[Federal Register Volume 89, Number 21 (Wednesday, January 31, 2024)]
[Rules and Regulations]
[Pages 6194-6400]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01427]
[[Page 6193]]
Vol. 89
Wednesday,
No. 21
January 31, 2024
Part II
Department of Homeland Security
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8 CFR Parts 103, 106, 204,, et al.
U.S. Citizenship and Immigration Services Fee Schedule and Changes to
Certain Other Immigration Benefit Request Requirements; Final Rule
Federal Register / Vol. 89 , No. 21 / Wednesday, January 31, 2024 /
Rules and Regulations
[[Page 6194]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 103, 106, 204, 212, 214, 240, 244, 245, 245a, 264, and
274a
[CIS No. 2687-21; DHS Docket No. USCIS 2021-0010]
RIN 1615-AC68
U.S. Citizenship and Immigration Services Fee Schedule and
Changes to Certain Other Immigration Benefit Request Requirements
AGENCY: U.S. Citizenship and Immigration Services (USCIS), Department
of Homeland Security (DHS).
ACTION: Final rule.
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SUMMARY: This final rule adjusts certain immigration and naturalization
benefit request fees charged by USCIS. This rule also provides
additional fee exemptions for certain humanitarian categories and makes
changes to certain other immigration benefit request requirements.
USCIS conducted a comprehensive biennial fee review and determined that
current fees do not recover the full cost of providing adjudication and
naturalization services. DHS is adjusting the fee schedule to fully
recover costs and maintain adequate service. This final rule also
responds to public comments received on the USCIS proposed fee schedule
published on January 4, 2023.
DATES: This final rule is effective April 1, 2024. Any benefit request
postmarked on or after this date must be accompanied with the fees
established by this final rule.
Public Engagement date: DHS will hold a virtual public engagement
session during which USCIS will discuss the changes made in this final
rule. The session will be held at 2 p,m. Eastern on Feb. 22, 2024.
Register for the engagement here: https://public.govdelivery.com/accounts/USDHSCIS/subscriber/new?topic_id=USDHSCIS_1081.
USCIS will allot time during the session to answer questions
submitted in advance. Please email questions to
[email protected] by 4 p.m. Eastern on Thursday, Feb. 8,
2024, and use ``Fee Rule Webinar'' in the subject link. Please note
that USCIS cannot answer case-specific inquiries during the session.
ADDRESSES: Docket: To view comments on the proposed rule that preceded
this rule, search for docket number USCIS 2021-0010 on the Federal
eRulemaking Portal at https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Carol Cribbs, Deputy Chief Financial
Officer, U.S. Citizenship and Immigration Services, Department of
Homeland Security, 5900 Capital Gateway Dr., Camp Springs, MD 20746;
telephone 240-721-3000 (this is not a toll-free number).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
A. Purpose of the Regulatory Action
B. Legal Authority
C. Changes From the Proposed Rule
D. Summary of Final Fees
E. Summary of Costs and Benefits
F. Effect of the COVID-19 Pandemic on the USCIS Fee Review and
Rulemaking
II. Background
A. History
B. Authority and Guidance
C. Changes From the Proposed Rule
D. Corrections
E. Status of Previous USCIS Fee Regulations
F. Severability
III. Related Rulemakings and Policies
A. New Processes
B. Effects of Temporary Programs or Discretionary Programs and
Processes
C. Lawful Pathways Rule
D. Premium Processing--Emergency Stopgap USCIS Stabilization Act
E. Premium Processing Inflation Adjustment
F. EB-5 Reform and Integrity Act of 2022 and Related Rules
G. Modernizing H-1B Requirements, Providing Flexibility in the
F-1 Program, and Program Improvements Affecting Other Nonimmigrant
Workers
H. Citizenship and Naturalization and Other Related
Flexibilities
I. 9-11 Response and Biometric Entry-Exit Fee for H-1B and L-1
Nonimmigrant Workers (Pub. L. 114-113 Fees)
IV. Response to Public Comments on the Proposed Rule
A. Summary of Comments on the Proposed Rule
B. General Feedback on the Proposed Rule
C. Basis for the Fee Review
D. FY 2022/2023 IEFA Fee Review
E. Fee Waivers
F. Fee Exemptions
G. Fee Changes by Benefit Category
H. Statutory and Regulatory Requirements
I. Out of Scope
V. Statutory and Regulatory Requirements
A. Executive Order 12866 (Regulatory Planning and Review),
Executive Order 13563 (Improving Regulation and Regulatory Review)
and Executive Order 14094 (Modernizing Regulatory Review)
B. Regulatory Flexibility Act--Final Regulatory Flexibility
Analysis (FRFA)
C. Small Business Regulatory Enforcement Fairness Act of 1996
(Congressional Review Act)
D. Unfunded Mandates Reform Act
E. Executive Order 12132 (Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. Executive Order 13175 (Consultation and Coordination With
Tribal Governments)
H. Family Assessment
I. National Environmental Policy Act (NEPA)
J. Paperwork Reduction Act
List of Acronyms and Abbreviations
AAO Administrative Appeals Office
ABC Activity-Based Costing
ACWIA American Competitiveness and Workforce Improvement Act
APA Administrative Procedure Act
APD Advance Parole Documents
ASVVP Administrative Site Visit and Verification Program
BFD Bona Fide Determination
CAA Cuban Adjustment Act of 1966
CBP U.S. Customs and Border Protection
CFO Chief Financial Officer
CFR Code of Federal Regulations
CIS The Office of the Citizenship and Immigration Services
COVID Coronavirus Disease
CPI-U Consumer Price Index for All Urban Consumers
DACA Deferred Action for Childhood Arrivals
DHS Department of Homeland Security
DOD Department of Defense
DOJ Department of Justice
DOL Department of Labor
DOS Department of State
EAD Employment Authorization Document
EB-5 Employment-Based Immigrant Visa, Fifth Preference
EIN Employer Identification Number
E.O. Executive Order
EOIR Executive Office for Immigration Review
FDNS Fraud Detection and National Security Directorate
FOIA Freedom of Information Act
FPG Federal Poverty Guidelines
FR Federal Register
FRFA Final Regulatory Flexibility Analysis
FTE Full-Time Equivalent
FY Fiscal Year
GAO Government Accountability Office
HHS Department of Health and Human Services
HRIFA Haitian Refugee Immigration Fairness Act
ICE U.S. Immigration and Customs Enforcement
IEFA Immigration Examinations Fee Account
IFR Interim final rule
INA Immigration and Nationality Act of 1952
INS Immigration and Naturalization Service
IPO Immigrant Investor Program Office
IRS Internal Revenue Service
ISAF International Security Assistance Forces
IT information technology
IOAA Independent Offices Appropriations Act
LPR Lawful Permanent Resident
NACARA Nicaraguan Adjustment and Central American Relief Act
NAICS North American Industry Classification System
NARA National Archives and Records Administration
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NEPA National Environmental Policy Act
NOID Notice of Intent to Deny
NPRM Notice of Proposed Rulemaking
NRC National Records Centers
OAW Operation Allies Welcome
OIG DHS Office of the Inspector General
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
OPT Optional Practical Training
PRA Paperwork Reduction Act of 1995
PRC Permanent Resident Card or Green Card \1\
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\1\ DHS uses the informal term ``Green Card'' interchangeably
with or to refer to a Permanent Resident Card, USCIS Form I-551.
See, e.g., Green Card, at https://www.uscis.gov/green-card (last
viewed Dec. 5, 2023).
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Pub. L. Public Law
RFA Regulatory Flexibility Act
RFE Requests for Evidence
RIA Regulatory Impact Analysis
SBA Small Business Administration
SEA Small Entity Analysis
Secretary Secretary of Homeland Security
SIJ Special Immigrant Juvenile
SNAP Supplemental Nutrition Assistance Program
SSI Supplemental Security Income
SSN Social Security number
Stat. U.S. Statutes at Large
STEM Science, Technology, Engineering, and Mathematics
TPS Temporary Protected Status
TVPRA William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008
UMRA Unfunded Mandates Reform Act of 1995
U.S.C. United States Code
USCIS U.S. Citizenship and Immigration Services
USDA U.S. Department of Agriculture
VAWA Violence Against Women Act
VTVPA Victims of Trafficking and Violence Protection Act of 2000
I. Executive Summary
A. Purpose of the Regulatory Action
DHS is adjusting the fee schedule for U.S. Citizenship and
Immigration Services (USCIS) immigration benefit requests.\2\ As stated
in the proposed rule, USCIS is primarily funded by fees charged to
applicants and petitioners for immigration and naturalization benefit
requests. Fees collected from individuals and entities filing
immigration benefit requests are deposited into the Immigration
Examinations Fee Account (IEFA). These fee collections fund the cost of
fairly and efficiently adjudicating immigration benefit requests,
including those provided without charge to refugee, asylum, and certain
other applicants or petitioners. The focus of this fee review is the
fees that DHS has established and is authorized by INA section 286(m),
8 U.S.C 1356(m), to establish or change, collect, and deposit into the
IEFA, which comprised approximately 96 percent of USCIS' total FY 2021
enacted spending authority; this fee review does not focus on fees that
USCIS is required to collect but cannot change. Most of these fees have
not changed since 2016 despite increased costs of federal salaries and
inflation costs for other goods and services. This rule also revises
the genealogy program fees established under INA section 286(t), 8
U.S.C. 1356(t), and those funds are also deposited into the IEFA.
Premium processing funds established under INA section 286(u), 8 U.S.C.
1356(u) are also IEFA fees, but premium processing fees do not change
in this rule.
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\2\ DHS uses the term ``benefit request'' throughout this rule
as defined in 8 CFR 1.2 to mean any application, petition, motion,
appeal, or other request relating to an immigration or
naturalization benefit. The term benefit request applies regardless
of if the title of the request uses the term petition (e.g.,
Petition for Nonimmigrant Worker), application (e.g., Application
for Naturalization) or request (e.g., Request for Fee Waiver).
Accordingly, ``requestor'' is a synonym for applicant or petitioner.
Immigration benefit request or benefit request is also used even if
USCIS approval of the request does not result in an immigration
benefit, status, visa, or classification, such as requests related
to inadmissibility waivers and the USCIS genealogy program. Using
the term benefit request reduces the ambiguity and confusion
resulting from the repetitive use of application, petition,
applicant, and petitioner, and improves readability without
substantive legal effect. 76 FR 53764, 53767 (Aug. 11, 2011).
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In accordance with the requirements and principles of the Chief
Financial Officers Act of 1990 (CFO Act), codified at 31 U.S.C. 901-03,
and Office of Management and Budget (OMB) Circular A-25, USCIS
conducted a comprehensive fee review for the Fiscal Year (FY) 2022/2023
biennial period, refined its cost accounting process, and determined
that current fees do not recover the full costs of services provided.
DHS determined that adjusting USCIS' fee schedule is necessary to fully
recover costs and maintain adequate service. This final rule also
increases the populations that are exempt from certain fees and
clarifies filing requirements for nonimmigrant workers, requests for
premium processing, and other administrative requirements.
B. Legal Authority
DHS's authority is in several statutory provisions. Section 102 of
the Homeland Security Act of 2002,\3\ 6 U.S.C. 112, and section 103 of
the Immigration and Nationality Act of 1952 (INA), 8 U.S.C. 1103,
charge the Secretary with the administration and enforcement of the
immigration and naturalization laws of the United States. Specific
authority for establishing multiple USCIS fees is found in INA sec.
286, 8 U.S.C. 1356, and more specifically section 286(m), 1356(m)
(authorizing DHS to charge fees for adjudication and naturalization
services at a level to ``ensure recovery of the full costs of providing
all such services, including the costs of similar services provided
without charge to asylum applicants and other immigrants'').\4\
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\3\ Public Law 107-296, 116 Stat. 2135, 2142-44 (Nov. 25, 2002).
\4\ The longstanding interpretation of DHS is that the
``including'' clause in INA sec. 286(m) does not constrain DHS's fee
authority under the statute. The ``including'' clause offers only a
non-exhaustive list of some of the costs that DHS may consider part
of the full costs of providing adjudication and naturalization
services. See INA sec. 286(m), 8 U.S.C. 1356(m); 84 FR 23930, 23932
n.1 (May 23, 2019); 81 FR 26903, 26906 n.10 (May 4, 2016).
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C. Changes From the Proposed Rule
As explained more fully in part II.C. of this preamble, DHS is
making several changes in this final rule based on comments received on
the proposed rule or in exercising its authority to establish fees,
provide fee exemptions, allow fee waivers, provide lower fees, or shift
the costs of benefits and services based on adequately funding USCIS,
balancing beneficiary-pays and ability-to-pay principles, burdening
requestors and USCIS, considering humanitarian concerns, and other
policy objectives as supported by data. The changes are as follows:
1. Reduced Costs and Fees
DHS proposed to recover $5,150.7 million in FY 2022/2023 to fulfill
USCIS' operational requirements. See 88 FR 402, 428 (Jan. 4, 2023). In
this final rule, USCIS revises the FY 2022/2023 cost projection to
approximately $4,424.0 million. DHS removes approximately $726.7
million of average annual estimated costs by transferring costs to
premium processing revenue, reducing the work to be funded by the
Asylum Program Fee, and considering the budget effects of improved
efficiency measures.
2. Changes in the Asylum Program Fee
DHS proposed a new Asylum Program Fee of $600 to be paid by
employers who file either a Form I-129, Petition for a Nonimmigrant
Worker, Form I-129CW, Petition for a CNMI-Only Nonimmigrant
Transitional Worker, or Form I-140, Immigrant Petition for Alien
Worker. 88 FR 451. In the final rule, DHS exempts the Asylum Program
Fee for nonprofit petitioners and reduces it by half for small
employers. See 8 CFR 106.2(c)(13). The fee will be $0 for nonprofits;
$300 for small employers (defined as firms or individuals having 25 or
fewer FTE
[[Page 6196]]
employees); and $600 for all other filers of Forms I-129 and I-140. See
8 CFR 106.1(f) and 106.2(c)(13).
3. Changes to Employment-Based Immigrant Visa, Fifth Preference (EB-5)
Fees
DHS has updated the USCIS volume forecasts for the EB-5 workload
based on more recent and reliable information than what was available
while drafting the proposed rule. Increasing the fee-paying receipt
forecasts for these workloads conversely increased the estimated
revenue generated by EB-5 fees. DHS also revised the USCIS budget to
reflect these changes.
4. Changes to H-1B Registration Fees
DHS also revises the USCIS volume forecasts for H-1B registration
workload, to 424,400, based on more recent information than was
available while drafting the proposed rule, such as the total
registrations for the FY 2023 cap year. The proposed rule forecasted
273,990 H-1B registrations. 88 FR 402, 437 (Jan. 4, 2023). This change
increases the estimated revenue generated by the H-1B registration fees
in the final rule.
5. Online Filing Fees
The proposed rule provided lower fees for some online requests
based on estimated costs for online and paper filing. See 88 FR 402,
489-491. The fee differences between paper and online filing ranged
from $10 to $110. Id. This final rule provides a $50 discount for forms
filed online with USCIS. See 8 CFR 106.1(g). The discount is not
applied in limited circumstances, such as when the form fee is already
provided at a substantial discount or USCIS is prohibited by law from
charging a full cost recovery level fee. See, e.g., 8 CFR
106.2(a)(50)(iv).
6. Adjust Fees for Forms Filed by Individuals by Inflation
The proposed rule included a wide range of proposed fees. In this
final rule, (a) DHS holds several fees to the rate of inflation since
the previous fee increase in 2016, and (b) if the proposed fee was less
than the current fee adjusted for inflation, then DHS sets the fee in
this rule at the level proposed. Except for certain employment-based
benefit request fees, if proposed fees were less than the rate of
inflation, then DHS finalizes the proposed fee or a lower fee. A
comparison of current, proposed, and final fees can be found in Table
1.
7. Fee Exemptions and Fee Waivers
The proposed rule included new fee exemptions and proposed to
codify existing fee exemptions. See 88 FR 402, 459-481 (Jan. 4, 2023).
This final rule expands fee exemptions for humanitarian filings. See
section II.C.; 8 CFR 106.3(b). The final rule also codifies the 2011
Fee Waiver Policy \5\ criteria that USCIS may grant a request for fee
waiver if the requestor demonstrates an inability to pay based on
receipt of a means-tested benefit, household income at or below 150
percent of the Federal Poverty Guidelines (FPG), or extreme financial
hardship. See 8 CFR 106.3(a)(1).
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\5\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, Policy Memorandum, PM-602-0011.1, ``Fee Waiver
Guidelines as Established by the final rule of the USCIS Fee
Schedule; Revisions to Adjudicator's Field Manual (AFM) Chapter
10.9, AFM Update AD11-26'' (Mar. 13, 2011), https://www.uscis.gov/sites/default/files/document/memos/FeeWaiverGuidelines_Established_by_the_Final%20Rule_USCISFeeSchedule.pdf.
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DHS proposed 8 CFR 106.3(a)(2) to require that a request for a fee
waiver be submitted on the form prescribed by USCIS in accordance with
the instructions on the form. In the final rule, USCIS will maintain
the status quo of accepting either Form I-912, Request for Fee Waiver,
or a written request, and revert to the current effective language at 8
CFR 103.7(c)(2) (Oct. 1, 2020).
DHS also decided to modify the instructions for Form I-912 to
accept evidence of receipt of a means-tested benefit by a household
child as evidence of the parent's inability to pay because the child's
eligibility for these means-tested benefits is dependent on household
income.
8. Procedural Changes To Address Effects of Fee Exemptions and
Discounts
DHS is making five procedural changes in the final rule to address
issues that it has experienced with fee-exempt and low-fee filings.
First, the final rule provides that a duplicate filing that is
materially identical to a pending immigration benefit request will be
rejected. See 8 CFR 103.2(a)(7)(iv). Second, in the final rule DHS
provides that if USCIS accepts a benefit request and determines later
that the request was not accompanied by the correct fee, USCIS may deny
the request. See 8 CFR 103.2(a)(7)(ii)(D)(1). Third, if the benefit
request was approved before USCIS determines the correct fee was not
paid, the approval may be revoked upon notice. Id. Fourth, the first
sentence of proposed 8 CFR 106.1(c)(2), stated, ``If the benefit
request was approved, the approval may be revoked upon notice.'' DHS is
revising the first sentence to read, ``If the benefit request was
approved, the approval may be revoked upon notice, rescinded, or
canceled subject to statutory and regulatory requirements applicable to
the immigration benefit request.'' Reference to applicable statutes and
regulations is also added to the last sentence of section 106.1(c)(2).
Finally, this final rule provides that USCIS may forward an appeal for
which the fee is waived or exempt for adjudication without requiring a
review by the official who made the unfavorable decision. 8 CFR
103.3(a)(2)(ii).
9. Adjustment of Status (Form I-485) and Family-Based Fees
In this final rule, DHS provides that Form I-485, Application to
Register Permanent Residence or Adjust Status, applicants will pay half
of the regular Form I-765, Application for Employment Authorization,
fee when it is filed with a Form I-485 for which the fee is paid if the
adjustment application is pending. See 8 CFR 106.2(a)(44)(i). DHS had
proposed requiring the full fee for Form I-765, and Form I-131,
Application for Travel Document, when filed with Form I-485. See 88 FR
402, 491. DHS is setting the filing fee for a Form I-765 filed
concurrently with Form I-485 after the effective date at $260. See 8
CFR 106.2(a)(44)(i).
The proposed rule also would have ($1,540). See 88 FR 402, 494
(Jan. 4, 2023). In the final rule, DHS provides that, when filing with
parents, children will pay a lesser fee of $950 for Form I-485. See 8
CFR 106.2(a)(20)(ii).
10. Adoption Forms
In the final rule, DHS is providing additional fee exemptions for
adoptive families. See 8 CFR 106.2(a)(32) and (48). Specifically, DHS
will also provide fee exemptions for second extensions, second change
of country requests, and duplicate approval notices for both the orphan
and the Hague process. These would all be requested using Supplement 3
for either the orphan (Form I-600/I-600A) or Hague (Form I-800A)
process. This is in addition to the exemptions that DHS already
provides for the Supplement 3 for first extensions and first change of
country requests. The final rule also provides that Forms N-600,
Application for Certificate of Citizenship, and N-600K, Application for
Citizenship and Issuance of Certificate under Section 322, are fee
exempt for certain adoptees. See 8 CFR 106.2(b)(7)(ii) and (8).
11. Naturalization and Citizenship Fees
This final rule expands eligibility for paying half of the regular
fee for Form N-400, Application for Naturalization. An applicant with
household income at or below 400 percent of Federal Poverty Guidelines
(FPG) may pay half price for
[[Page 6197]]
their Application for Naturalization. See 8 CFR 106.2(b)(3)(ii).
12. Additional Changes
In the final rule:
DHS deletes proposed 8 CFR 106.3(a)(5), ``Fees under the
Freedom of Information Act (FOIA),'' because it is unnecessary. DHS
FOIA regulations at 6 CFR 5.11(k) address the waiver of fees under
FOIA, 5 U.S.C. 552(a)(4)(A)(iii).
