 1532(a).
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    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.
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    \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).
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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\
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    \115\ 40 CFR parts 1500 through 1508.
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    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\
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    \116\ 40 CFR 1507.3(e)(2)(ii) and 1501.4.
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    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\
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    \117\ See Appendix A, Table 1.
    \118\ Instruction Manual section V.B(2)(a) through (c).
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    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.
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    \119\ See 5 U.S.C. 601 note.
    \120\ Public Law 105-277, 112 Stat. 2681 (1998).
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    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