Removes the fee exemption for Form I-601, Application for
Waiver of Grounds of Inadmissibility, for applicants seeking
cancellation of removal under INA 240A(b)(2), 8 U.S.C. 1229b(b)(2),
since they cannot use a waiver of inadmissibility to establish
eligibility for this type of relief from removal. Matter of Y-N-P-, 26
I&N Dec. 10 (BIA 2012); cf. proposed 8 CFR 106.3(b)(8)(i).
Provides a 30-day advance public notification requirement
before a payment method will be changed. 8 CFR 106.1(b).
Provides that an inflation only rule must adjust all USCIS
fees that DHS has the authority to adjust under the INA (those not
fixed by statute).
D. Summary of Final Fees
The fees established in this rule are summarized in the Final
Fee(s) column in Table 1. Table 1 compares the current fees to the fees
established in this rule. In addition, the new fees and exemptions are
incorporated into the Form G-1055, Fee Schedule, as part of the docket
for this rulemaking.
The Current Fee(s) column in Table 1 represents the current fees in
effect rather than the enjoined fees from the 2020 fee rule.\6\
Throughout this final rule, the phrase ``current fees'' refers to the
fees in effect and not the enjoined fees.
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\6\ USCIS provides filing fee information on the All Forms page
at https://www.uscis.gov/forms/all-forms. You can use the Fee
Calculator to determine the exact filing and biometric services fees
for any form processed at a USCIS Lockbox facility. See U.S.
Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security, Fee
Calculator, https://www.uscis.gov/feecalculator. For a complete list
of all USCIS fees, see Form G-1055, Fee Schedule, available from
https://www.uscis.gov/g-1055.
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In some cases, the current or final fees may be the sum of several
fees. For example, several immigration benefit requests require an
additional biometric services fee under the current fee structure. The
table includes rows with and without the additional biometric services
fee added to the Current Fee(s) column. In this final rule, DHS would
eliminate the additional biometric services fee in most cases by
including the costs in the underlying immigration benefit request fee.
As such, the Final Fees(s) column does not include an additional
biometric services fee in most cases.
Some other benefit requests are listed several times because in
some cases DHS proposes distinct fees based on filing methods, online
or paper. DHS will require fees for Form I-131, Application for Travel
Document, and Form I-765, Application for Employment Authorization,
when filed with Form I-485, Application to Register Permanent Residence
or Adjust Status, in most cases. As such, Table 1 includes rows that
compare the current fee for Form I-485 to various combinations of the
final fees for Forms I-485, I-131, and I-765.
The table excludes statutory fees that DHS cannot adjust or can
only adjust for inflation. Instead, the table focuses on the IEFA non-
premium fees that DHS is changing in this rule.
BILLING CODE 9111-97-P
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[GRAPHIC] [TIFF OMITTED] TR31JA24.000
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[GRAPHIC] [TIFF OMITTED] TR31JA24.001
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[GRAPHIC] [TIFF OMITTED] TR31JA24.002
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[GRAPHIC] [TIFF OMITTED] TR31JA24.003
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[GRAPHIC] [TIFF OMITTED] TR31JA24.004
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[GRAPHIC] [TIFF OMITTED] TR31JA24.005
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[GRAPHIC] [TIFF OMITTED] TR31JA24.006
BILLING CODE 9111-97-C
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E. Summary of Costs and Benefits
The fee adjustments, as well as changes to the forms and fee
structures used by USCIS, will result in net costs, benefits, and
transfer payments. For the 10-year period of analysis of the rule (FY
2024 through FY 2033), DHS estimates the annualized net costs to the
public will be $157,005,952 discounted at 3 and 7 percent. Estimated
total net costs over 10 years will be $1,339,292,617 discounted at 3-
percent and $1,102,744,106 discounted at 7-percent.
The changes in the final rule will also provide several benefits to
DHS and applicants/petitioners seeking immigration benefits. For the
government, the primary benefits include reduced administrative burdens
and fee processing errors, increased efficiency in the adjudicative
process, and the ability to better assess the cost of providing
services, which allows for better aligned fees in future regulations.
The primary benefits to the applicants/petitioners include reduced fee
processing errors, increased efficiency in the adjudicative process,
the simplification of the fee payment process for some forms,
elimination of the $30 returned check fee, and for many applicants,
limited fee increases and additional fee exemptions to reduce fee
burdens.
Fee increases will result in annualized transfer payments from
applicants/petitioners to USCIS of approximately $887,571,832
discounted at 3 and 7 percent. The total 10-year transfer payments from
applicants/petitioners to USCIS will be $7,571,167,759 at a 3-percent
discount rate and $6,233,933,135 at a 7-percent discount rate.
Reduced fees and expanded fee exemptions will result in annualized
transfer payments from USCIS to applicants/petitioners of approximately
$241,346,879 discounted at both 3-percent and 7-percent. The total 10-
year transfer payments from USCIS to applicants/petitioners will be
$2,058,737,832 at a 3-percent discount rate and $1,695,119,484 at a 7-
percent discount rate. The annualized transfer payments from the
Department of Defense (DOD) to USCIS for Form N-400 filed by military
members will be approximately $197,260 at both 3- and 7-percent
discount rates. The total 10-year transfer payments from DOD to USCIS
will be $1,682,668 at a 3-percent discount rate and $1,385,472 at a 7-
percent discount rate.
Adding annualized transfer payments from fee paying applicants/
petitioners to USCIS ($887,571,832) and transfer payments from DoD to
USCIS ($197,260), then subtracting transfer payments from USCIS to
applicants/petitioners ($241,346,879) yields estimated net transfer
payments to USCIS of $646,422,213 at both 3 and 7-percent discount
rates, an approximation of additional annual revenue to USCIS from this
rule.
F. Effect of the COVID-19 Pandemic on the USCIS Fee Review and
Rulemaking
DHS acknowledges the broad effects of the Coronavirus Disease
(COVID-19) international pandemic on the United States broadly and the
populations affected by this rule. Multiple commenters on the proposed
rule wrote that increasing USCIS fees at this time would exacerbate the
negative economic impacts that the United States has experienced from
the COVID-19 pandemic.
DHS realizes the effects of COVID-19, and USCIS, specifically, is
still dealing with the effects of COVID-19 on its workforce and
processing backlog. COVID-19 affected the demand for immigration
benefits and USCIS services, and, as all employers did, USCIS was
required to adjust its workplaces to mitigate the impacts of the
disease. DHS has procedures in place to deal with emergency situations
as they arise but is no longer providing special accommodations
associated with the pandemic.\15\ USCIS considered the effects of
COVID-19 on its workload volumes, revenue, or costs, along with all
available data, when it conducted its fee review. DHS will also
consider these effects in future fee rules. However, no changes were
made in the fees and regulations codified in this final rule to address
the effects of COVID-19. Further, Census data indicates that impacts of
COVID-19 showed a dip in estimated sales, revenue, and value of
shipments in 2020 followed by a recovery through the fourth quarter of
2021.\16\ CDC ended the public health emergency due to the COVID-19
pandemic on May 11, 2023.\17\ Although there may be some lingering
economic impacts from COVID-19, DHS does not believe these would have
an impact on the number of filings by requestors. DHS notes that for
certain forms and categories fee waivers may be available for people
with financial hardship. See 8 CFR 106.3(a); Table 4B.
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\15\ See USCIS, Immigration Relief in Emergencies or Unforeseen
Circumstances available at https://www.uscis.gov/newsroom/immigration-relief-in-emergencies-or-unforeseen-circumstances (last
reviewed/updated Aug. 16, 2023); USCIS, USCIS Announces End of
COVID-Related Flexibilities available at https://www.uscis.gov/newsroom/alerts/uscis-announces-end-of-covid-related-flexibilities
(last reviewed/updated Mar. 23, 2023).
\16\ See https://www.regulations.gov/comment/USCIS-2021-0010-0706 and https://www.regulations.gov/comment/USCIS-2021-0010-4141.
\17\ See CDC, COVID-19 End of Public Health Emergency, available
at https://www.cdc.gov/coronavirus/2019-ncov/your-health/end-of-phe.html (last updated May 5, 2023).
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II. Background
A. History
On January 4, 2023, DHS published a proposed rule in the Federal
Register (docket USCIS-2021-0010) at 88 FR 402. DHS published a
correction on January 9, 2023, at 88 FR 1172.\18\ On February 24, 2023,
DHS extended the comment period an additional 5 days, to March 13,
2023, for a total comment period of 68 days. See 88 FR 11825. USCIS
also held a public engagement event on January 11, 2023, and a software
demonstration on March 1, 2023, to provide additional avenues for the
interested public to hear about and provide feedback on the proposed
fee rule.\19\ In this final rule, DHS will refer to the initial
proposed rule, correction, and extension collectively as the proposed
rule.
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\18\ The document corrected two typographical errors in Table 1
of the proposed rule.
\19\ https://www.regulations.gov/comment/USCIS-2021-0010-0706
and https://www.regulations.gov/comment/USCIS-2021-0010-4141.
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B. Authority and Guidance
DHS publishes this final rule under the Immigration and Nationality
Act (``INA''), which establishes the Immigration Examinations Fee
Account (``IEFA'') for the receipt of fees it charges. INA section
286(m), 8 U.S.C. 1356(m). The INA allows DHS to set ``fees for
providing adjudication and naturalization services . . . at a level
that will ensure recovery of the full costs of providing all such
services, including the costs of similar services provided without
charge to asylum applicants or other immigrants.'' Id. The INA further
provides that ``[s]uch fees may also be set at a level that will
recover any additional costs associated with the administration of the
fees collected.'' Id. DHS also issues this final rule consistent with
the Chief Financial Officer Act, 31 U.S.C. 901-03903 (requiring each
agency's Chief Financial Officer (CFO) to review, on a biennial basis,
the fees imposed by the agency for services it provides, and to
recommend changes to the agency's fees).
This final rule is also consistent with non-statutory guidance on
fees, the budget process, and Federal accounting principles.\20\ DHS
uses Office of
[[Page 6206]]
Management and Budget (OMB) Circular A-25 as general policy guidance
for determining user fees for immigration benefit requests, with
exceptions as outlined in this section. DHS also follows the annual
guidance in OMB Circular A-11 if it requests appropriations to offset a
portion of Immigration Examinations Fee Account (IEFA) costs.\21\
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\20\ See 58 FR 38142 (July 15, 1993) (revising Federal policy
guidance regarding fees assessed by Federal agencies for Government
services); Federal Accounting Standards Advisory Board Handbook,
Version 17 (06/18), ``Statement of Federal Financial Accounting
Standards 4: Managerial Cost Accounting Standards and Concepts,''
SFFAS 4, available at http://files.fasab.gov/pdffiles/handbook_sffas_4.pdf (generally describing cost accounting concepts
and standards, and defining ``full cost'' to mean the sum of direct
and indirect costs that contribute to the output, including the
costs of supporting services provided by other segments and
entities.); id. at 49-66 (July 31, 1995); OMB Circular A-11,
``Preparation, Submission, and Execution of the Budget,'' section
20.7(d), (g) (June 29, 2018), available at https://www.whitehouse.gov/wp-content/uploads/2018/06/a11.pdf (June 29,
2018) (providing guidance on the FY 2020 budget and instructions on
budget execution, offsetting collections, and user fees).
\21\ OMB Circulars A-25 and A-11 provide nonbinding internal
executive branch direction for the development of fee schedules
under IOAA and appropriations requests, respectively. See 5 CFR
1310.1. Although DHS is not required to strictly adhere to these OMB
circulars in setting USCIS fees, DHS understands they reflect best
practices and used the activity-based costing (ABC) methodology
supported in Circulars A-25 and A-11 to develop the proposed fee
schedule.
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Finally, this final rule accounts for, and is consistent with,
congressional appropriations for specific USCIS programs. In the
proposed rule, DHS outlined the effects of appropriations for FY 2021
and FY 2022.\22\ As explained in the proposed rule, Congress provided
USCIS additional appropriations for very specific purposes in FY
2022.\23\ Shortly before publication of the proposed rule, Congress
passed a full year appropriation bill for FY 2023. Together, the total
FY 2023 appropriations for USCIS were approximately $268.0 million.
Congress appropriated USCIS approximately $243.0 million for E-Verify
and refugee processing in FY 2023.\24\ Approximately $133.4 million of
the $243.0 million was for refugee processing, and the remainder was
for E-Verify. In addition, Congress appropriated $25 million for the
Citizenship and Integration Grant Program, which is available until
September 30, 2024, the end of FY 2024. Id. This means that USCIS
received $5 million more than in FY 2022, and it has 2 years to spend
the full $25 million. Because USCIS anticipated appropriated funds for
citizenship grants in both FY 2022 and FY 2023, the $20 million in FY
2022 and the $25 million in FY 2023 for citizenship grants are not part
of the FY 2022/2023 IEFA fee review budget. For several years, USCIS
had the authority to spend no more than $10 million for citizenship
grants.\25\ Until recently, grant program funding came from the IEFA
fee revenue or a mix of appropriations and fee revenue.\26\ If USCIS
does not receive appropriations for citizenship grants for FY 2024,
then it could use any remaining amount from the $25 million
appropriation in the Consolidated Appropriations Act, 2023.
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\22\ See 88 FR 402, 415-417 (Jan. 4, 2023); see also
Consolidated Appropriations Act, 2021 (Dec. 27, 2020), Public Law
116-260, at div. F, tit. IV; Consolidated Appropriations Act, 2022,
Public Law 117-103 (Mar. 15, 2022) (``Pub. L. 117-103'') at div. F.
tit. 4; Extending Government Funding and Delivering Emergency
Assistance Act, 2022, Public Law 117-43 (Sept. 30, 2021) (``Pub. L.
117-43'') at div. C. title V, sec. 2501.
\23\ See 88 FR 402, 415-416 (Jan. 4, 2023); see also Public Law
117-103.
\24\ See Consolidated Appropriations Act, 2023, Public Law 117-
328, div. F, tit. IV (Dec. 29, 2022).
\25\ Congress provided $10 million for citizenship and
integration grants in FY 2019 (Pub. L. 116-6), FY 2020 (Pub. L. 116-
93), and FY 2021 (Pub. L. 116-260).
\26\ USCIS received $2.5 million for the immigrant integration
grants program in FY 2013 (Pub. L. 113-6) and FY 2014 (Pub. L. 113-
76). USCIS did not receive appropriations for the immigrant
integration grants program in FY 2015, FY 2016, FY 2017, and FY
2018.
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In these cases, appropriation laws for FY 2022 and FY 2023 provide
that the funds are only to be used for the specified purposes, and DHS
is not required to reduce any current IEFA fee.\27\ As explained in the
proposed rule, these appropriations do not overlap with the fee review
budget, which will fund immigration adjudication and naturalization
services for future incoming receipts. USCIS cannot and does not
presume congressional appropriations, especially given the lack of
appropriations in the past. If this fee rule does not account for the
possibility of no congressional funding in future years and Congress
fails to fund a program, either the program cannot continue or USCIS
will be forced to reallocate resources assigned to another part of the
agency for this purpose. As such, DHS makes no changes to the final
rule based on the appropriations for FY 2022 and FY 2023.
---------------------------------------------------------------------------
\27\ Public Law 117-43, at section 132, states, ``That such
amounts shall be in addition to any other funds made available for
such purposes, and shall not be construed to require any reduction
of any fee described in section 286(m) of the Immigration and
Nationality Act (8 U.S.C. 1356(m)).'' Likewise, Public Law 117-43,
at section 2501, states ``That such amounts shall be in addition to
any other amounts made available for such purposes and shall not be
construed to require any reduction of any fee described in section
286(m) of the Immigration and Nationality Act (8 U.S.C. 1356(m)).''
Similar wording is in Public Law 117-328 in div F. tit. IV. USCIS
has a long history of funding citizenship and integration grants
from IEFA revenue, appropriations, or a mix of both.
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C. Changes From the Proposed Rule
This final rule adopts, with appropriate changes, the regulatory
text in the proposed rule published in the Federal Register on January
4, 2023. See U.S. Citizenship and Immigration Services Fee Schedule and
Changes to Certain Other Immigration Benefit Request Requirements;
Proposed rule, 88 FR 402. DHS is making several changes in this final
rule based on comments received on the proposed rule or as required by
the effects of those changes. As explained throughout this preamble,
DHS exercises its discretionary authority to establish fees, provide
fee exemptions, allow fee waivers, provide lower fees, or shift the
costs of benefits and services based on numerous factors, including
adequately funding USCIS operations, balancing beneficiary-pays and
ability-to-pay principles, burdening requestors and USCIS, considering
humanitarian concerns, and other policy objectives as supported by
data. This final rule also relies on the justifications articulated in
the proposed rule, except as modified and explained throughout this
rule in response to public comments, intervening developments, and new
information. As stated in the proposed rule, DHS is not repeating the
amendatory instructions and regulatory text for ministerial,
procedural, or otherwise non-substantive changes adopted from the 2020
fee rule. 88 FR 421. A description of each change is as follows:
1. Reduced Costs and Fees
DHS has revised the USCIS budget underlying the final rule. In the
proposed rule, USCIS projected that its IEFA non-premium cost
projections must increase by 36.4 percent from $3,776.3 million in FY
2021 to an average of $5,150.7 million in FY 2022/2023 to fulfill
USCIS' operational requirements. See 88 FR 402, 428 (Jan. 4, 2023). In
this final rule, USCIS revises the FY 2022/2023 cost projection to
approximately $4,424.0 million, a $726.7 million or 14.1 percent
decrease compared to the proposed rule. See Table 2 of this preamble.
[[Page 6207]]
[GRAPHIC] [TIFF OMITTED] TR31JA24.007
DHS is authorized by INA section 286(m), 8 U.S.C. 1356(m), to set
USCIS fees at a level to recover ``the full costs'' of providing
``all'' ``adjudication and naturalization services,'' and ``the
administration of the fees collected.'' This necessarily includes
support costs, and USCIS' current budget forecasts a deficit based on
fully funding all of its operations. DHS must make up that difference
either by cutting costs, curtailing operations, or increasing revenue.
DHS examined USCIS recent budget history, service levels, and
immigration trends to forecast its costs, revenue, and operational
metrics in order to determine whether USCIS fees would generate
sufficient revenue to fund anticipated operating costs. This increase
in funding ensures that USCIS can meet its operational needs during the
biennial period.
[GRAPHIC] [TIFF OMITTED] TR31JA24.008
Reducing the budget allows DHS to finalize some fees that are lower
than in the proposed rule and offer additional fee exemptions in
response to public comments requesting lower fees. In this final rule,
DHS removes approximately $726.7 million of average annual estimated
costs by making the following changes:
Transferring costs to Premium Processing revenue;
Reducing the estimated marginal costs of the Procedures
for Credible Fear Screening and Consideration of Asylum, Withholding of
Removal, and CAT Protection Claims by Asylum Officers Interim Final
Rule to be funded; \28\ and
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\28\ 87 FR 18078 (Mar. 29, 2022).
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Including efficiency estimates based on improved
efficiency measures.
DHS revises the estimated cost and revenue differential to $1,141.5
million in this final rule. See Table 3 of this preamble. DHS issues
this final rule to adjust USCIS' fee schedule to recover the full cost
of providing immigration adjudication and naturalization services.
a. Transferring Costs to Premium Processing Revenue
DHS has historically excluded premium processing revenue and costs
from its IEFA fee reviews and rulemakings to ensure that premium
processing funds are available for infrastructure investments largely
related to information technology, to provide staff for backlog
reduction, and to ensure that non-premium fees were set at a level
sufficient to cover the base operating costs of USCIS. This was done
because 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 premium service, as well as the cost of
infrastructure improvements in adjudications and customer service
processes. See 87 FR 1832. In the proposed rule at 88 FR 420, USCIS
outlined its planned uses of premium processing revenue to provide
premium processing service, improve information technology
infrastructure, and reduce backlogs. Therefore, revenue from premium
processing, the costs for USCIS to provide premium processing service,
the costs to improve information technology infrastructure, and the
costs directed at reducing the backlog were not considered in the
proposed fees.
On October 1, 2020, the Continuing Appropriations Act, which
included the USCIS Stabilization Act, was signed into law, codifying
new section 286(u)(3)(A) of the INA, 8 U.S.C. 1356(u)(3)(A). Among
other things, the USCIS Stabilization Act established new premium
processing fees and expanded the permissible uses of revenue from the
collection of premium processing fees, including improvements to
adjudication process infrastructure, responses to adjudication demands,
and to otherwise offset the cost of providing adjudication and
naturalization services. Then, on March 30, 2022, DHS published a final
rule, Implementation of the Emergency Stopgap USCIS Stabilization Act,
[[Page 6208]]
implementing part of the authority provided under the USCIS
Stabilization Act to offer premium processing for those benefit
requests made eligible for premium processing by section 4102(b) of
that law. See 87 FR 18227 (premium processing rule).
On December 28, 2023, DHS published a final rule, Adjustment to
Premium Processing Fees, effective February 26, 2024, that increased
premium processing fees charged by USCIS to reflect the amount of
inflation from June 2021 through June 2023 according to the Consumer
Price Index for All Urban Consumers (CPI-U). 88 FR 89539 (Dec. 28,
2023). The adjustment increases premium processing fees from $1,500 to
$1,685, from $1,750 to $1,965, and from $2,500 to $2,805. 8 CFR 106.4.
The proposed rule did not include changes directly resulting from
the USCIS Stabilization Act or premium processing rule, as DHS was
still in the early stages of implementation. It stated that DHS would
consider including premium processing revenue and costs in the final
rule., as appropriate, as DHS would have more information about the
revenue collected from premium processing services by the time DHS
publishes a final rule. See 88 FR 402, 419 (Jan. 4, 2023). As a result
of additional information gathered over the passage of time since the
proposed rule and the December 28, 2023 Adjustment to Premium
Processing Fees final rule, 88 FR 89539, in this final rule, DHS has
transferred $129.8 million in costs to premium processing to account
for future premium processing revenue projections.
b. Reducing the Work To Be Funded by the Asylum Program Fee.
DHS proposed a new Asylum Program Fee of $600 to be paid by
employers who file either a Form I-129, Petition for a Nonimmigrant
Worker, or Form I-140, Immigrant Petition for Alien Worker. 88 FR 451.
DHS has begun implementation of the Procedures for Credible Fear
Screening and Consideration of Asylum, Withholding of Removal, and CAT
Protection Claims by Asylum Officers (Asylum Processing IFR) (87 FR
18078 Mar. 29, 2022) rulemaking, but full implementation of the IFR is
delayed while DHS resolves litigation around the Circumvention of
Lawful Pathways rule. See 88 FR 31314 (May 16, 2023). Therefore, DHS
needs to generate less revenue from the Asylum Program Fee than we
estimated was needed in the proposed rule. Accordingly, we have
provided a lower fee in this final rule for certain small employers and
nonprofits in response to comments requesting lower fees for these
groups. Businesses with 25 or fewer full-time equivalent employees will
pay a $300 Asylum Program Fee instead of $600, and half of the full fee
for Form I-129. Nonprofits will pay $0. How DHS determined which
businesses would receive such relief from the full fee is discussed
later in this section. DHS estimates the revised Asylum Program Fee
will generate approximately $313 million in revenue, compared to the
$425 million that was estimated in the proposed rule from charging $600
with no exemptions or discounts.
DHS recognizes that reducing the USCIS budget due to the lower
projected revenue from the Asylum Program Fee risks a revenue shortfall
if the Asylum Processing IFR is fully implemented and the associated
costs incurred. However, DHS's Asylum Processing IFR workload is
somewhat flexible because DOJ can share some--though not all--of the
workload. On the other hand, if the Asylum Processing IFR is not fully
implemented, USCIS still has a significant need for the revenue.
Although the amount of the fee was based on the costs of the Asylum
Processing IFR, it was proposed ``. . . to fund part of the costs of
administering the entire asylum program . . .'' 88 FR 849. USCIS Asylum
Division expense estimates are over $400 million a year before adding
the costs of the Asylum Processing IFR, and USCIS is regularly adding
new asylum offices and capabilities. Thus, DHS projects that the total
costs of the asylum program will exceed the revenue from the new fee
even before any new capacity is added to implement the Asylum
Processing IFR.
Further, DHS notes that USCIS cannot direct the revenue from the
Asylum Program Fee precisely to the marginal costs that result from the
implementation of the Asylum Processing IFR, as the Asylum Program Fee,
like other fees, will be deposited into the general IEFA and not an
account specific to the IFR or to the asylum program. In addition, if
Asylum Division expenses are greatly reduced or funded by a
Congressional appropriation, and USCIS determines the Asylum Program
Fee is not needed, USCIS can pause collection of the Asylum Program Fee
using the authority in 8 CFR 106.3(c). The costs for administering the
asylum program not funded by the revenue collected from the Asylum
Program Fee will continue to be funded by other fees.
c. Including Processing Efficiency Estimates Based on Improved
Efficiency Measures
USCIS is making progress reducing backlogs and processing times.
For example, USCIS committed to new cycle time goals in March 2022.\29\
These goals are internal metrics that guide the backlog reduction
efforts of the USCIS workforce and affect how long it takes the agency
to process cases. As cycle times improve, processing times will follow,
and requestors will receive decisions on their cases more quickly.
USCIS has continued to increase capacity, improve technology, and
expand staffing to achieve these goals.
---------------------------------------------------------------------------
\29\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland
Security, ``USCIS Announces New Actions to Reduce Backlogs, Expand
Premium Processing, and Provide Relief to Work Permit Holders''
(Mar. 29, 2022), https://www.uscis.gov/newsroom/news-releases/uscis-announces-new-actions-to-reduce-backlogs-expand-premium-processing-and-provide-relief-to-work.
---------------------------------------------------------------------------
2. Changes in the Asylum Program Fee
DHS proposed a new Asylum Program Fee of $600 to be paid by
employers who file either a Form I-129, Petition for a Nonimmigrant
Worker, Form I-129CW, Petition for a CNMI-Only Nonimmigrant
Transitional Worker, or Form I-140, Immigrant Petition for Alien
Worker. See 88 FR 402, 451 (Jan. 4, 2023). As explained in the proposed
rule, DHS determined that the Asylum Program Fee is an effective way to
shift some costs to requests that are generally submitted by
petitioners who have more ability to pay, as opposed to shifting those
costs to all other fee payers. See 88 FR 402, 451-454 (Jan. 4, 2023).
DHS arrived at the amount of the Asylum Program Fee by calculating the
amount that would need to be added to the fees for Form I-129, Petition
for a Nonimmigrant Worker, Form I-129CW, Petition for a CNMI-Only
Nonimmigrant Transitional Worker, and Form I-140, Immigrant Petition
for Alien Worker, to collect the Asylum Processing IFR estimated annual
costs. Id. The Asylum Program Fee adds a fee, only for Form I-129, I-
129CW, and Form I-140 petitioners, in order to maintain lower fees for
other immigration benefit requestors than if these asylum costs were
spread among all other fee payers. The proposed rule provided examples
of alternative Form I-485, Application to Register Permanent Residence
or Adjust Status, and I-765, Application for Employment Authorization,
proposed fees if those applications were burdened with the Asylum
Processing IFR estimated annual costs. Id at 452. The proposed fees for
Forms I-485, I-765, and others were lower with the shift of asylum
program costs to employers through the new fee. If Forms I-129, I-
129CW, and I-140 recover more of those
[[Page 6209]]
costs, then that means other forms need not recover as much, resulting
in lower proposed fees for Forms I-485, I-765, and others that
recovered more than full cost in the proposed rule. DHS stands by this
approach to lower fees for other immigration benefit requestors less
able to pay by limiting the Asylum Program Fee to Forms I-129, I-129CW,
and I-140.
DHS summarizes and responds to the comments on the Asylum Program
Fee in more detail in section IV.G.2.a. of this preamble. After
considering public comments, in the final rule, DHS exercises its
discretionary authority to establish fees, balancing the beneficiary-
pays and ability-to-pay principles, and to address the negative effects
that commenters stated would result, by exempting the Asylum Program
Fee for nonprofit petitioners and reducing it by half for small
employers. See 8 CFR 106.2(c)(13).\30\ The fee will be $0 for
nonprofits; $300 for small employers (defined as firms or individuals
having 25 or fewer FTE employees); and $600 for all other filers of
Forms I-129, I-129CW, and I-140. See 8 CFR 106.1(f) and 106.2(c)(13).
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\30\ DHS recognizes that many small employers and nonprofits
submit USCIS Form I-907, Request for Premium Processing, with their
Form I-129. Because premium processing is an optional request for
faster processing and not required to obtain an immigration benefit,
DHS makes no changes to premium processing fees for those groups.
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3. Defining Small Employer
DHS did not propose to provide any fee exemptions or discounts
based on employer size. Many commenters, however, wrote that the
proposed new fees for employment-based immigration benefit requests
could make it difficult for small companies to pay the fees or it may
hinder their ability to hire the workers they need. Balancing the need
to shift the costs of services, adequately fund USCIS operations, and
balance the beneficiary-pays and ability-to-pay principles, DHS
determined that a discount based on the size of the business is
consistent with the ability-to-pay principle that was articulated in
the proposed rule. See 88 FR 402,424-26 (Jan. 4, 2023).
The final rule defines ``small employer'' as having 25 or fewer
full-time equivalent (FTE). See 8 CFR 106.1(f). When determining which
employers should be considered small, DHS considered what definition
could be administered to provide the relief requested by commenters
without adding costs to USCIS, additional burden to petitioners, or
causing delays in intake and processing of the submitted requests. The
volume of forms submitted to USCIS requires that benefit request intake
be automated to the extent possible, including the analysis of whether
the correct fee has been paid based on if the petitioner meets the
criteria for the fee they have submitted with their request. DHS also
considered other exemptions provided for the same or similar forms and
how the term ``small employer'' is defined in other contexts. DHS
reviewed INA section 214(c)(9)(B), 8 U.S.C. 1184(c)(9)(B), which
provides that the ACWIA fee is reduced by half for any employer with
not more than 25 FTE employees who are employed in the United States
(determined by including any affiliate or subsidiary of such employer).
Because the ACWIA fee and the Asylum Program fee are both applied to
the Form I-129, DHS decided that using a consistent definition was
preferable. DHS also determined that defining small employer as 25 or
fewer full time equivalent employees was appropriate because: (1) it is
consistent with what Congress has provided in statute that it considers
small with regard to the applicability of certain fees for employment-
based petitions submitted to USCIS; (2) DHS has a long history of
administering the ACWIA fee, and (3) determining if the petitioner is
eligible for the fee discount requires minimal additional evidence.\31\
This definition will be applied to the fee discount and exemption for
the Asylum Program Fee and the discount for the Form I-129 fee
(discussed later in this section).
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\31\ As noted in the Paperwork Burden Act section of this final
rule, and in the final form instructions for Forms I-129 and 140
provided in the docket, DHS will require that petitioners submit the
first page of their most recent IRS Form 941, Employer's QUARTERLY
Federal Tax Return. We will determine at intake if the petitioner
has submitted the lower fee or no fee based on the number indicated
in Part 1, question 1, Number of employees who received wages, tips,
or other compensation for the pay period.
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4. Defining Nonprofit
DHS did not propose any relief from any fee in the proposed rule
for nonprofit entities. Many commenters, however, wrote that the
proposed new fees for nonprofits could make it difficult for the
nonprofits to pay the fees or it may hinder their ability to hire the
workers they need. DHS agrees that the type of organizations that
qualify as a nonprofit generally provide a service to the public.\32\
Nonprofit organizations may include religious, educational, or
charitable organizations and may not be required to pay federal
taxes.\33\ DHS understands that organizations that do not pursue
monetary gain or profit must use funds for USCIS fees that they would
otherwise use in pursuit of public and private service. Therefore,
balancing the need to shift the costs of services, adequately funding
USCIS operations, and the beneficiary-pays and ability-to-pay
principles, DHS determined that a discount for nonprofits is consistent
with the ability-to-pay principle that was articulated in the proposed
rule. See 88 FR 402,424-26 (Jan. 4, 2023). DHS acknowledges that
allowing this discount for certain large non-profits, such as
universities and hospitals, may seem inconsistent with the ability-to-
pay principle. However, DHS notes that this treatment is consistent
with their tax-exempt status and believes that the public service
performed by these entities further justifies the fee discount.
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\32\ See U.S. Department of the Treasury, U.S. Internal Revenue
Service, Exempt Organization Types, https://www.irs.gov/charities-non-profits/exempt-organization-types (Page Last Reviewed or
Updated: 05-Dec-2023).
\33\ Nonprofits may be required to pay certain other taxes. See,
U.S. Department of the Treasury, U.S. Internal Revenue Service,
Federal Tax Obligations of Non-Profit Corporations at https://www.irs.gov/charities-non-profits/federal-tax-obligations-of-non-profit-corporations. (Page Last Reviewed or Updated: 05-Dec-2023).
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DHS determined that the most appropriate definition for nonprofit
is the definition in the Internal Revenue Code (IRC), specifically 26
U.S.C. 501(c)(3) (2023). 8 CFR 106.1(f)(2). As with the definition of
small employer, DHS considered costs to USCIS, burden on petitioners,
and intake and processing requirements. DHS also considered how the
term nonprofit is defined in other contexts. Commenters that requested
relief for nonprofits did not suggest an alternative definition for
nonprofit than that used for Federal income tax purposes or as provided
for the ACWIA fee reduction in 8 CFR 214.2(h)(19)(iv). The INA provides
for a reduced ACWIA fee if a petitioner is ``a primary or secondary
education institution, an institution of higher education, as defined
in section 1001(a) of title 20, a nonprofit entity related to or
affiliated with any such institution, a nonprofit entity which engages
in established curriculum-related clinical training of students
registered at any such institution, a nonprofit research organization,
or a governmental research organization.'' INA section 214(c)(9)(A), 8
U.S.C. 1184(c)(9)(A). The INA does not define ``nonprofit'' in terms of
the IRC and the definitions of ``institution of higher education'' and
``government research organization'' in 8 CFR 214.2(h)(19)(iv)(B) are
not tied to the IRC.
For ease of administration, DHS will not require that the
petitioner nonprofit
[[Page 6210]]
status be limited to research or educational purposes, as in 8 CFR
214.2(h)(19)(iv)(B). DHS has decided that eligibility for fee
reductions and fee exemptions for nonprofits provided in this final
rule will be limited to nonprofit organizations approved by the
Internal Revenue Service as a nonprofit entity under section 501(c)(3)
of the IRC or as a government research organization, and that USCIS
will not impose the burden on petitioners of demonstrating an
educational or research purpose. This approach will ensure that the
primary types of organizations eligible for the ACWIA fee reduction in
the INA--educational institutions, nonprofit research organizations,
and governmental research organizations--will also be eligible for the
fee reductions and exemptions under this rule, as will other nonprofit
entities with a charitable purpose under section 501(c)(3).
DHS considered including but will not include entities organized
under 501(c)(4) and 501(c)(6) of the IRC in the definition of nonprofit
in this rule. Tax-exempt organizations under section 501(c)(4) include
social welfare organizations and local associations of employees, while
tax-exempt organizations under 501(c)(6) include business leagues,
chambers of commerce, real estate boards, boards of trade, and
professional football leagues. See 26 U.S.C. 501(c)(4) & (6). Both
types of entities, unlike public charities under 501(c)(3), may engage
in lobbying activities. Although 8 CFR 214.2(h)(19)(iv)(A) includes
nonprofit or tax-exempt organizations under 501(c)(3), 501(c)(4), and
501(c)(6) for purposes of the ACWIA fee reduction, this eligibility is
further cabined by 8 CFR 214.2(h)(19)(iv)(B), requiring that such
entities have been ``approved as a tax-exempt organization for research
or educational purposes by the Internal Revenue Service'' (emphasis
added). As a practical matter, DHS experience indicates that few
501(c)(4) or 501(c)(6) entities are likely to be organized for research
or educational purposes and meet the definition of ``affiliated or
related nonprofit entity'' under 8 CFR 214.2(h)(19)(iii), which
requires a close tie to an institution of higher education. Therefore,
DHS has determined that in defining eligibility for nonprofit fee
reductions and exemptions under this rule, it is appropriate to include
501(c)(3) entities while excluding 501(c)(4) and 501(c)(6) entities.
This definition will be applied to the fee discount and exemption for
the Asylum Program Fee and the discount for the Form I-129 fee
(discussed later in this section).
5. Changes to EB-5 Volume Forecasts
DHS has updated the USCIS volume forecasts for the EB-5 workload
based on more recent and reliable information than what was available
while drafting the proposed rule. Increasing the fee-paying receipt
forecasts for these workloads conversely increased the estimated
revenue generated by EB-5 fees. DHS also revised the USCIS budget to
reflect these changes.
For the proposed rule, DHS estimated the EB-5 workload based on
statistical modeling, immigration receipt data, and internal
assessments, like other workload forecasts. 88 FR 402, 432-438. The
proposed rule discussed that EB-5 receipts decreased from FY 2016 to FY
2020. 88 FR 402, 509-510. At the time of the proposed rule, DHS had
very limited information upon which to base estimates of the new
workload required by the EB-5 Reform and Integrity Act of 2022. See id.
at 557. In this final rule, DHS updated the EB-5 workload estimates to
account for the effect of the EB-5 Reform and Integrity Act of 2022.
USCIS believes these estimates better represent the EB-5 filing
receipts it can expect. Increasing the volume forecasts for EB-5 also
increases the amount of revenue generated by the EB-5 workload for the
final rule budget. As explained elsewhere, DHS has revised the USCIS
budget to accommodate the revenue generated by the fees and volumes in
this final rule. Increasing the fee-paying receipt forecasts for these
workloads increases the estimated revenue generated by the EB-5 fees in
the final rule. 88 FR 72870.
[[Page 6211]]
[GRAPHIC] [TIFF OMITTED] TR31JA24.009
6. Changes to H-1B Registration Fee Volume Forecasts
DHS also revises the USCIS volume forecasts for H-1B registration
workload, to 424,400, based on more recent information than was
available while drafting the proposed rule, such as the total
registrations for the FY 2023 cap year. The proposed rule forecasted
273,990 H-1B registrations. 88 FR 402, 437 (Jan. 4, 2023). The forecast
for the proposed rule is close to the 274,237 total registrations in
the FY 2021 cap year.\34\ However, after the proposed rule was
published, a total of 780,884 petitioners registered for an FY 2024
cap-subject H-1B employee. This final rule forecast of 424,400, based
on more recent data, is closer to the total registrations for the FY
2023 cap year. Increasing the fee-paying receipt forecasts for these
workloads increases the estimated revenue generated by the H-1B
registration fees in the final rule. 88 FR 72870.
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\34\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland
Security, H-1B Electronic Registration Process, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process.
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7. Online Filing Fees
The proposed rule provided lower fees for some online requests
based on estimated costs for online and paper filing. 88 FR 402, 489-
491. The fee differences between paper and online filing ranged from
$10 to $110. Id. This final rule provides a $50 discount for forms
filed online with USCIS. 8 CFR 106.1(g). The discount is not applied in
limited circumstances, such as when the form fee is already provided at
a substantial discount or USCIS is prohibited by law from charging a
full cost recovery level fee. See, e.g., 8 CFR 106.2(a)(50)(iv).
As described in the proposed rule and supporting documentation, the
cost savings USCIS experiences from online filing differs from form to
form depending on many factors. Many commenters wrote that USIS was
penalizing those who still filed on paper by making paper filing more
expensive. The commenters misunderstand the policy goal of the online
discount because DHS is not increasing the fee for paper filings by
shifting costs for online filing to the fee for paper requests as a
form of penalty or deterrent. If the online discount was not provided,
paper form fees would not decrease accordingly. DHS wants to
incentivize online filing, but we proposed fees based on the costs
savings calculated in the ABC model.
In response to comments, DHS reevaluated the difference between
online and paper fees. In the proposed rule, the proposed fee
differences ranged from $0 to $110. In this final rule, DHS again has
determined that online filing provides costs savings to USCIS and
requestors, increases flexibility and efficiency in adjudications, and
those benefits should be reflected in lower fees. However, in the final
rule DHS takes the expected savings from online filing and divides it
among all online filed forms by establishing that the fees for online
filing will be $50 less than for the same request filed on paper.\35\
Furthermore, DHS believes that the $50 reduced cost can be reasonably
anticipated to be consistent for future USCIS online filing
capabilities and has decided to provide that online filing fees will be
$50 less than the paper filing fee as additional forms are made
available for online filing, unless otherwise noted. See 8 CFR
106.1(g). DHS emphasizes it establishes the $50 difference because
[[Page 6212]]
USCIS experiences moderately reduced costs from online filing.
Additionally, applying a uniform $50 reduced cost for online filing to
all forms will make the reduced fee easier for USCIS to administer and
be less confusing to the public when calculating the fee. Although DHS
believes that it should encourage online filing as a matter of sound
policy, contrary to the suggestions of some commenters, DHS is not
increasing the fee for paper filings by shifting costs for online
filing to the fee for paper requests as a form of penalty or deterrent.
For applicants who experience a lack of access to computers or the
internet, paper filing will generally remain an option.\36\
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\35\ DHS applies this discount to USCIS online filings only and
does not apply this provision to fees set in this rule for
immigration benefit requests that are submitted to either USCIS or
CBP when the request is submitted to and fee collected by CBP
online. See, e.g., 8 CFR 106.2(a)(13)--(15).
\36\ USCIS Form I-134A, Online Request to be a Supporter and
Declaration of Financial Support, must be filed online, but no fee
is required. See, https://www.uscis.gov/i-134a, last Reviewed/
Updated: 08/11/2023.
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8. Adjust Fees for Forms Filed by Individuals by Inflation
The proposed rule included a wide range of proposed fees.
Consistent with past fee rules, DHS used its discretion to limit some
proposed fee increases that would be overly burdensome on applicants,
petitioners, and requestors if set at ABC model output levels. 88 FR
402, 450-451. The proposed rule also included a provision to adjust
fees by inflation in the future. 88 FR 402, 516.
DHS received many comments about the method that USCIS used to
calculate how its costs should be dispersed among the requests for
which fees are charged. Some commenters wrote that DHS should limit the
increase in USCIS fees by the amount of inflation. DHS analyzed the
suggestion and determined that from December 2016 (the month FY 2016/
2017 fee rule went into effect) to June 2023,\37\ the CPI-U increased
by 26.37 percent.\38\ Using the CPI-U as the measure for cost and fee
increases is consistent with statutes that authorize DHS to adjust
USCIS fees. See, e.g. section 286(u)(3)(C) of the INA, 8 U.S.C.
1356(u)(3)(C) (providing that DHS may adjust the premium fees based on
the change in the CPI-U). DHS then calculated what the fees would be if
adjusted by 26.37 percent, rounded to the nearest $5 increment,
consistent with other fees (and reducing online filing fees by $50 as
explained earlier). After considering the amount of the increase, as
well as the impacts of the applicable fees on individual filers, DHS
determined (1) that the additional revenue that would be generated by
increasing the subject forms by inflation would be appropriate for
expected revenue from those requests in the final rule, (2) increasing
the fees by only inflation as suggested in public comments balanced the
need to recover increased USCIS costs with the impacts of the fees on
individuals and families, and (3) to the extent that an inflation
adjustment did not recover the relative costs of the applicable
requests, either other fees could be increased to make up the
unrecovered costs using the ability to pay principle or USCIS could
reduce its budget. In the final rule, except for certain employment-
based benefit request fees, DHS finalized the fees at either the
proposed fee level or the current fee adjusted for inflation, whichever
was lower. A comparison of current, proposed, and final fees can be
found in Table 1.
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\37\ DHS used June 2023 as the end date for the period of
inflation to be consistent with the 2023 premium processing fee
inflation adjustments. 88 FR 89539. DHS acknowledges that inflation
will likely change from the June 2023 CPI-U before the fees in this
rule take effect. The time and effort required to calculate the fees
for this rule, draft comment responses, prepare supporting
documents, perform the regulatory impact analysis, small entity
impact analysis, and clear the rule through the necessary channels
requires that a reasonable endpoint be selected on which to base the
required calculations and move the final rule forward without
continuous updates.
\38\ DHS calculated this by subtracting the December 2016 CPI-U
(241.432) from the June 2023 CPI-U (305.109), then dividing the
result (63.677) by the December 2016 CPI-U (241.432). Calculation:
(305.109 - 241.432)/241.432 = .2637 x 100 = 26.37 percent.
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Some of the proposed fees set to increase less than inflation are
the fees for Form N-400, Application for Naturalization, certain
adoption-related forms (e.g., Form I-600, Petition to Classify Orphan
as an Immediate Relative and Form I-800, Petition to Classify
Convention Adoptee as an Immediate Relative), and other immigration
benefit requests where DHS limited the proposed fee increase to 18
percent increase (not including biometrics fees), as described in the
proposed rule. See 88 FR 402, 450-451, 486-487 (Jan. 4, 2023).
This final rule additionally holds several fees to the rate of
inflation since the previous fee increase in 2016. For example, DHS
adjusts the paper filing fees for Forms I-130, I-485, I-539, and I-751
by inflation.
DHS notes that an increase of a straight 26.37 percent based solely
on inflation deviates from the ABC model that OMB Circular A-25
recommends, and the method generally used by DHS in past USCIS fee
rules. However, as stated in past fee rules, the proposed rule, and in
responses to comments in this rule, DHS is not strictly bound by A-25;
nor is it limited to setting fees based on the costs of the service
under 31 U.S.C. 9701. For public policy reasons, DHS may use and has
used its discretion to limit fee increases for certain immigration
benefit request fees that would be overly burdensome on applicants,
petitioners, and requestors if set at ABC model output levels. 81 FR
73308 (the 2016 final rule noted that the Application for
Naturalization fee has not changed in nearly a decade and was being set
at less than it would be if the 2007 fee were simply adjusted for
inflation). DHS believes that this combination of limiting certain fee
increases for policy reasons, setting fees using the ABC model, and
adjusting fees by inflation, in addition to being responsive to public
comments, provides a logical, reasonable, and balanced approach. For
the proposed rule, and consistent with past fee rules, DHS used its
discretion to limit some proposed fee increases that would be overly
burdensome on applicants, petitioners, and requestors if set at
activity-based costing (ABC) model output levels. 88 FR 402, 450-451.
DHS is doing the same in the final rule.
9. Fee Exemptions and Fee Waivers
The proposed rule included new fee exemptions and proposed to
codify existing fee exemptions. See 88 FR 402, 459-481 (Jan. 4, 2023).
This final rule expands fee exemptions for humanitarian filings and
adoptions. See Tables 5B, 7; 8 CFR 106.3(b). Many commenters requested
that DHS provide more fee exemptions for humanitarian related benefit
requests. In response to the public comments, DHS reexamined the fees
for victim-based or humanitarian requests and other categories and
decided to provide more related fee exemptions. Normally, expanding fee
waivers or exemptions may increase fees, as explained in the proposed
rule. 88 FR 402, 450-451. However, in this final rule, DHS revised the
USCIS budget to accommodate the revenue generated by the fees and fee-
paying receipts. As such, DHS is implementing these fee exemptions
without increasing fees for other benefit requests.
a. No New Fee Waivers
DHS acknowledges the importance of ensuring that individuals who
cannot afford filing fees have access to fee waivers. DHS has primarily
sought to ease the burden of fee increases by significantly expanding
the number of forms that are now fee exempt. See 8 CFR 106.3(b). DHS
believes it has provided fee waivers for the appropriate forms and
categories by emphasizing humanitarian, victim-based, and citizenship-
related benefits while changing some fee waivers to fee exemptions.
Additional fee waivers
[[Page 6213]]
would require USCIS to increase fees for other forms and requestors to
compensate for fewer requests paying fees. DHS has sought to balance
the need for the fee waivers and the need to ensure sufficient revenue
and does not believe additional fee waivers are appropriate.
b. New Fee Exemptions
Many commenters requested that DHS provide more fee exemptions and
free services for humanitarian-related benefit requests. In response to
the public comments, DHS reexamined the fees for victim-based or
humanitarian requests and other categories and decided to provide fee
exemptions for several additional forms. A summary of the current and
new exemptions is provided below in Table 5A and 5B. The adoption
related fee exemptions are in Table 7. Balancing beneficiary-pays and
ability-to-pay and the funding needs of USCIS, DHS has determined that
these additional fee exemptions are warranted for the following
reasons.
Victims of Severe Form Of Trafficking (T Nonimmigrants)
In the proposed rule, DHS offered a fee exemption for T
nonimmigrant status (``T visa'') applicants, T nonimmigrants, and their
derivatives for Form I-290B, Notice of Appeal or Motion, only if filed
for any benefit request filed before adjusting status or for Form I-
485, Application to Register Permanent Residence or Adjust Status. In
this final rule, DHS expands the exemption for this category of
requestors to include Form I-290B if filed for ancillary forms
associated with Form I-485. DHS also exempts the fee for Form I-824,
Application for Action on an Approved Application or Petition, for this
population in this final rule. As stated in the proposed rule, the T
visa program is historically underused and the annual statutory cap of
5,000 has never been reached. See 88 FR 460. DHS aims to further
encourage participation of eligible victims of trafficking in the T
visa program by expanding fee exemptions as provided in this final
rule. DHS believes that these expanded fee exemptions advance the
humanitarian goals of the T visa program by reducing barriers for this
particularly vulnerable population while meeting the agency's funding
needs because of the relatively low receipts and cost transfer for
these forms.\39\ Also, providing these fee exemptions helps to ensure
parity of access to immigration relief for T visa applicants, T
nonimmigrants, and their derivatives with similarly situated
humanitarian categories of requestors. Finally, these additional
exemptions will help account for the trauma and financial difficulties
that T nonimmigrants may endure long after escaping their traffickers.
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\39\ From FY 2018 through FY 2022, T nonimmigrants filed a five-
year annual average of 311 Forms I-290B and a five-year annual
average of 4 Forms I-824. See RIA, Table 47. Based on these annual
average receipts, the transfer payment from the government to
benefit requestors is calculated to be $171,672 for Form I-290B and
$2,242 for Form I-824. See RIA, Table 48. This represents 0.09% and
0.001%, respectively, of the grand total transfer payments. See RIA,
Table 48.
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Victims of Qualifying Criminal Activity (U Nonimmigrants)
DHS provided fee exemptions in the proposed rule for U nonimmigrant
status (``U visa'') petitioners and U nonimmigrants filing Form I-192,
Form I-193, Form I-290B, and Form I-539 in limited circumstances. DHS
expands these fee exemptions in this final rule such that Form I-192,
Form I-193, and Form I-539 are fee exempt when filed by a U visa
petitioner or U nonimmigrant at any time, and Form I-290B is also fee
exempt if filed for ancillary forms associated with Form I-485. DHS
also expands the fee exemption for Form I-765 to include initial,
renewal, and replacement requests. Furthermore, DHS provides additional
fee exemptions for Form I-131, Form I-485, Form I-601, Form I-824 and
Form I-929 for this population. Providing these fee exemptions helps to
ensure parity of access to immigration relief for U nonimmigrants with
similarly situated humanitarian categories of requestors. These
additional fee exemptions are provided in this final rule for the
reasons stated in Section IV.F of this preamble where DHS responds to
the public comments provided on the fees proposed for U nonimmigrants.
VAWA Form I-360 Self-Petitioners and Derivatives
DHS offered fee exemptions in the proposed rule for VAWA self-
petitioners and derivatives filing Forms I-131, I-212 and I-601
depending on whether Forms I-360 and I-485 are filed concurrently or
currently pending adjudication. Additionally, exemptions were proposed
for Forms I-290B and I-485 when the Form I-485 is filed concurrently
with the Form I-360, and for initial filers of I-765 for VAWA self-
petitioners and derivatives. For the reasons stated in Section IV.F of
this preamble in response to the public comments provided on VAWA self-
petitioners, this final rule expands fee exemptions to include when
Form I-360 and Form I-485 are filed separately and for some ancillary
forms, when the I-485 is not pending. DHS also expands the fee
exemption for Form I-290B filed by VAWA self-petitioners to include any
benefit request filed before adjusting status or for Form I-485 and
associated ancillary forms. Additionally, this final rule provides VAWA
self-petitioners fee exemptions for Form I-601A, Form I-824, and Form
I-765 renewal and replacement requests. Providing these fee exemptions
helps to improve parity of access to immigration relief for VAWA self-
petitioners with similarly situated humanitarian categories of
requestors. On balance, the reduction of barriers to immigration relief
for VAWA self-petitioners when compared with the relatively low
transfer payment from the government to other benefit requestors
supports DHS's decision to provide these fee exemptions.\40\
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\40\ From FY 2018 through FY 2022, VAWA self-petitioners filed
an annual average of 1,273 Forms I-290B and an annual average of 314
Forms I-824. See RIA, Table 47. Based on these annual average
receipts, the transfer payment from the government to benefit
requestors is calculated to be $1,550,128 for Form I-290B and
$36,769 for Form I-824. See RIA, Table 48. This represents 0.09% and
0.001%, respectively, of the grand total transfer payments. See RIA,
Table 48.
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Conditional Permanent Residents filing an application for a waiver
of the joint filing requirement based on battery or extreme cruelty.
For conditional permanent residents (CPRs) seeking a waiver of the
Form I-751 joint-filing requirement based on battery or extreme
cruelty, DHS provides an additional fee exemption in this final rule.
DHS believes that CPRs filing under this exception are similarly
situated to other VAWA requestors, for whom DHS has created new fee
exemptions in the proposed rule and final rule. As the proposed rule
noted with regards to VAWA self-petitioners, see 88 FR 402, 461 (Jan.
4, 2023), abused CPRs may still be living with their abuser or have
recently fled their abusive relationship when filing Form I-751.
Abusers often maintain control over financial resources to further the
abuse, and victims may have to choose between staying in an abusive
relationship and poverty and homelessness. Id. Therefore, CPRs who are
victims of abuse may lack financial resources or access to their
finances. DHS acknowledges that the proposed rule stated that it could
not provide this fee exemption because Form I-751 petitioners can seek
a joint-filing waiver on multiple grounds at once. Id. at 462. Upon
reconsideration, however, DHS sees no reason that providing the fee
exemption for CPRs who also request
[[Page 6214]]
multiple waivers would be infeasible operationally. DHS further notes
that CPRs requesting abuse waivers are a relatively small population,
id.; RIA Table 47; so even without the budget reductions described
earlier, this additional fee exemption would have minimal effect on
USCIS revenue and other fees.
Abused Spouses and Children Adjusting Status Under CAA and HRIFA
In the proposed rule, DHS proposed a fee exemption for abused
spouses and children adjusting status under CAA and HRIFA for Form I-
290B only if filed for any benefit request filed before adjusting
status or for Form I-485. In this final rule, DHS expands this
exemption for this category of requestors to include Form I-290B if
filed for ancillary forms associated with Form I-485. DHS also exempts
the fee for Form I-824 for this population. DHS has determined that
these new exemptions are warranted because these applicants can face
many of the ongoing financial obstacles as other VAWA requestors, as
discussed earlier. These additional fee exemptions, which DHS has
extended to one or most of the categories listed in Table 5B, improve
the parity of fee exemptions amongst humanitarian and protection-based
immigration categories. Given the very low number of applicants for
these two populations (see 88 FR 402, 462, Jan. 4, 2023), DHS
anticipates that these additional fee exemptions will have a negligible
impact on its budget.
Abused Spouses and Children Seeking Benefits Under NACARA and Abused
Spouses and Children of LPRs or U.S. Citizens Under INA sec. 240A(b)(2)
For abused spouses and children seeking benefits under NACARA as
well as abused spouses and children of LPRs or U.S. citizens under INA
sec. 240A(b)(2), DHS proposed fee exemptions for Form I-765 initial
requests submitted under 8 CFR 274A.12(c)(10). In this final rule, DHS
expands these fee exemptions to include Form I-I-765 renewal and
replacement requests, as well as Form I-824 for both categories of
requestors. DHS determined that these new exemptions are warranted
because abused NACARA applicants may face many of the ongoing financial
obstacles as other VAWA requestors, as discussed previously. These
additional fee exemptions, which DHS has extended to one or most of the
categories listed in Table 5B, improve the parity of fee exemptions
amongst humanitarian and protection-based immigration categories.
Special Immigrant Afghan or Iraqi translators or interpreters,
Iraqi nationals employed by or on behalf of the U.S. Government, or
Afghan nationals employed by or on behalf of the U.S. Government or
employed by the ISAF and their derivative beneficiaries.
DHS proposed fee exemptions in the proposed rule for Special
Immigrant Afghan or Iraqi translators or interpreters, Iraqi nationals
employed by or on behalf of the U.S. Government, or Afghan nationals
employed by or on behalf of the U.S. Government or employed by the ISAF
and their derivative beneficiaries filing Form I-290B for any benefit
request filed before adjusting status or Form I-485 and Form I-765
initial requests. In this final rule, DHS expands these fee exemptions
for this category of requestors to include Form I-290B if filed for
ancillary forms associated with Form I-485 and Form I-765 replacement
and renewal requests. DHS also exempts the fee for Form I-824 for this
population. DHS echoes the reasoning provided in the proposed rule as
to why this population merits additional fee exemptions. See 88 FR 463.
DHS believes that it is an inefficient use of USCIS resources to
adjudicate individual fee waiver requests for this group when such
requests will likely be granted. DHS also believes that the time saved
in the adjudication process for these individuals will demonstrate the
agency's ``full and prompt cooperation, resources, and support'' for
this population as directed by the President.\41\ Also, DHS experience
indicates that many in the OAW population move often, and have
experienced challenges in securing employment authorization documents
(EADs) that have resulted in USCIS receiving many EADs back as
undeliverable (for example, needing to relocate after being resettled
in the United States, or not having their initial EAD properly
transferred to their new address), which would have required them to
submit additional requests such as Form I-765 with the fee to request a
replacement EAD. DHS acknowledges that these challenges faced by this
population result from circumstances beyond their control, and
therefore provides expanded fee exemptions to improve their access to
immigration benefits for which they are eligible.
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\41\ See Memorandum on the Designation of the Department of
Homeland Security as Lead Federal Department for Facilitating the
Entry of Vulnerable Afghans into the United States, Aug. 29, 2021.
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Special Immigrant Juveniles (SIJs)
In the proposed rule, DHS proposed a fee exemption Form I-290B
filed by SIJs for any benefit request filed before adjusting status or
for Form I-485. In this final rule, DHS expands this fee exemption to
include Form I-290B if filed for ancillary forms associated with Form
I-485. DHS also provides a fee exemption for SIJs filing Form I-601A
and Form I-824. Notwithstanding that SIJs adjust status in the United
States and do not generally need to use Form I-601A, some individuals
in this category do file the form. Given the very small number of
receipts, DHS provides a fee exemption for SIJs filing Form I-601A. DHS
believes that these expanded fee exemptions align with the reasoning
for exempting fees for this population given in the proposed rule (see
88 FR 463) and improves the parity of fee exemptions among similarly
situated humanitarian and protection-based immigration categories.
Current and Former U.S. Armed Forces Service Members, Including Persons
Who Served Honorably on Active Duty in the U.S. Armed Forces filing
under INA sec. 101(a)(27)(K)
For current and former U.S. Armed Forces service members, including
persons who served honorably on active duty in the U.S. Armed Forces
filing under INA sec. 101(a)(27)(K), 8 U.S.C. 1101(a)(27(K), DHS
proposed a fee exemption for Form I-765 initial requests for the
service member in the proposed rule. DHS expands this fee exemption in
the final rule to include Form I-765 renewal and replacement requests
for the service member. DHS provides these additional fee exemptions in
furtherance of our commitment to reduce barriers and improve access to
immigration benefits for individuals who served in the U.S. Armed
Forces, as described in the proposed rule.\42\ DHS also believes that
providing a fee exemption for this population for Form I-765 renewal
and replacement requests improves parity with similarly situated
immigration categories like special immigrant Afghan and Iraqi
translators and interpreters.
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\42\ See 88 FR 465 (noting DHS's involvement in the initiative
to support service members, veterans, and their immediate family
members in recognition of their commitment and sacrifice).
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1. Summary Tables of Fee Exemption Changes in the Final Rule
Tables 5A, 5B, and 5C compare fee exemptions and fee waiver
eligibility at three points in time: those currently in effect, those
provided in the proposed
[[Page 6215]]
rule, and those provided in this final rule. These tables include fee
exemptions and fee waivers that are required under INA sec. 245(l)(7),
8 U.S.C. 1255(l)(7), and other immigration categories for which DHS is
providing additional fee exemptions and waivers. These tables do not
include all USCIS benefit requests or groups for which DHS currently
provides or will provide a fee exemption or waiver in this rule or by
policy.\43\
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\43\ For all other fee exemptions and fee waiver eligibility,
see 8 CFR 106.2, 106.3.
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Table 5A illustrates the fee exemptions and fee waiver
eligibility existing before the effective date of this final rule
(``current'').
Table 5B lists forms eligible for fee waivers as provided
in the proposed rule, additional fee exemptions provided in the
proposed rule, and additional fee exemptions provided in this final
rule.
Table 5C summarizes the available fee exemptions and fee
waiver eligibility as of the effective date of this final rule, which
includes currently available fee exemptions and the additional fee
exemptions provided in the proposed rule.
BILLING CODE 9111-97-P
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BILLING CODE 9111-97-C
c. Codifying Fee Waiver Eligibility Criteria
The proposed rule specified that discretionary waiver of fees
requires that a waiver based on inability to pay be consistent with the
status or benefit sought, including benefits that require demonstration
of the applicant's ability to support himself or herself, or
individuals who seek immigration status based on a substantial
financial investment. See 88 FR 402, 593 (proposed 8 CFR
106.3(a)(1)(ii)). The final rule removes this regulatory text because
it is redundant and unnecessary, as the forms eligible for fee waiver
are enumerated at 8 CFR 106.3(a)(3). The final rule codifies that a
person demonstrates an inability to pay the fee by establishing at
least one of the following criteria:
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\98\ These applicants are eligible for naturalization under INA
sec. 328; 8 U.S.C. 1439. Most military applicants are eligible for
naturalization without lawful permanent residence under INA sec.
329; 8 U.S.C. 1440.
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Receipt of a means-tested benefit as defined in 8 CFR
106.1(f)(3) at the time of filing;
Household income at or below 150 percent of the Federal
Poverty Guidelines at the time of filing; or
Extreme financial hardship due to extraordinary expenses
or other circumstances that render the individual unable to pay the
fee.
See 8 CFR 106.3(a).
This change codifies the 2011 Fee Waiver Policy criteria that USCIS
may grant a request for fee waiver if the requestor demonstrates an
inability to pay based on receipt of a means-tested benefit, household
income at or below 150 percent of the FPG, or extreme financial
hardship.\99\ While not a change
[[Page 6233]]
to fee waiver eligibility criteria, DHS believes that codifying these
criteria in this final rule will provide consistency and transparency
that is responsive to the concerns of many commenters.
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\99\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, Policy Memorandum, PM-602-0011.1, ``Fee Waiver
Guidelines as Established by the final rule of the USCIS Fee
Schedule; Revisions to Adjudicator's Field Manual (AFM) Chapter
10.9, AFM Update AD11-26'' (Mar. 13, 2011), https://www.uscis.gov/sites/default/files/document/memos/FeeWaiverGuidelines_Established_by_the_Final%20Rule_USCISFeeSchedule.pdf.
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d. No Mandatory Use of Form I-912
In the proposed rule, 8 CFR 106.3(a)(2) stated, ``Requesting a fee
waiver. A person must submit a request for a fee waiver on the form
prescribed by USCIS in accordance with the instructions on the form.''
In this final rule, USCIS will maintain the status quo of accepting
either Form I-912 or a written request. The final rule will revert to
the current effective language at 8 CFR 103.7(c)(2) (Oct. 1, 2020),
which states, ``Requesting a fee waiver. To request a fee waiver, a
person requesting an immigration benefit must submit a written request
for permission to have their request processed without payment of a fee
with their benefit request. The request must state the person's belief
that he or she is entitled to or deserving of the benefit requested,
the reasons for his or her inability to pay, and evidence to support
the reasons indicated. There is no appeal of the denial of a fee waiver
request.''
After considering public comments in response to the proposed
requirement to submit Form I-912, DHS agrees with multiple points made
by commenters. DHS acknowledges that requiring submission of Form I-912
could create an additional burden on certain requestors. See 88 FR 402,
458 (Jan. 4, 2023). Due to the multiple ways of establishing one's
inability to pay, see 8 CFR 106.3(a)(1), Form I-912 may be complex for
some requestors. DHS also recognizes that some requestors, particularly
those who are struggling financially, may face difficulty accessing
printing and internet services. DHS believes that flexibility is
important in dealing with these populations, and allowing requestors to
seek fee waivers via written request will improve access to immigration
benefits consistent with E.O. 14012, 86 FR 8277 (Feb. 5, 2021). Because
less than one percent of fee waivers are requested by written request
instead of Form I-912, continuing to allow written requests will not
significantly impact USCIS operations. See 88 FR 402, 458 (Jan. 4,
2023). For these reasons, this final rule maintains the current
effective regulation that allows requestors to obtain a fee waiver by
written request without filing Form I-912.
e. Child's Means-Tested Benefit Is Evidence of Parent's Inability To
Pay
After considering the comments on the proposed rule DHS has decided
to modify the instructions for Form I-912 to accept evidence of receipt
of a means-tested benefit by a household child as evidence of the
parent's inability to pay because eligibility for these means-tested
benefits is dependent on household income. Such benefits would include
public housing assistance, Medicaid, SNAP, TANF, and SSI, although DHS
is not codifying specific means-tested benefits and will implement
those as examples in guidance through the updated Form I-912
instructions. DHS has decided to limit this policy to household spouses
and children because other household members' eligibility for certain
means-tested benefits may not reflect the financial need of the fee
waiver requestor. For example, for SSI purposes an individual's deemed
income only includes the income of their spouse and parents with whom
they live and their Form I-864 sponsor.\100\ USCIS retains the
discretion to determine whether any requestor is eligible for a fee
waiver, including whether the means-tested benefit qualifies as
provided in 8 CFR 106.1(f) and the Form I-912 instructions.
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\100\ Soc. Sec. Admin., ``Understanding Supplemental Security
Income, What Is Income?'' (2023), https://www.ssa.gov/ssi/text-income-ussi.htm (last visited Aug. 21, 2023).
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10. Procedural Changes To Address Effects of Fee Exemptions and
Discounts
DHS is making procedural changes in the final rule to address
issues that it has experienced with fee-exempt and low fee-filings. DHS
appreciates the concerns of commenters and is making changes to address
those concerns by lowering many fees below the amount that was
proposed, establishing discounts for small employers and nonprofits,
and adding multiple fee exemptions. However, to provide the requested
changes, DHS must make some adjustments to codified procedural
requirements to mitigate some of the unintended consequences of
providing limited discounts and free services and some of the actions
for which those changes may provide an incentive.
a. Duplicate Filings
The final rule provides that a duplicate filing that is materially
identical to a pending immigration benefit request may be rejected. See
8 CFR 103.2(a)(7)(iv). DHS did not initially propose to prohibit
multiple filings of identical requests to deter multiple filings of
requests that have no or minimal fee, to reduce backlogs, and to
improve processing times.
DHS is concerned that the new fee exemptions listed above will lead
to the filing of multiple or simultaneous filing of requests that could
create jurisdictional conflicts between DHS offices or individual
immigration service officers who adjudicate the same types of requests.
For example, filing multiple Forms I-290B, Notice of Appeal or Motion,
may lead to the filing of multiple motions, multiple appeals, or the
simultaneous filing of motions and appeals that would create
jurisdictional conflicts between the Administrative Appeals Office
(AAO) and other DHS offices. USCIS must intake the request, process or
reject the request, and incur the associated costs for each duplicate,
multiple or original request even when no fee is required. Multiple
filings increase costs to USCIS to reject or process and it may
exacerbate backlogs because free services or those with minimal fees do
not provide revenue that can be used to fund new processing capacity.
Requesters who file multiple requests consume excessive USCIS resources
to the detriment of those who file one legitimate request.
Although it seems self-evident that USCIS can reject a materially
identical filing of the exact same form while a previous request for
the same benefit for the same person is still pending, that authority
is not codified. Historically, USCIS has accepted duplicate filings of
certain forms assuming the fee would cover the duplicate adjudication
effort, if any. USCIS experience in administering OAW, U4U, the
processes for Cubans, Haitians, Nicaraguans, and Venezuelans, and FRP
has found that applicants submit multiple parole requests when they are
fee exempt (as they are for OAW), as well as multiple Forms I-134A,
Online Request to be a Supporter and Declaration of Financial Support,
for the same prospective beneficiary. USCIS also receives duplicate
Forms I-730, Refugee/Asylee Relative Petition, and Forms I-918,
Petition for U Nonimmigrant Status, which do not have a filing fee. For
some of these cases USCIS will adjudicate the initial and duplicate
petitions on the merits, increasing costs to USCIS. Others are
administratively closed, rejected, or consolidated with the duplicate
request. All of these actions take time away from processing other
requests. DHS is concerned that the reduction of fees for the
additional
[[Page 6234]]
forms provided in this rule, see Table 5B, will in the same way cause
applicants to submit multiples of the same request.
This change is necessitated by DHS's decision to provide the
additional free services in the fee rule as requested by commenters. As
explained above, USCIS experience is that when a full cost recovery fee
is charged, duplicate, identical filings are very uncommon, but when
the request is free or minimal (such as with the $10 H-1B Registration
Fee) they are submitted more frequently. Because this problem results
from fee exempt filings, and this rule provides additional fee
exemptions as requested by commenters, codifying this restriction as a
related change to offset the possible negative effects of the relief is
a logical outgrowth of the proposed rule.\101\ USCIS already rejects or
administratively closes a request that is materially identical to a
request that is being adjudicated because a requester generally cannot
receive two or more identical immigration statuses, classifications,
visas, or benefits. Individuals generally do not have a substantive
right to receive multiple issuances of identical immigration benefits,
which by their nature are only of value at first issuance (e.g., two
green cards or two travel documents). Thus, DHS will only approve
document replacement requests under certain circumstances such as when
the document is lost, stolen, or destroyed. In addition, after
employees have already processed one request and made a decision,
requiring the same or another agency employee to process the same
request all over again, while a backlog of requesters remain waiting
for attention, is not an efficient use of agency resources, especially
when the request has no fee. This minor change to USCIS intake
procedures is procedural in nature and does not alter the substantive
rights of individuals. DHS is codifying this practice to ameliorate
unintended consequences that may logically flow from the actions we are
taking to provide more fee relief in this rule. These changes are made
in the final rule as a procedural change and thus public comment is not
required. See 5 U.S.C. 553(b)(A). Therefore, DHS is adding new 8 CFR
103.2(a)(7)(iv) to provide that a request that is materially identical
to a pending request may be rejected.
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\101\ An agency may make changes that follow logically from or
reasonably develop the rules the agency proposed. See, Air Transport
Ass'n of America v. C.A.B., 732 F.2d 219 (D.C. Cir. 1984).
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b. Revocations
The final rule changes to a minor extent the handling of an
approved benefit request if an incorrect fee is submitted or if the fee
payment instrument is dishonored. See 8 CFR 103.2(a)(7)(ii)(D)(1) and
106.1(c)(2).
DHS is authorized to charge fees and inherent in that authority is
the authority to enforce the payment of the fee and sanction failure to
pay the fee. Payment of a codified fee is a fundamental eligibility
criterion for any immigration benefit request. Failure to pay the
correct fee by falsifying or misrepresenting eligibility for a fee
waiver, exemption, or discount, as well as a dishonored check, stop
payment, credit card dispute, or closed account, renders the requester
ineligible for the approved benefit. Without enforcement capability,
failure to pay fees would have no ramifications and possibly cause
considerable damage to the ability of USCIS to fund its operations.
Regarding the fee discounts, DHS foresees the situation where a
petitioner may submit a lower fee for which they may not qualify and
USCIS may not catch that error at intake. For example, in the five
fiscal years preceding the FY 2016/2017 fee rule, an average of 231
petitions per year were submitted with a Request for Premium Processing
Service, Form I-907, accompanied by a check that was dishonored by the
remitting bank. 81 FR 73292, 73314. For fiscal year 2023, as of July
15, 2023, USCIS received between 30 to 43 dishonored payments per month
that were associated with a Form I-129 filing, with approximately 10 of
those being dishonored for stop-payment. If a benefit approved under
these circumstances is not revoked, petitioners would have the
incentive to request premium processing services in order to receive a
swift approval, knowing they would not face any consequences once the
bank dishonors the premium processing payment. Id.
Accordingly, balancing the need to provide relief to those
requesters who have less ability to pay with the need to fully fund
DHS, in the final rule DHS provides that if USCIS accepts a benefit
request and determines later that the request was not accompanied by
the correct fee, USCIS may deny the request. See 8 CFR
103.2(a)(7)(ii)(D)(1). This change will insulate USCIS against the
falsification of fee discount eligibility and the negative revenue
impacts that would cause. Further, many of the discounted fee requests
will include a request for premium processing and USCIS may approve
them in a few days. The alternative to revocation on notice would be
for USCIS to hold each benefit request until the financial instrument
used to pay the fee has finally cleared or been rejected. In the
interest of administrative efficiency and prompt processing of benefit
requests, DHS has rejected that alternative. Thus, if the benefit
request was approved before USCIS determines the correct fee was not
paid, the approval may be revoked upon notice. Id. Sending a Notice of
Intent to Revoke (NOIR) will be more effective than billing for the
unpaid fee because the requestor may simply ignore the bill while
confident that it would cost USCIS more to attempt collection through
litigation or other means. In most cases, the NOIR will be cured by
payment of the correct amount.
The first sentence of proposed 8 CFR 106.1(c)(2), stated, ``If the
benefit request was approved, the approval may be revoked upon
notice.'' DHS is revising 106.1(c)(2) to clarify that if the benefit
request was approved, the approval may be revoked upon notice,
rescinded, or canceled subject to statutory and regulatory requirements
applicable to the immigration benefit request. 8 CFR 106.1(c)(2). DHS
does not in all cases have authority to revoke an approval upon notice.
For example, DHS cannot administratively revoke naturalization and must
use proceedings in a Federal district court following INA section
340(a), 8 U.S.C. 1451(a). Similarly, cancellation under INA section
342, 8 U.S.C. 1453, is the only route to pursue revocation if a
certificate of citizenship or naturalization has already been issued.
Accordingly, while these authorities already exist in statute and
rulemaking is not required to implement them, in the final rule DHS is
revising 8 CFR 106.1(c)(2) to explicitly acknowledge that USCIS' right
to revoke an approval upon notice in cases where a fee payment is not
honored may be subject to statutory limitations.
c. No Initial Field Review for Fee Exempt Form I-290B
When an affected party files an appeal of an initial USCIS
decision, the USCIS officer who made the initial decision reviews the
appeal case and decides whether the case warrants favorable action. See
8 CFR 103.3(a)(2)(ii). During their review, the officer decides whether
the case warrants favorable action and if warranted, may reverse the
initial unfavorable decision. If the officer determines that favorable
action is not warranted, he or she must ``promptly'' forward the appeal
to the AAO. See 8 CFR 103.3(a)(2)(iv). DHS did not propose exceptions
to 8 CFR
[[Page 6235]]
103.3(a)(2)(ii) in the proposed rule. However, as outlined previously
in this section, the final rule makes Form I-290B, Notice of Appeal or
Motion, fee exempt for several new populations. See Table 48, in
Section P. Fee Exemptions of RIA. To avoid fee exempt requests
consuming excessive USCIS resources, in the case of a fee waived or fee
exempt appeal under 8 CFR 106.3, this rule provides that USCIS may
forward the appeal for adjudication without requiring a review by the
official who made the unfavorable decision. See 8 CFR 103.3(a)(2)(ii)
(providing that USCIS may forward the appeal for adjudication without a
review by the official who made the unfavorable decision).
As stated previously in this section, free services do not provide
revenue that can be used to fund new processing capacity. In addition,
making an immigration benefit request free may increase the volume of
those filings. The review by the official who made the unfavorable
decision is a step in the appeal process that costs USCIS time and
money and exacerbates backlogs by requiring officers to review already
decided cases. To minimize the workload on USCIS officers who are
required to review a denied request after appeal that may be caused by
free appeals, DHS is eliminating the regulatory requirement to review
appeals before forwarding them to the AAO if the appeal was fee exempt
or the fee was waived. Elimination of mandatory field review is likely
to decrease appeal processing times. Based on the FY 2017 average time
for the AAO to receive an appeal from the field, the elimination of
mandatory field review could save up to 113 days in processing time, on
average, for cases requiring AAO review. This change will expedite the
appeals process and provide the affected party a quicker decision. This
change is both a logical outgrowth of the proposed rule and a logical
extension of changes made in the final rule at the request of
commenters. In addition, affected parties would not incur costs from
this change because it is a procedural matter of internal agency
management. DHS does not anticipate any cost savings for USCIS from
this change, as any savings will be offset by a full appellate review
at the AAO.
11. Adjustment of Status (Form I-485) and Family-Based Fees
a. Bundling of Fees for Form I-765 and I-131
In this final rule, DHS provides that Form I-485, Application to
Register Permanent Residence or Adjust Status, applicants will pay half
of the regular Form I-765, Application for Employment Authorization,
fee when it is filed with a Form I-485 for which the fee is paid if the
adjustment application is pending. See 8 CFR 106.2(a)(44)(i). DHS had
proposed requiring the full fee for Form I-765, and Form I-131,
Application for Travel Document, when filed with Form I-485. See 88 FR
402, 491. Instead, DHS is setting the filing fee for a Form I-765 filed
concurrently with Form I-485 after the effective date at $260. See 8
CFR 106.2(a)(44)(i). Applicants will pay the same fee to renew their
Employment Authorization Document (EAD) while their Form I-485 is
pending. Id. DHS is unbundling the forms to make USCIS processing times
more efficient by eliminating Forms I-765 filed for individuals who are
not in need of employment authorization or Forms I-131 for individuals
who have no intention of traveling outside the United States. Bundling
Forms I-765, I-131, and I-485 transfers the cost of fees not paid by
these applicants and results in other applicants paying for forms in a
bundle they may not need.
Nevertheless, after considering the public comments DHS decided to
provide the half price Form I-765 to reduce the burden on low, middle-
income, or working-class requesters. DHS acknowledges that many
prospective applicants for lawful permanent resident (LPR) status may
lack work authorization and therefore struggle to pay the filing fee
for Form I-765. An applicant may request a fee waiver for Form I-765.
See 8 CFR 106.3(a)(3)(ii)(F). In addition, Forms I-131 and I-765 are
fee exempt for certain categories of applicants. See 8 CFR 106.3(b).
b. Child Discount for Form I-485
DHS initially proposed that children filing Form I-485 with their
parents pay the same fee as adults, $1,540. 88 FR 402, 494 (Jan. 4,
2023). In the final rule, DHS provides that, when filing with parents,
children will pay $950 for Form I-485. See 8 CFR 106.2(a)(20)(ii). The
current $750 fee went into effect in December 2016 and the new $950 fee
is based on the increase in the CPI-U (the amount of inflation) between
December 2016 and June 2023, like other inflation adjusted fees in this
rule. DHS agrees with many of the points made by commenters, including
that the increased fee may be burdensome to filers and affect family
reunification, and that there may be a cost basis for distinguishing a
Form I-485 filed by a child in conjunction with a parent from other
Form I-485s. DHS also understands the social benefit of family
immigration and the potential impacts the proposed fee could have on
children and families. Therefore, after reviewing the comments, DHS is
reducing the fee for applicants under age 14 who file concurrently with
a parent to $950. Additionally, children under 14 who have properly
filed the Form I-485 with a fee on or after July 30, 2007, and before
the effective date of the final rule are not required to pay additional
fees for the Form I-765 and Form I-131. See 8 CFR 106.2(a)(7)(iv),
(44)(ii)(A).
12. Adoption Forms Changes
After considering public comments, in the final rule DHS is
providing additional fee exemptions for adoptive families. See 8 CFR
106.2(a)(32) and (48). Specifically, DHS will also provide fee
exemptions for:
Second extensions.
Second change of country requests.
Duplicate approval notices for both the orphan and the
Hague process.
These would all be requested using Supplement 3 for either the
orphan (Form I-600/I-600A) or Hague (Form I-800A) process. This is in
addition to the exemptions that DHS already provides for the Supplement
3 for first extensions and first change of country requests. Providing
a second free extension will provide another 15 months of suitability
approval validity at no additional cost to the applicants. DHS
recognizes that intercountry adoptions may take an increasing amount of
time because of factors outside the control of adoptive families, such
as country conditions, and believes this will help reduce related
burdens on adoptive families.
The final rule fee for the Supplement 3 for the orphan and Hague
process will be $455. Petitioners will pay less under the final rule
for most scenarios where they request action on a suitability
application for the orphan or Hague process. Therefore, DHS believes
the fees and new fee exemptions properly align with the needs of the
adoption community while not unnecessarily shifting the USCIS adoption
program costs by increasing fees for others.
13. Naturalization and Citizenship Fees
a. Half Fee for Form N-400
In the proposed rule, applicants with household incomes not more
than 200 percent of the Federal Poverty Guidelines (FPG) would be
eligible for the reduced fee for Form N-400, Application for
Naturalization. See 88 FR 402, 487-488 (Jan. 4, 2023). However, DHS
notes that in recent years only one third of new lawful permanent
residents (LPR) naturalized within 6
[[Page 6236]]
years of obtaining LPR status,\102\ and stakeholders have identified
the fee for Form N-400 as a significant obstacle to
naturalization.\103\
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\102\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, ``Trends in Naturalization Rates: FY 2018
Update'' (Sept. 2021), https://www.uscis.gov/sites/default/files/document/reports/Trends_In_Naturalization_Rates_FY18_Update_Report.pdf.
\103\ See, e.g., Comment Submitted by CASA, May 19, 2021,
https://www.regulations.gov/comment/USCIS-2021-0004-7122.
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In response to public comments and additional stakeholder feedback,
and in recognition of the financial gains immigrants obtain with
naturalization and the benefits that the United States obtains from new
naturalized citizens, this final rule expands eligibility for paying
half of the regular fee for Form N-400. An applicant with household
income at or below 400 percent of FPG may pay half price for their
Application for Naturalization. See 8 CFR 106.2(b)(3)(ii). DHS believes
that this change will provide additional relief to longtime residents
who struggle to pay naturalization fees without requiring further fee
increases for other forms to offset the cost. The increased income
threshold for a reduced naturalization fee will also enable the United
States to further benefit from newly naturalized citizens, including
their greater civic involvement and tax revenues.\104\
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\104\ See Holly Straut-Eppsteiner, Cong. Research Servs.,
R43366, ``U.S. Naturalization Policy,'' (May 2021), https://crsreports.congress.gov/product/pdf/R/R43366.
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b. Fee Exemption for Adoption Related Form N-600
The final rule provides that Forms N-600, Application for
Certificate of Citizenship and N-600K, Application for Citizenship and
Issuance of Certificate under Section 322, are fee exempt for certain
adoptees. See 8 CFR 106.2(b)(7)(ii) and (8).
Multiple commenters asked USCIS to provide Certificates of
Citizenship for all children immigrating based on adoption at no
additional cost, as the fee would be an unfair burden on adoptive
families. Commenters opposed the increase to the filing fees for
adoptive families whose children enter the United States on certain
types of visas, reasoning that the certificate should be provided at no
additional cost, once all the necessary legal steps have been
completed, just as it is provided at no cost for adopted children who
enter on a different type of visa for children with final adoptions
(IR-3 and IH-3 visas). Commenters indicated that if a Certificate of
Citizenship is not obtained at the time of adoption, this becomes a
further burden for adoptees.
USCIS already provides Certificates of Citizenship to certain
adopted children who come to the United States with a final adoption
(children with an IR-3 or IH-3 visa) \105\ and meet the conditions of
INA sec. 320, 8 U.S.C. 1431, without them having to file a Form N-600
and without paying a fee. USCIS can do this because children with an
IR-3 or IH-3 visa generally automatically acquire U.S. citizenship upon
their admission to the United States as lawful permanent residents and
USCIS can make a citizenship determination based on their underlying
immigration petition approval (Form I-600 or Form I-800) without any
additional evidence. In addition, these children are in visa categories
that are only for adopted children who generally automatically acquire
citizenship upon admission, and therefore USCIS can easily identify
these children based on their visa category. USCIS is not able to
provide Certificates of Citizenship without a Form N-600 for other
categories of children, because USCIS cannot make a citizenship
determination without additional evidence or cannot identify the
children based on their visa category. For example, USCIS cannot issue
Certificates of Citizenship without a Form N-600 for children
immigrating based on adoption who do not have final adoptions (IR-4s
and IH-4s) because they do not automatically acquire citizenship upon
their admission and need to submit additional evidence of a full and
final adoption for a subsequent citizenship determination. USCIS also
cannot automatically issue Certificates of Citizenship to adopted
children who are issued IR-2 visas, because stepchildren are also
issued IR-2 visas but do not automatically acquire U.S. citizenship
upon their admission. USCIS cannot automatically determine which
children in these visa categories automatically acquire citizenship and
which do not, and thus additional evidence submitted with the N-600
application is required. DHS recognizes the unique vulnerability of
adopted children and the overall costs that adoptive families face and
wishes to reduce the burden on adoptive families. DHS also notes a
passport is available to obtain proof of citizenship without filing
Form N-600 for adopted children who automatically acquire or derive
citizenship. If adoptive families wish to seek a Certificate of
Citizenship, DHS cannot eliminate the requirement to file a Form N-600
for additional categories of adopted children (such as IR-2, IR-4, and
IH-4). However, after considering many comments requesting a free N-600
or N-600K for adopted children, DHS will exempt individuals who are the
subject of a final adoption for immigration purposes and meet (or met
before age 18) the definition of child under section 101(b)(1)(E), (F),
or (G) of the INA from Form N-600 filing fees. 8 CFR 106.2(b)(7). This
will include adoptees who are over age 18 at the time of filing or
adjudication of the N-600, but who met the definition of child under
section 101(b)(1)(E), (F), or (G) of the INA before turning 18. DHS
will also exempt children who are the subject of a final adoption for
immigration purposes and meet the definition of child under section
101(b)(1)(E), (F), or (G) of the Act from Form N-600K filing fees.
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\105\ See U.S. Citizenship & Immigr. Servs, U.S. Dep't of
Homeland Security, ``Your New Child's Immigrant Visa,'' https://www.uscis.gov/adoption/bringing-your-internationally-adopted-child-to-the-united-states/your-new-childs-immigrant-visa/your-new-childs-immigrant-visa (last updated Dec. 15, 2021), for visa categories for
adopted children.
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DHS realizes that this exemption seems to favor adopted over
biological children in allowing the filing without a fee. DHS did not
take this perception lightly when considering whether adopted children
should be able to file a fee exempt Form N-600/600K. In the end, DHS
reasoned that many adoptive families have already paid USCIS fees for
the Form I-600A/I-600, Form I-800A/I-800, or Form I-130, Petition for
Alien Relative, whereas the Form N-600 fee may be the only USCIS fee
that families of biological children would pay if they acquired
citizenship under INA 301 or 309. DHS also recognizes that families may
also choose to apply for a passport to document their child's
citizenship in cases where a biological child automatically acquired
citizenship. The exemption fits logically within the structure of this
rule, and results in a minimal loss of revenue from adoptee/adopted
child Form N-600 and N-600K fees. Thus, DHS has decided to respond
favorably to the request of many commenters and exempt certain adoptees
from the N-600 fee and adopted children from the N-600K fee. 8 CFR
106.2(b)(7) and (8).
14. Additional Changes
In the final rule DHS:
Deletes proposed 8 CFR 106.3(a)(5), ``Fees under the
Freedom of Information Act (FOIA),'' because it is unnecessary. DHS
FOIA regulations at 6 CFR 5.11(k) address the waiver of fees under
FOIA, 5 U.S.C. 552(a)(4)(A)(iii).
Removes the fee exemption for Form I-601, Application for
Waiver of Grounds of Inadmissibility, for applicants seeking
cancellation of removal under INA 240A(b)(2), 8 U.S.C. 1229b(b)(2),
since they cannot use a
[[Page 6237]]
waiver of inadmissibility to establish eligibility for this type of
relief from removal. Matter of Y-N-P-, 26 I&N Dec. 10 (BIA 2012); cf.
proposed 8 CFR 106.3(b)(8)(i). Therefore, the form is not filed by that
population, so the exemptions was not needed making the text
superfluous.
Codifies that USCIS will provide 30-day advance public
notification before a currently acceptable payment method will be
changed. 8 CFR 106.1(b). Commenters requested that advance notice be
provided when a payment method is changed. As explained more fully in
the responses to the comments on the subject, DHS is codifying this
procedural requirement.
Revises proposed 8 CFR 106.2(d)(2) to provide that all
USCIS fees that DHS has the authority to adjust under the INA (those
not fixed by statute) may be increased by the rate of inflation by
final rule. The change is limited only to clarify that all fees not
fixed by statute are increased simultaneously. This change is explained
more fully in the response to the public comments on this subject.
Amends 8 CFR 204.5(p)(4)(ii) in this final rule by
removing the clause ``but not to exceed the period of the alien's
authorized admission'' so that the provision once again states that
``Employment authorization under this paragraph may be granted solely
in 1-year increments.'' The last clause in Sec. 204.5(p)(4)(ii), which
is being removed in this final rule, was added in the 2020 Fee Rule in
a revision that was intended to remove ``8 CFR 103.7(b)(1)'' and
replace it with ``8 CFR 106.2.'' 85 FR 46922; 84 FR 62364. In neither
the 2020 Fee Rule nor in the January 4, 2023, proposed rule did DHS
explain why the rule added or retained the last clause, respectively.
Although the proposed rule proposed to retain this clause, DHS has
determined that the clause is unnecessary and potentially confusing. As
explained in the 2016 final rule that created Sec. 204.5(p), the 1-
year grant of employment authorization is meant to be a stopgap measure
for nonimmigrants facing compelling circumstances and, if granted,
provides a period of authorized stay.\106\
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\106\ See Retention of EB-1, EB-2, and EB-3 Immigrant Workers
and Program Improvements Affecting High-Skilled Nonimmigrant Workers
Final Rule, 81 FR 82398, 82424-82425) (Nov. 18, 2016).
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D. Corrections
DHS notes multiple non-substantive errors in the proposed rule as
follows:
The preamble to the proposed rule states, ``However, as to
Forms N-565 and N-600K, both the current fees and the proposed fees are
less than the estimated cost (fee-paying unit cost) for each
naturalization form.'' 88 FR 402, 485-486 (Jan. 4, 2023) (emphasis
added). ``However, for Forms N-565 and N-600K, the proposed fees are
below the estimated cost from the ABC model, thus DHS proposes no
discount for online filing of the N-forms.'' Id. at 486 (emphasis
added). These statements were incorrect as to the Form N-565,
Application for Replacement Naturalization/Citizenship Document,
because the proposed fee was higher than its fee-paying unit cost. This
error is immaterial to the final rule because the current N-565 fee is
being increased by the rate of inflation as previously explained.
DHS proposed to remove text from Form I-485, Supplement A,
Supplement A to Form I-485, Adjustment of Status Under Section 245(i),
regarding the statutory exemptions to the required INA sec. 245(i)
statutory sum when the applicant is an unmarried child under 17 or the
spouse or the unmarried child under 21 of an individual with lawful
immigration status and who is qualified for and has applied for
voluntary departure under the family unity program. See 88 FR 402, 494
(Jan. 4, 2023). However, Form I-485, Supplement A, does not contain the
language DHS proposed to remove. DHS further stated that it was
unnecessary to codify the exemptions from the required INA sec. 245(i)
sum into the CFR, but the proposed regulatory text did include the
exemptions.
The proposed regulatory text for 8 CFR 212.19(e) stated:
``An alien seeking an initial grant of parole or re-parole will be
required to submit biometric information. An alien seeking re-parole
may be required to submit biometric information.'' The second sentence
was included in error and has been removed from the final rule.
E. Status of Previous USCIS Fee Regulations
DHS issued a final rule to adjust the USCIS fee schedule on August
3, 2020, at 85 FR 46788. The rule was scheduled to become effective on
October 2, 2020. However, that rule was preliminarily enjoined.
Immigrant Legal Res. Ctr. v. Wolf, 491 F. Supp. 3d 520 (N.D. Cal.
2020); Nw. Immigrant Rights Project v. USCIS, 496 F. Supp. 3d 31
(D.D.C. 2020). Consequently, USCIS has not implemented the fees set out
in the 2020 fee rule and is still using the fees set in the 2016 fee
rule unless an intervening rulemaking has codified a different
fee.\107\ DHS discussed the effects of the injunctions and their
relationship to this rule in detail in the proposed rule. See 88 FR
402, 420 (Jan. 4, 2023). This preamble discusses substantive changes
that refer to the requirements of the regulations that existed before
October 2, 2020.\108\ Likewise, the regulatory impact analysis (RIA)
for this proposed rule analyzes the impacts of the changes between the
pre-2020 fee rule regulations that DHS is following under the
injunctions and those codified in this rule.\109\
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\107\ See 86 FR 7493 (Jan. 29, 2021) (announcing that DHS is
complying with the terms of the orders, not enforcing the regulatory
changes set out in the 2020 rule, and accepting fees that were in
place before October 2, 2020).
\108\ As explained in the proposed rule, the effects of the
injunction of the 2020 fee rule, intervening rules, and the
codification but ineffectiveness of the 2020 fee rule may result in
the standard of citing to the CFR print edition date being
inaccurate because title 8 was amended by a number of rules in and
since calendar year 2020. 88 FR 421. Therefore, regulations that
existed on October 1, 2020 are followed by that date, and provisions
that were codified by the 2020 fee rule are followed by the
effective date of the 2020 fee rule, October 2, 2020.
\109\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, FY 2022-2023 Fee Review Regulatory Impact
Analysis (Jan. 4, 2023), https://www.regulations.gov/document/USCIS-2021-0010-0031.
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F. Severability
In the approach that DHS adopts in this final rule, the new fees
allow USCIS to recover full cost given projected volumes and all policy
considerations. However, if DHS were prohibited from collecting any new
fee for any reason, DHS believes this rule is structured so that a
stay, injunction or vacatur of a fee set by this rule could be narrowly
tailored to remedy the specific harm that a court may determine exists
from the specific fee or fees challenged. USCIS would be able to
continue operations, perhaps at a reduced level or by shifting
resources in the absence of the fee until DHS is able to conduct new
rulemaking to re-set fees and correct the deficiencies that resulted in
the court order. Operating without one or a few of the new fees would
be preferable to an invalidation of all the new fees, which would great
disruption and deterioration of USCIS operations.
DHS believes that the provisions in this rule can function
independently of each other. For example, the H-1B Registration Fee,
Asylum Program Fee, and genealogy fees could be stalled while a new
rule is undertaken without affecting all other fees generally. This
would reduce USCIS projected revenue, carryover balances and require
realignment of the USCIS budget and a reassessment of spending
priorities. See
[[Page 6238]]
88 FR 402, 517 (Jan. 4, 2023). However, USCIS constantly assesses its
budget and spending to avoid a deterioration in service considering its
fees have not been increased since 2016. Additionally, the statutory
authority for this rule provides that ``fees for providing adjudication
and naturalization services may be set at a level that will ensure
recovery of the full costs of providing all such services'' and does
not require that DHS must recover full costs. INA section 286(m), 8
U.S.C. 1356(m). Therefore, to protect the goals for which this rule is
being proposed, DHS is codifying our intent that the provisions be
severable so that, if necessary, the regulations overall can continue
to function should a particular provision be stricken. See 8 CFR 106.6.
III. Related Rulemakings and Policies
DHS is engaging in multiple rulemaking actions that are in various
stages of development.\110\ DHS realizes that policy and regulatory
changes can affect staffing needs, costs, fee revenue, and processing
times. DHS has considered each of these other rules for peripheral,
overlapping, or interrelated effects on this rule, and has analyzed the
potential effects of rules that may impact or substantively overlap
with this proposal, if any. See 88 FR 402, 432 n.78 (Jan. 4, 2023).
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\110\ See Office of Information and Regulatory Affairs, ``Fall
2023 Unified Agenda of Regulatory and Deregulatory Actions,''
https://www.reginfo.gov/public/do/eAgendaMain (last visited December
29, 2023).
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DHS has also, to the extent possible, considered the effects, if
any, on this rule of all intervening or future legislation and policy
changes of which USCIS is aware. Immigration policy changes frequently,
and initiatives may come about without being incorporated in a proposed
and final rule simply due to the time required for rule development and
finalization. DHS, therefore, does not and cannot assert that it knows
and has considered every policy change that is planned or that may
occur at all levels and agencies of the U.S. Government that may
directly or indirectly affect this rule. However, DHS believes that it
has examined and considered all relevant aspects of the problems that
this rulemaking solves, responded to all substantive public comments,
articulated a satisfactory analysis and reasoned explanation for each
change and the rule, and not relied on factors which Congress has not
intended us to consider. Specific recent and planned DHS rules and
major policy changes and their effects on this rule are as follows:
A. New Processes
1. Uniting for Ukraine (U4U)
On April 21, 2022, the United States announced a key step toward
fulfilling President Biden's commitment to welcome Ukrainians fleeing
Russia's invasion.\111\ Uniting for Ukraine (U4U) provides a pathway
for Ukrainian citizens and their immediate family members who are
outside the United States to come to the United States and stay
temporarily for a 2-year period of parole. Ukrainians participating in
U4U must have a supporter in the United States who agrees to provide
them with financial support for the duration of their stay in the
United States.
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\111\ See USCIS, Uniting for Ukraine, at https://www.uscis.gov/ukraine (last visited Aug. 24, 2023).
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2. Operation Allies Welcome
On August 29, 2021, President Biden directed DHS to lead and
coordinate ongoing efforts across the Federal Government to support
vulnerable Afghans, including those who worked alongside the U.S.
government in Afghanistan for the past 2 decades, as they safely
resettle in the United States. USCIS is and has been responsible for
large portions of the implementation of Operation Allies Welcome
(OAW).\112\
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\112\ See U.S. Dep't of Homeland Sec, Operation Allies Welcome,
https://www.dhs.gov/allieswelcome (last updated Nov. 27, 2023).
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3. Processes for Cubans, Haitians, Nicaraguans, and Venezuelans
Over the last year, DHS has implemented processes through which
nationals of designated countries and their immediate family members
may request to come to the United States in a safe and orderly way. DHS
used emergency processing when implementing Uniting for Ukraine as well
as new parole processes for certain Cubans,\113\ Haitians,\114\
Nicaraguans,\115\ and Venezuelans.\116\ Under these processes,
qualified beneficiaries who are outside the United States and lack U.S.
entry documents may be considered, on a case-by-case basis, for
advanced authorization to travel and a temporary period of parole for
urgent humanitarian reasons or significant public benefit.
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\113\ 88 FR 1266 (Jan. 9, 2023); see also 88 FR 26329 (Apr. 28,
2023).
\114\ 88 FR 1243 (Jan. 9, 2023); see also 26 FR 327 (Apr. 28,
2023).
\115\ 88 FR 1255 (Jan. 9, 2023).
\116\ 87 FR 63507 (Oct. 19, 2023); see also 88 FR 1279 (Jan. 9,
2023).
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4. Family Reunification Parole Processes
DHS also used emergency processing when establishing new family
reunification parole (FRP) processes for certain Colombians,\117\
Ecuadorians,\118\ Salvadorans,\119\ Guatemalans,\120\ and Hondurans
\121\ and implementing procedural changes to the previously established
Cuban \122\ and Haitian \123\ Family Reunification Parole processes.
These FRP processes are available to certain petitioners who filed an
approved Form I-130, Petition for Alien Relative, on behalf of a
principal beneficiary who is a national of Colombia, Cuba, El Salvador,
Guatemala, Haiti, or Honduras, and their immediate family members.
These processes allow an eligible beneficiary to be considered, on a
case-by-case basis, for advanced authorization to travel and a
temporary period of parole for urgent humanitarian reasons or
significant public benefit.
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\117\ 88 FR 43591 (July 10, 2023).
\118\ 88 FR 78762 (Nov. 16, 2023).
\119\ 88 FR 43611 (July 10, 2023).
\120\ 88 FR 43581 (July 10, 2023).
\121\ 88 FR 43601 (July 10, 2023).
\122\ 88 FR 54639 (Aug. 11, 2023).
\123\ 88 FR 54635 (Aug. 11, 2023).
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B. Effects of Temporary or Discretionary Programs and Processes
As stated elsewhere, and in the proposed rule, Deferred Action for
Childhood Arrivals (DACA) and Temporary Protected Status (TPS) country
designations are both administrative exercises of discretion that may
be granted on a case-by-case basis for certain periods. See 88 FR 402,
447 (Jan. 4, 2023). DACA grants are subject to intermittent renewal,
extension, or termination at DHS's discretion. TPS country designations
must be periodically reviewed and are subject to termination if the
conditions for the designation no longer exist. Likewise, OAW, U4U, and
processes for Cubans, Haitians, Nicaraguans, and Venezuelans are
temporary processes established to address exigent circumstances. The
FRP processes require that the petitioner first receive an invitation
to be able to initiate the process. The invitation requirement allows
DHS to adjust the number of invitations issued based on the resources
available to process requests and to achieve desired policy objectives.
Given that these processes are temporary by definition or may be paused
at the discretion of DHS, USCIS excluded the associated costs and
workload from the fee review and did not propose to allocate overhead
and other fixed costs to these workloads.\124\
[[Page 6239]]
Excluding these initiatives or processes that are temporary from the
fee review mitigates an unnecessary revenue risk, by ensuring that
USCIS will have enough revenue to recover full cost regardless of DHS's
discretionary decision to continue or terminate these initiatives. This
allows DHS to maintain the integrity of its activity-based cost (ABC)
model, ensure recovery of full costs, and mitigate revenue risk from
unreliable sources. While the operational costs of adjudicating
requests associated with these policies are carefully considered on a
day-to-day basis, the proposed rule and this final rule exclude from
the ABC model the costs and revenue associated with these processes.
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\124\ USCIS has considered the number of immigration benefit
requests it will receive from noncitizens from Afghanistan who will
stay permanently and safely resettle in the United States over the
fee review period.
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C. Lawful Pathways Rule
DHS and the U.S. Department of Justice (DOJ) recently published a
final rule, Circumvention of Lawful Pathways. See 88 FR 31314 (May 16,
2023). Under the final rule, certain noncitizens who cross the
southwest land border or adjacent coastal borders without
authorization, and without having availed themselves of existing
lawful, safe, and orderly pathways are presumed ineligible for asylum
unless they meet certain limited exceptions. See id at 31449-52. The
rule is projected to increase USCIS costs for operating the asylum
program. See 88 FR 11704 (Feb. 23, 2023). While the costs of this rule
were not considered in the proposed rule, DHS believes that USCIS'
budget may be sufficient to cover these costs in the near term. Much of
the cost for the Circumvention of Lawful Pathways rule will occur
beyond the 2-year study cycle for the fee revenue required to be
generated by this rule. Future fee rules will use more recent
information and estimates, when available.
D. Premium Processing--Emergency Stopgap USCIS Stabilization Act
As explained in the proposed rule, on October 1, 2020, the
Continuing Appropriations Act, 2021, and Other Extensions Act
(Continuing Appropriations Act) was signed into law. Public Law 116-159
(Oct. 1, 2020). The Continuing Appropriations Act included the
Emergency Stopgap USCIS Stabilization Act (USCIS Stabilization Act),
which allows USCIS to establish and collect additional premium
processing fees and to use premium processing funds for expanded
purposes. See Public Law 116-159, secs. 4101 and 4102, 134 Stat. 739
(Oct. 1, 2020); 8 U.S.C. 1356(u). Then, on March 30, 2022, DHS
published a final rule, Implementation of the Emergency Stopgap USCIS
Stabilization Act, implementing part of the authority provided under
the USCIS Stabilization Act to offer premium processing for those
benefit requests made eligible for premium processing by section
4102(b) of that law. See 87 FR 18227 (premium processing rule).
The proposed rule did not include changes directly resulting from
the USCIS Stabilization Act or premium processing rule and stated that
DHS will consider including premium processing revenue and costs in the
final rule. See 88 FR 402, 419 (Jan. 4, 2023). In this final rule, DHS
has transferred $129.8 million in costs to premium processing because
of premium processing revenue projections. See section II.B of this
preamble.
E. Premium Processing Inflation Adjustment
On December 28, 2023, DHS published a final rule, Adjustment to
Premium Processing Fees, effective February 26, 2024, that increased
premium processing fees charged by USCIS to reflect the amount of
inflation from June 2021 through June 2023 according to the Consumer
Price Index for All Urban Consumers (CPI-U). 88 FR 89539 (Dec. 28,
2023). The adjustment increases premium processing fees from $1,500 to
$1,685, from $1,750 to $1,965, and from $2,500 to $2,805. 8 CFR 106.4.
The total projected revenue to be collected from the new premium
processing fees established by the final rule premium processing rule
is too attenuated to be considered for this rule without placing USCIS
at risk of revenue shortfalls if that revenue did not materialize.
However, as noted earlier, this final fee rule transfers additional
costs to premium processing revenue. Premium revenue will be considered
in future fee studies.
F. EB-5 Reform and Integrity Act of 2022 and Related Rules
As stated in the proposed rule, on March 15, 2022, the President
signed the EB-5 Reform and Integrity Act of 2022, which repealed the
Regional Center Pilot Program and authorized a new Regional Center
Program.\125\ See 88 FR 402, 420 (Jan. 4, 2023). (EB-5 stands for
Employment-Based Immigrant Visa, Fifth Preference.) The EB-5 Reform and
Integrity Act of 2022 requires DHS to conduct a fee study not later
than 1 year after the date of the enactment of this Act and, not later
than 60 days after the completion of the study, set fees for EB-5
program related immigration benefit requests at a level sufficient to
recover the costs of providing such services, and complete the
adjudications within certain time frames. See Public Law 117-103, sec.
106(b). DHS has begun the fee study required by the EB-5 Reform and
Integrity Act of 2022 and has initiated a working group to begin
drafting the rule. However, that effort is still in its early stages.
How the EB-5 Reform and Integrity Act of 2022 and the fee study it
requires relate to this rule and the fees it sets are explained in
section IV.G.2.b. of this preamble in responses to comments on those
fees and related polices.
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\125\ Div. BB of the Consolidated Appropriations Act, 2022,
Public Law 117-103.
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G. Modernizing H-1B Requirements, Providing Flexibility in the F-1
Program, and Program Improvements Affecting Other Nonimmigrant Workers
On October 23, 2023, DHS proposed to amend its regulations
governing H-1B specialty occupation workers. 88 FR 72870. The rule
proposed to modernize and improve the efficiency of the H-1B program by
amending several requirements for the subject nonimmigrant
classifications, including to improve the integrity of the H-1B
program. Id. Specifically, that rule proposes that USCIS would select
registrations by unique beneficiary rather than by individual
registration to reduce the potential for gaming the H-1B cap system and
make it more likely that each beneficiary would have the same chance of
being selected, regardless of how many registrations are submitted on
their behalf. If that proposal is finalized as proposed, the actual
number of H-1B Registrations may not be as high as projected in this
rule. For example, the proposed rule forecasted 273,990 H-1B
registrations. 88 FR 402, 437 (Jan. 4, 2023). The forecast for the
proposed rule was similar to the 274,237 total registrations in the FY
2021 cap year.\126\ This final rule revises the H-1B registrations
forecast to 424,400 based on more recent data, such as the total
registrations for the FY 2023 cap year. The effect of modernizing H-1B
requirements may result in a different H-1B registration volume than we
forecast here. If that occurs, DHS will address the resulting revenue
shortfall in a future fee rule, or in a separate rulemaking that
directly addresses the H-1B Registration Fee and the changes made by
the Modernizing rule, the H-1B registration process, and the need to
recover the costs of USCIS.
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\126\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, H-1B Electronic Registration Process, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process.
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[[Page 6240]]
H. Citizenship and Naturalization and Other Related Flexibilities
DHS expects to soon publish a notice that will propose amendments
of its regulations governing citizenship and naturalization.\127\ The
notice will propose changes to naturalization eligibility regulations
and other immigration benefit provisions that affect naturalization and
acquisition of citizenship, remove outdated provisions, and amend
provisions that are inconsistent with intervening laws. DHS has not
incorporated any changes in this final rule because the Citizenship and
Naturalization notice has not yet been adopted, and whether USCIS needs
to update form fees due to the changes would not be determined until
after implementation. Future fee rules will consider the effects of the
changes if the notice becomes final.
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\127\ See Office of Info. and Regulatory Affairs, Office of
Mgmt. and Budget, Exec. Office of the President, ``Fall 2023 Unified
Agenda of Planned Regulatory Actions,'' RIN 1615-AC80, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=1615-AC80
(last viewed Jan. 16, 2024).
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I. 9-11 Response and Biometric Entry-Exit Fee for H-1B and L-1
Nonimmigrant Workers (Pub. L. 114-113 Fees)
Congress requires the submission of an additional fee of $4,000 for
certain H-1B petitions and $4,500 for certain L-1A and L-1B petitions
in section 402(g) of Div. O of the Consolidated Appropriations Act,
2016 (Pub. L.114-113) enacted December 18, 2015.\128\ DHS proposed to
republish the regulatory text that existed immediately before the 2020
fee rule. See 88 FR 402, 516. DHS did not receive any comments on this
proposal. As such, this final rule republishes the proposed text for
these fees. See 8 CFR 106.2(c)(8) and (9). However, DHS is proposing to
address the 9-11 Response and Biometric Entry-Exit Fees for H-1B and L-
1 Nonimmigrant Workers language in a separate rulemaking in the
future.\129\
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\128\ Section 402(g) of Div. O of Public Law 114-113 added a new
section 411 to the Air Transportation Safety and System
Stabilization Act, 49 U.S.C. 40101 note. Section 411 provided that
the fees collected thereunder would be divided 50/50 between general
Treasury and a new ``9-11 Response and Biometric Exit Account,''
until deposits into the latter amounted to $1 billion, at which
point further collections would go only to general Treasury.
Deposits into the 9-11 account are available to DHS for a biometric
entry-exit screening system as described in 8 U.S.C. 1365b.
\129\ See Department of Homeland Security, Fall 2023 Regulatory
Agenda, 9-11 Response & Biometric Entry-Exit Fees for H-1B and L-1
Visas, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=1651-AB48 (last visited Dec. 20,
2023).
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IV. Response to Public Comments on the Proposed Rule
A. Summary of Comments on the Proposed Rule
DHS provided a 65-day comment period following publication of the
proposed rule. DHS received 7,973 public comment submissions in docket
USCIS-2021-0010 in response to the proposed rule. Of the 7,973
submissions, 5,417 were unique submissions, 2,393 were form letter
copies, 113 were duplicate submissions, 45 were not germane to the
rule, and 5 contained comments and requests that were entirely outside
of the scope of the rule. Most submissions \130\ were anonymous or from
individuals, schools or universities, advocacy groups, lawyers or law
firms, legal assistance providers, community or social organizations,
businesses, State and Federal elected officials, research
organizations, religious organizations, local governments or tribes,
unions, and business or trade associations. Some commenters expressed
total support for the proposed rule or supported one or more specific
provisions of the proposed rule without recommending changes. Most
commenters opposed the rule and expressed unqualified opposition or
opposition to one or more provisions without recommending changes. Many
commenters provided mixed comments of both support for and opposition
to various provisions of the proposed rule, provided general support
with suggested revisions, provided general opposition with suggested
revisions, or were unclear on whether the comment supported or opposed
the proposed rule.
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\130\ The term ``submission'' refers to an entire submission
letter submitted by a commenter. The term ``comments'' refers to
parts or excerpts of the submission based on subject matter.
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DHS reviewed all the public comments received in response to the
proposed rule and addressed relevant comments in this final rule,
grouped by subject area.
DHS also received several comments on subjects unrelated to the
proposed fees that are outside of the proposed rule's scope. DHS has
not individually responded to these comments but has summarized out of
scope comments and provided a general response in Section IV.I of this
preamble.
B. General Feedback on the Proposed Rule
1. General Support for the Proposed Rule
Comment: Several commenters expressed general support for the
proposed rule. Some commenters expressed general support for the rule
without providing additional rationale. Commenters expressed support
for the rule reasoning that the fee adjustments would:
Reduce processing times, increase staff, and reduce the
backlog or wait times for decisions.
Decrease fraud.
Reflect USCIS' adjudication burden and need for sufficient
financing to support effective processing of its vital services.
Reduce USCIS' funding and operational issues that are
caused by its status as a fee-funded agency.
A commenter urged USCIS to move forward with the proposed rule and
respond forcefully to organizations that fail to acknowledge USCIS
management has improved efficiencies despite lacking sufficient funds
to sustain operations. The commenter stated that USCIS is capable of
increasing efficiencies in a short period but said that it needs more
congressional funding. Another commenter suggested that USCIS further
increase its fees.
Response: DHS appreciates these commenters' support for the
proposed rule and did not make any changes in this final rule based on
them.
2. General Opposition to the Proposed Rule
Many commenters stated their general opposition to the proposed
fees, the magnitude of the fee adjustments, charging fees in general,
and specific proposed policy changes in the proposed rule. DHS
summarizes and responds to these public comments in the following
sections:
a. Immigration Policy Concerns
Comment: Many commenters opposed the proposed fee adjustments based
on the burdens they would create. Commenters stated that the proposed
fees would:
Be a financial obstacle or prohibitively expensive,
discourage people from immigrating to the United States, and be
detrimental for the United States and immigrant communities.
Encourage illegal immigration by creating significant
barriers to and discouraging legal immigration.
Strain resources with which immigrants can integrate into
the United States.
Response: DHS's fee rule is not intended to reduce or limit
immigration. These fee adjustments reflect DHS's best effort to balance
access, affordability, equity, and benefits to the national interest
while providing USCIS with the funding necessary to maintain adequate
[[Page 6241]]
services. Recognizing that fees impose a burden on fee-paying
requestors and their communities, DHS is shifting its fee-setting
approach away from sole emphasis on the beneficiary-pays principle
toward the historical balance between the beneficiary-pays and ability-
to-pay principles. See 88 FR 402, 424-26 (Jan. 4, 2023). Nonetheless,
USCIS filing fees are necessary to provide the resources required to
perform the work associated with such filings. When fees do not fully
recover costs, USCIS cannot maintain sufficient capacity to process
requests. Inadequate fees may cause significant delays in immigration
request processing which can burden requestors, as well as their
families, communities, and employers.
In this final rule, USCIS has made multiple adjustments to its
budget to limit the extent of fee increases. Ordinarily, any decrease
in the fee adjustments would require a decrease in USCIS' budget and a
commensurate decrease in service levels. Rather than decrease service
levels, in this final rule USCIS has shifted a portion of its budget
from IEFA non-premium revenue to the IEFA premium processing revenue,
in addition to current levels of premium processing in the overall
USCIS budget. USCIS has also revised staffing estimates based on
improved efficiency measures, which allowed a further reduction to the
budget. Through these adjustments, DHS seeks to recover the full cost
of the services provided by USCIS.
This final rule limits fee increases for several forms, including
the Form I-130, Petition for Alien Relative, Form I-485, Application to
Register Permanent Residence or Adjust Status, and Form I-765,
Application for Employment Authorization, to an inflation-based
increase. See Table 1. For reasons explained earlier in section II.C.
of this preamble, the final rule also creates lower fees for certain
small employers and nonprofits. Businesses with 25 or fewer employees
will pay a $300 Asylum Program Fee instead of the $600 fee that larger
businesses will pay, and nonprofits will pay no Asylum Program Fee. See
8 CFR 106.2(c)(13). In addition, many categories of Form I-129,
Petition for Nonimmigrant Worker, now allow for half-price fees for
businesses with 25 or fewer employees and nonprofits. See 8 CFR
106.2(a)(3)(ix); Table 1. The final rule also expands the number of
forms that qualify for fee exemptions. See 8 CFR 106.3(b); Table 5B.
Regarding integration concerns, the final rule increases the household
income threshold to 400 percent of the FPG to enable more
naturalization applicants to qualify for a reduced fee for Form N-400,
Application for Naturalization. See 8 CFR 106.2(b)(3)(ii). These
changes do not represent a change in fee policy or requirements. They
are a continuation of the discretion that DHS typically exercises in
setting USCIS fees. See, e.g., 81 FR 73292, 73296-73297 (Oct. 24,
2016); 75 FR 58962, 58969-58970 (Sept. 24, 2010).
In addition to these changes in the final rule, DHS reiterates the
steps it has taken to mitigate the burden of fee increases on fee-
paying requestors. DHS has maintained some current fees and limited the
increases for many others to levels at or below inflation. See Table 1.
DHS includes a separate Asylum Program Fee to mitigate the scope of fee
increases for individual requestors. See 8 CFR 106.2(c)(13); see also
88 FR 402, 451-454 (Jan. 4, 2023). For humanitarian immigration
categories, DHS has expanded the availability of fee exemptions and
waivers to ensure that the most vulnerable applicants are able to
access protection-based relief. See 8 CFR 106.3; Table 5B; preamble
sections IV.E. and IV.F. DHS is mindful that departures from the
standard USCIS fee-setting methodology result in lower fees for some
and higher fees for others. However, it believes that these fees
balance access, affordability, equity, and benefits to the national
interest while providing USCIS adequate funding.
DHS disagrees that the proposed fee increases are likely to
incentivize irregular migration because the financial costs and other
risks of irregular migration tend to be higher than USCIS fees,\131\
and the economic benefits of lawful migration outweigh USCIS fees.\132\
DHS believes that the consequences of not pursuing full cost recovery
(processing delays, backlogs, and otherwise inadequate services) may be
more likely to discourage lawful migration, since wait times may tend
to have a stronger influence than financial costs on one's decision to
pursue unlawful pathways of migration.\133\ DHS further notes that it
focuses fee exemptions and waivers on humanitarian and protection-based
immigration forms, where requestors are at a greater risk of pursuing
irregular forms of migration. See 8 CFR 106.3; Table 5B.
---------------------------------------------------------------------------
\131\ See, e.g., U.N. Office on Drugs & Crime, ``Smuggling of
Migrants: The Harsh Search for a Better Life,'' https://
www.unodc.org/toc/en/crimes/migrant-
smuggling.html#:~:text=The%20fees%20charged%20for%20smuggling,pay%20a
s%20much%20as%20%2410%2C000. (last visited Sept. 5, 2023) (noting
smuggling fees ranging from $2,000-$10,000 depending on point of
origin).
\132\ See, e.g., California Immigrant Data Portal, ``Median
Hourly Wage,'' available at https://immigrantdataca.org/indicators/median-hourly-wage (last visited Sept. 7, 2023) (noting that ``the
median hourly wage for naturalized immigrants was $24, compared to
$19 for lawful residents, and $13 for undocumented immigrants'').
\133\ See, e.g., David J. Bier, ```Why Don't They Just Get in
Line?' Barriers to Legal Immigration,'' Testimony, CATO Institute,
Apr. 28, 2021, https://www.cato.org/testimony/why-dont-they-just-get-line-barriers-legal-immigration (identifying wait times as a
primary driver of unlawful migration).
---------------------------------------------------------------------------
Comment: Other commenters stated that the proposed rule would:
Undermine U.S. national values.
Be anti-immigrant, ``tantamount to a threat to American
democracy,'' unfair, or unethical.
Unduly place the burden of funding USCIS on immigrants.
Isolate the United States internationally, reflect poorly
on Americans, harm U.S. relations with other countries, and lead to
other countries increasing their fees.
Response: DHS strongly disagrees that this fee rule represents a
departure from U.S. values or is anti-immigrant, unfair, or unethical.
DHS recognizes that increased fees create burdens for fee-paying
requestors and their communities. However, it would not be more fair,
ethical, pro-immigrant, or consistent with U.S. values to maintain
current fee levels if this results in decreases in USCIS productivity.
Because DHS does not receive congressional appropriations for the great
majority of its operations, DHS must charge fees for the services it
provides to ensure that those seeking to live and work in the United
States can efficiently receive their benefits. Since 1990, the INA has
specified that the government may set immigration adjudication and
naturalization fees at a level that will ensure full cost
recovery,\134\ and past fee rules have consistently followed this
approach.\135\ By shifting its fee-setting approach away from the
beneficiary-pays principle toward the historical balance of ability-to-
pay and beneficiary-pays principles, DHS has sought to reduce barriers
and promote accessibility to immigration benefits. See 88 FR 402, 424-
25 (Jan. 4, 2023). As noted in the prior response, DHS has limited the
increases in many forms and instituted new fee waivers and exemptions
to reduce financial barriers to U.S. immigration benefits.
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\134\ See Departments of Commerce, Justice, and State, The
Judiciary, and Related Agencies Appropriations Act, 1991, Public Law
101-515, 104 Stat 2101 (1990).
\135\ See 72 FR 4888, 4896 (Feb. 1, 2007); 75 FR 33446, 33472
(June 11, 2010); 81 FR 26904, 26905 (May 4, 2016); 88 FR 62280,
62282 (Nov. 14, 2019).
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DHS does not believe that this final fee schedule poses significant
consequences for foreign relations. Commenters failed to cite any
examples of other countries raising immigration fees or otherwise
retaliating in response
[[Page 6242]]
to fee increases by USCIS or the former Immigration and Naturalization
Services (INS). DHS notes that other countries regularly charge fees
for visas and other immigration benefits,\136\ and only one foreign
government entity submitted a comment on the proposed rule.\137\ Unlike
nonimmigrant visa fees set by the U.S. Department of State (DOS), the
principle of reciprocity does not factor into USCIS fees. Cf. INA sec.
281, 8 U.S.C. 1351; 9 FAM 403.8.
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\136\ See Duncan Madden, ``The World's Most Expensive Passports
and Visas,'' Forbes, July 10, 2023, available at https://www.forbes.com/sites/duncanmadden/2023/07/10/travel-expenses-the-cheapest-and-most-expensive-passports-and-visas/?sh=5e5de6ff6f1e
(last visited Sept. 5, 2023).
\137\ See Regulations.gov, Comment Submitted by ARTS, https://www.regulations.gov/comment/USCIS-2021-0010-7354.
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Comment: A commenter stated USCIS should terminate ``unlawful''
special parole programs, as the creation of these unauthorized and
unappropriated programs diverts agency resources from legitimate visa
programs, resulting in fee increases and increased delays for many
benefit requestors. The commenter stated that DHS should return to
interpreting parole authority on a case-by-case basis to enhance DHS's
ability to focus its resources on processing immigration benefits
Congress has authorized and increase access to such benefits without
unreasonable delays.
Response: DHS disagrees that the parole programs identified by this
commenter are unlawful and believes that the legal authority for those
programs has been adequately presented in their respective rules.\138\
As stated earlier, the special parole processes mentioned by the
commenter are necessary to address urgent humanitarian events and aid
in the United States' ongoing efforts to engage hemispheric partners to
increase their efforts to collaboratively manage and reduce irregular
migration that could have worsened without timely action by the United
States. See, e.g., 88 FR 1243 (Jan. 9, 2023); see also 88 FR 26327
(Apr. 28, 2023). DHS acknowledges that, apart from International
Entrepreneur Parole, the special parole processes require the use of
limited USCIS budget resources. However, the case-by-case parole into
the United States of noncitizens under special parole processes aids in
the United States' effort to deter irregular migration from those
countries by providing lawful, safe, orderly pathways to travel to the
United States. Id. Also, unlike many noncitizens who irregularly
migrate, noncitizens who are paroled into the United States through
these processes are immediately eligible to apply for employment
authorization throughout the duration of their parole period, allowing
them to support themselves and contribute to the U.S. economy through
labor, taxes, consumption of goods, and payment of rent and utilities
in their new U.S. communities.\139\
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\138\ See 88 FR 21694 (Apr. 11, 2023); 88 FR 1266 (Jan. 9,
2023); 88 FR 1243 (Jan. 9, 2023); 88 FR 1255 (Jan. 9, 2023); 88 FR
1279 (Jan. 9, 2023).
\139\ See generally, e.g., National Academies of Sciences,
Engineering, and Medicine, ``The Economic and Fiscal Consequences of
Immigration,'' (2017), https://nap.nationalacademies.org/catalog/23550/the-economic-and-fiscal-consequences-of-immigration; Chair
Cecilia Rouse et al., The White House Blog: ``The Economic Benefits
of Extending Permanent Legal Status to Unauthorized Immigrants,''
(Sept. 17, 2021) https://www.whitehouse.gov/cea/blog/2021/09/17/the-economic-benefits-of-extending-permanent-legal-status-to-unauthorized-immigrants/.
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As stated in the proposed rule, DHS excluded Form I-941,
Application for Entrepreneur Parole, from this rule. See 88 FR 402, 424
n.47. The fee for Form I-941 will remain at $1,200, the level
previously set to recover its anticipated processing costs to DHS and
will not impact fees or processing times for other immigration benefit
requests. 82 FR 5238, 5280 (Jan. 17, 2017).
b. Impact on Specific Benefit Categories
Comment: Multiple commenters stated that the proposed fees would be
discriminatory, disproportionately burdensome, or otherwise harmful
toward the following immigration categories:
Undocumented individuals.
Applicants pursuing legal residency and citizenship.
Nonimmigrants such as foreign artists.
Family-based immigration. Commenters stated that the
proposed rules would be a hindrance to family unity, and would have a
large impact on families and U.S. citizens sponsoring immigrant
relatives, children, partners, fianc[eacute]es, or spouses.
Vulnerable and humanitarian immigrants, including
refugees, survivors, and victims of crime escaping violence.
Response: DHS recognizes the burden that immigration fees may pose
for certain requestors. Nonetheless, USCIS filing fees are necessary to
provide the resources required to do the work associated with such
filings. When fees do not fully recover costs USCIS cannot maintain
sufficient capacity to process requests. Inadequate fees may cause
significant delays or other lapses in immigration request processing,
which can result in additional burdens to requestors.
In general, the fees in this final rule are set to ensure full cost
recovery for USCIS. With limited exceptions, as noted in the proposed
rule and this final rule, DHS establishes its fees at the level
estimated to represent the full cost of providing adjudication and
naturalization services, including the cost of relevant overhead and
similar services provided at no or reduced charge to asylum applicants
or other immigrants. This approach is consistent with DHS's legal
authorities. See INA sec. 286(m), 8 U.S.C. 1356(m). In this final rule,
USCIS reduced the fee review budget, as explained earlier in section
II.C of this preamble.
In certain instances, DHS establishes fees that do not represent
the estimated full cost of adjudication in the proposed rule. See 88 FR
402, 450-451. In many cases, this is a result of DHS's refocus on
balancing the beneficiary-pays principle with the ability-to-pay
principle, whereby DHS has reduced or limited fee increases where a
full cost increase would be particularly burdensome for requestors. By
limiting many of the final fees to an inflation-based adjustment of the
current fee, DHS addresses some of these comments.
Regarding individuals seeking to naturalize or obtain proof of
citizenship, DHS has maintained the fees for common forms like Form N-
400, Form N-336, Request for a Hearing on a Decision in Naturalization
Proceedings (Under Section 336 of the INA), and Form N-600, Application
for Certificate of Citizenship, at levels below full cost recovery (See
Table 1; 88 FR 402, 486 (Table 14), Jan. 4, 2023), and expanded the
availability of reduced fee N-400s, see 8 CFR 106.2(b)(3)(ii).
Regarding family-based residency, DHS has limited the increase for
common family-based forms such as Form I-130 and Forms I-129F, Petition
for Alien Fianc[eacute](e), to levels at or below inflation. See Table
1. Regarding artists and other employment-based nonimmigrants, the
final rule limits the fee increase for Form I-129s to a level below
inflation for many small-employer and nonprofit petitioners, see Table
1, eliminates the Asylum Program fee for nonprofit petitioners, and
halves the Asylum Program fee for small-employer petitioners, see 8 CFR
106.2(c)(13).
In addition, this final rule expands fee exemptions and fee waivers
for certain humanitarian categories including survivors, victims of
crime, and refugees. See 8 CFR 106.3; Table 5B; see also 88 FR 402,
459-482 (Jan. 4, 2023). The new exemptions created by this rule include
exemptions for T and U nonimmigrants, VAWA self-petitioners, Special
Immigrant Juveniles (SIJs), and other benefit requestors. 8 CFR
106.3(b). Also, the Director of USCIS may,
[[Page 6243]]
consistent with applicable law, authorize additional fee exemptions
when in the public interest, such as when necessary to address
incidents such as an earthquake, hurricane, or other natural disasters
affecting localized populations. See 8 CFR 106.3(c).
c. Impact on Specific Demographic Characteristics
Comment: Several commenters wrote that certain proposed fees are
discriminatory, disproportionately burdensome, or otherwise harmful to
people based on:
Race, ethnicity, skin color, national origin, country of
birth, or country of citizenship.
Gender.
Sexual orientation or gender identity.
Age.
Disability.
Language.
Response: DHS did not design this fee schedule with any intent to
deter requests from or discriminate against any group of people. The
final fees are set to ensure full cost recovery while accounting for
filers' ability to pay, irrespective of their membership in one of the
groups identified by the commenters. As stated in the proposed rule,
where DHS has determined that a fee in this rule may inequitably impact
those who may be less able to afford it, DHS sets the fees below the
ABC model output. See 88 FR 402, 426 (Jan. 4, 2023). In addition, we
codify the fee waiver eligibility guidance that took effect in 2010 and
expand fee exemptions for vulnerable or low-income populations, as
described elsewhere in this preamble.
Comment: Some commenters wrote that the proposed fees would be
particularly burdensome for low-income or economically disadvantaged
people. Several commenters stated that, due to low wages of many
immigrants, higher fees would create a high burden for benefit
requestors and contribute to their economic insecurity, forcing them to
choose between applications and other necessities. Commenters stated
that the proposed fees would create hardship for some applicants and
their families, threaten immigrants' ability to pay for rent, food, and
necessities, and potentially cause some to go into debt. Commenters
also stated that, to pay fees, low-income applicants may become victims
of predatory loan schemes that offer high interest loans. An advocacy
group expressed concern that increased fees could cause immigrants to
remain or become uninsured.
Response: DHS is aware of the potential impact of fee increases on
low-income and economically disadvantaged individuals and is
sympathetic to these concerns. As discussed in the proposed rule and
consistent with past practice, USCIS has limited fee adjustments for
certain benefit requests. DHS recognizes that immigration application
fees may be burdensome for these filers, and that those who choose to
finance application fees through debt may be responsible for additional
interest. With these types of concerns in mind, DHS has shifted its
fee-setting approach away from the beneficiary-pays principle that
guided the 2019/2020 fee rule and more toward the ability-to-pay
principle. See 88 FR 402, 424-26 (Jan. 4, 2023). To keep many common
forms affordable, DHS has kept their fees at or below full cost
recovery or the rate of inflation. See Table 1. The rule codifies
USCIS' guidance on fee waivers for individuals who are unable to pay.
See 8 CFR 106.3(a). It also expands the number of forms that are
eligible for fee exemptions and waivers, see Table 5B, and includes
several policy adjustments designed to make fee waivers more readily
accessible. See 88 FR 402, 458 (Jan. 4, 2023). For naturalization
applicants who do not meet the requirements for a full fee waiver, DHS
has made N-400 fee reductions more available by increasing the income
threshold to 400 percent of the FPG. See 8 CFR 106.2(b)(3)(ii). DHS
focuses fee exemptions on vulnerable populations and waiver
availability on those with an inability to pay. See 8 CFR 106.3; Table
5B. DHS recognizes that that there are many forms for which fee
exemptions or fee waivers are not available but notes that it is
limited by congressional expectation that many immigrants and
nonimmigrants would possess means of self-support. See INA sec.
212(a)(4), 8 U.S.C. 1182(a)(4). DHS believes that this rule
substantially mitigates many of commenters' concerns while ensuring
that USCIS can recover full costs and fund its ongoing operations. DHS
also recognizes that the immigration process can be complex, and that
benefit requestors may still risk becoming victims of scams or fraud.
We encourage requestors to use the information on the USCIS website to
avoid becoming victims of common scams, fraud, or misconduct.\140\
---------------------------------------------------------------------------
\140\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, ``Scams, Fraud, and Misconduct,'' available at
https://www.uscis.gov/scams-fraud-and-misconduct/scams-fraud-and-misconduct (last visited Sept. 25, 2023).
---------------------------------------------------------------------------
d. Impact Based on Geography
Comment: Several commenters stated that the proposed rule and
certain form fees would have a disproportionate effect on benefit
requestors and communities in various parts of the country, including:
Rural areas or small towns, where individuals may lack
access to technology.
High cost-of-living areas, where individuals are forced to
choose between meeting basic needs and pursuing immigration benefits.
Particular states and cities that have large immigrant
populations or high poverty rates, where immigrants have less access to
technology, or where nonprofits may be burdened by COVID-19 and recent
natural disasters.
Response: DHS recognizes that certain individuals may experience
more difficulty paying filing fees partly due to the area of the
country in which they live and that this may have secondary effects on
their communities. This rule is in no way intended to limit access to
immigration benefits based on geography. Like past rules, this fee rule
generally does not factor requestors' geographic locations in setting
fees. Geography is only one of many factors that affect an individual's
ability to pay, and geography may impact on individual's ability to pay
differently depending on their profession, family, and other factors.
For example, individuals living in high-cost areas may also benefit
from higher wages, whereas individuals living in low-cost areas may
face more limited job prospects. DHS considers it more effective to
accommodate filers' ability to pay in the manners described earlier in
this preamble. See section IV.E.3.a. of this preamble for a discussion
of using the U.S. Department of Housing and Urban Development's (HUD)
Mean Family Income (MFI), which accounts for the costs of living in
different parts of the country, to determine eligibility for fee
waivers.
e. Impact on Economy/Employers
Comment: Some commenters stated that raising immigration fees
would:
Hamper U.S. population growth and the country's ability to
innovate in technology and culture.
Deter workers.
Have negative effects on the labor market by discouraging
employers from hiring foreign workers.
Create problems for retail, agriculture, construction,
manufacturing, hospitality, and the labor pool in general.
Response: DHS disagrees that these fees will negatively affect the
labor
[[Page 6244]]
market or other sectors described in the comment. With previous fee
increases in 2010 and 2016, DHS has continued to see a steady increase
in filing and has not seen a reduction in filing based on fee
increases. It is possible that USCIS observes no price response to past
fee increases because the value of immigration benefits is greater than
the fees USCIS assesses to recover costs. DHS has no data that would
indicate the fees would limit employers' ability to hire foreign
workers or negatively impact the labor market. In fact, H-1B receipts
have grown by over 225,000 from FY 2010 through FY 2022. Growing demand
in the period immediately after the 2010 and 2016 fee increases reveals
that, in setting fees at levels to recover only USCIS costs, all
applicants enjoyed some cost savings or surplus relative to what the
immigration benefit was truly worth to them. USCIS has discussed
related issues in depth in the supplemental RIA (see Section 5: Price
Elasticity) and SEA. While DHS appreciates that an increase in prices
for immigration benefits affects some individuals' choices to pursue or
not pursue those benefits, DHS notes that demand may also decrease due
to declines in service quality when USCIS programs are not properly
funded. Lastly, DHS reiterates that this final rule lowers the Asylum
Program Fee and certain Form I-129 fees for small employers and
nonprofits. See 8 CFR 106.2(a)(3)(ix), (c)(13); Table 1. These changes
further mitigate any risk that these fees will negatively impact the
labor market or other sectors of the economy.
Comment: Multiple commenters stated that the proposed fees are
disproportionately burdensome, or otherwise harmful to the following
types of petitioners:
Smaller and midsized businesses and organizations, by
further increasing labor costs associated with hiring immigrants.
Nonprofits.
Religious organizations.
Response: DHS recognizes that the impacts that increased fees can
have on smaller and midsized firms, as well as nonprofit and religious
institutions. See Small Entity Analysis. However, DHS notes that these
organizations are also impacted by delayed processing times, backlogs,
and other lapses in service that result if USCIS' operations are not
adequately funded. Mindful of the difficulties that smaller and
midsized firms and nonprofits (including religious institutions) may
face, DHS has discounted the proposed fee increases of the requests
that many such entities submit in this final rule, as discussed in
section II.C of this preamble. For small-employer and nonprofit
petitioners, this final rule limits the fee increases for Form I-129.
See 8 CFR 106.2(a)(3); Table 1. In addition, the final rule reduces the
Asylum Program Fee by $300 for small employers and eliminates the
Asylum Program Fee for nonprofit petitioners. See 8 CFR 106.2(c)(13).
Comment: Commenters also stated that the proposed fees would be
harmful to nonprofit legal service providers and other organizations
that serve immigrant communities. A commenter specified that the
increased fees would result in case-handling delays for their
immigration clients, which will divert resources from other casework
and advocacy priorities.
Response: DHS recognizes the value of legal service providers and
other groups that assist individuals in navigating its regulations and
forms, and that fee increases can impact their ability to serve their
clients. However, DHS believes that inadequate funding for USCIS
(resulting in processing delays, backlogs, and otherwise inadequate
service) would also impact these organizations' ability to deliver
timely and effective legal services for their clients. As discussed
earlier in this rule, the final rule contains several provisions that
make immigration fees more affordable to the immigrant communities
(often indigent and disadvantaged) that nonprofits serve.
Comment: Multiple commenters stated that the proposed rules would
exacerbate the negative economic effects of:
The COVID-19 pandemic (e.g., job loss, inability to pay
rent, labor shortages).
Inflation.
The war in Ukraine.
Response: DHS acknowledges that the last few years have been
difficult on immigrant communities due to the COVID-19 pandemic,
inflation, and various international crises including the war in
Ukraine. However, these events have impacted USCIS' financial stability
as well.\141\ Without increased fees to adequately fund services, USCIS
will inevitably experience decreases in the quality of its services,
and it will be in a substantially worse position to manage future
crises of these sorts when they arise. DHS notes that, during the COVID
pandemic, USCIS implemented many policy changes to accommodate
requestors.\142\ Also, the fee increases in this final rule will help
fund USCIS' Uniting for Ukraine program, as well as other zero-fee or
fee-exempt programs that address international, humanitarian crises,
including refugee and asylum processing and DHS's FRP processes.
Applicants continue to have fee waivers available for specific forms
where they can demonstrate an inability to pay. See 8 CFR 106.3(a).
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\141\ 88 FR 402, 426-429 (Jan. 4, 2023); see also U.S.
Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security,
``Uniting for Ukraine,'' https://www.uscis.gov/ukraine (last updated
Sept. 20, 2023); U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, ``I-134A, Online Request to be a Supporter and
Declaration of Financial Support,'' https://www.uscis.gov/i-134a
(last updated Nov. 15, 2023) ($0 filing fee).
\142\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, ``USCIS Response to COVID-19,'' https://www.uscis.gov/archive/uscis-response-to-covid-19 (last updated Mar.
6, 2023).
---------------------------------------------------------------------------
Comment: A commenter stated that the increased fees further enhance
the control that corporations and employers have over foreign workers,
as any worker would require their employer's assistance to be able to
afford the fees.
Response: USCIS disagrees with the comment's premise that the
beneficiary's ability to pay is a relevant factor in determining the
appropriate fee for most employment-based visa petitions. In general,
for employment-based petitions such as Form I-129 and some Form I-140s,
it is the employing petitioner's decision whether to file a petition on
any beneficiary's behalf, and the petitioner is generally expected to
pay the fees associated with the filing of the petition. In some
instances, the petitioning employer is required to pay certain fees
and/or is precluded from charging the beneficiary certain fees.\143\ To
the degree that the commenter is concerned that employers may place
abusive conditions on their decision to file employment-based visa
petitions, DHS encourages foreign workers to report any illegal
practices. DHS and USCIS are committed to helping protect the rights of
foreign workers in the United States.\144\
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\143\ For example, employers are prohibited from charging job
placement fees as a condition of employment for H-2 nonimmigrants,
and H-2B beneficiaries are not permitted to pay any H-2B filing or
Fraud Prevention and Detection fees. See 8 CFR 214.2(h)(5)(xi)(A),
(6)(i)(B)-(D). Also, in some contexts, the employer is not
authorized to deduct certain employer-related expenses, such as
those related to preparation and filing of the Form I-129 petition,
from the beneficiary's compensation. See, e.g., 20 CFR 655.731(c)(9)
(prohibiting H-1B petitioning employers from making certain wage
deductions, such as deductions for employer-related fees associated
with the preparation and filing of an H-1B petition). Finally, some
fees are required by statute to be paid by the petitioning employer.
See section 214(c)(9) of the INA, 8 U.S.C. 1184(c)(9) (imposing a
fee on certain employers filing H-1B petitions).
\144\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, ``Report Labor Abuses,'' https://www.uscis.gov/working-in-the-united-states/information-for-employers-and-employees/report-labor-abuses (last updated Mar. 13, 2023).
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[[Page 6245]]
f. Other General/Mixed Feedback on the Rule
Comment: Multiple commenters expressed concerns regarding the
timing of the rule. Some commenters suggested delaying the increase
given the current economic situation. One commenter asked how the
proposal would affect current immigration benefit requests. Another
suggested that the fees only apply to those who have not yet initiated
any immigration process to accommodate individuals currently affected
by USCIS' backlog. Other commenters stated DHS should give 4 to 6
months' notice before the new fees go into effect.
Response: DHS declines to delay effectiveness of this rule beyond
the 60 days announced in the proposed rule. Because the proposed rule
was published on January 4, 2023, DHS believes that interested parties
will have received adequate notice of the forthcoming changes before
their effective date. The new fees apply to any immigration benefit
request postmarked on or after the effective date of this rule and do
not affect any benefit requests that have already been submitted.\145\
USCIS may accept the prior fee for benefit requests postmarked before
the new fees take effect.
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\145\ USCIS permits FedEx, UPS, DHL and USPS to deliver paper
benefit requests. Generally, USCIS records the receipt date as the
actual date it physically receives a request at the correct filing
location. 8 CFR 103.2(a)(7). However, when USCIS issues new fees, it
generally considers the postmark on the package as the date the
request was filed or submitted. The shipping date printed on the
shipping label will be considered the postmark date. If there is no
shipping date on the label, USCIS considers the date you printed the
label to be the postmark date. If the label does not have a shipping
date or print date, USCIS will assume that the postmark date is 10
days before it received the package.
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While the fees in this final rule generally affect customers who
apply on or after the effective date, there are some special
circumstances for Forms I-485, Application to Register Permanent
Residence or Adjust Status, I-765, Application for Employment
Authorization, and I-131, Application for Travel Document, as explained
in the proposed rule. See 88 FR 402, 492 (Jan. 4, 2023). Specifically,
individuals who filed a Form I-485 after July 30, 2007, (the FY 2008/
2009 fee rule) and before this final rule takes effect will continue to
be able to file Form I-765 and Form I-131 without additional fees while
their Form I-485 is pending. See 8 CFR 106.2(a)(7)(iv), (44)(iv)(A).
Those who filed Form I-485 before the FY 2008/2009 fee rule, or on or
after the effective date of this final rule, would pay separate fees
for the interim benefits. The final rule implements a reduced fee of
$260 for those applicants that must pay a fee for Form I-765 while
their adjustment of status application is pending. See 8 CFR
106.2(a)(44)(i). Applicants for Form I-131 will pay the full fee of
$630. See 8 CFR 106.2(a)(7)(iii).
DHS disagrees with the commenter's recommendation to apply the new
fees only to those who have not initiated any immigration processes
before the rule's effective date. While DHS appreciates the commenter's
concerns regarding backlogs, the commenter's proposal could apply
indefinitely for individuals who choose to delay certain steps in the
immigration process, such as adjusting from nonimmigrant to LPR status
or filing for naturalization. Furthermore, DHS calculated the fees
assuming that they would generally apply to all forms filed after the
rule's effective date, so the commenter's proposal would require
further fee increases to account for the numerous filers who would
continue to pay the prior fees.
As for upcoming filing periods for petitions that are subject to
annual numerical limitations, the 60-day effective date of this rule
should provide a sufficient period for petitioners to adjust to the new
fees and form versions. The H-1B cap petition filing period generally
begins on April 1 of each year. USCIS has not announced the specific H-
1B registration dates for FY 2025, but it is expected to be a roughly
14-day period in early- to mid-March. Neither date is affected by this
rule.
C. Basis for the Fee Review
DHS received comments on the legal authority or rationale of the
rule, the need for it, and its general approach, which we address in
the following subsections.
Comment: Regarding full cost recovery and use of the ``ability to
pay'' and ``beneficiary pays'' principles, commenters stated:
The proposed rule violates 8 U.S.C. 1356(m) by waiving
fees for some beneficiaries and shifting the cost of those services to
other beneficiaries.
Only Congress, not DHS, has the legal authority to create
waivers and exemptions.
Congress did not authorize USCIS to raise fees by 40
percent, update fees based on inflation, or shift the cost of programs.
Federal law and policy do not require USCIS to recover
full costs through fees, and these costs should not be the only basis
for determining fees.
A commenter disagreed with the suppression of fees for
benefits not explicitly exempted by law, and suggested adjusting fees
based on the actual cost of the service and providing only those
exemptions and waivers that are statutorily mandated.
USCIS has arbitrarily decided which applicants bear the
fee burden.
USCIS suppresses fees for certain immigration benefits
based on political preference.
However, other commenters stated:
USCIS must consider the public good that arises from
applicants receiving immigration benefits and whether they are
affordable for applicants when setting fees.
Disregarding the ability-to-pay considerations would be
``arbitrary and capricious'' under the Administrative Procedure Act
(APA).
Other commenters wrote that USCIS' proposed ability-to-pay model
violates the CFO Act, 31 U.S.C. 9701(b), which requires fees charged by
agencies to be uniform and based on actual costs. They stated that
adjusting fees based on ability-to-pay violates the statute. They
stated that DHS lacks the legal discretion to provide discounts and
shift costs except when explicitly directed by Congress.
Other comments on the fee-setting approach supported USCIS'
proposal to shift away from the beneficiary-pays principle toward an
ability-to-pay principle balanced with a beneficiary-pays approach.
Some stated that USCIS should further shift funding toward immigration
services for lower income applicants who do not qualify for fee waivers
or exemptions but nevertheless are unable to afford fee increases.
Others stated that USCIS did not strike an appropriate balance between
ability-to-pay and the beneficiary-pays principles. Some commenters
stated USCIS should rely even more heavily on the beneficiary-pays
model. For example, one stated that fees should be based on the cost of
the provided service, and costs for subsidized services should be
spread across all fee-paying beneficiaries.
Response: As stated in the proposed rule, DHS is permitted but not
required by law to recover all USCIS operating costs through fees. DHS
has broad discretion to set USCIS fees to recover costs, and we
generally adhere to longstanding guidance in setting fees. The U.S.
Government Accountability Office (GAO) guidance for federal user fees,
like USCIS immigration benefit request fees, states that agencies must
balance efficiency, equity, revenue
[[Page 6246]]
adequacy, and administrative burden.\146\ When discussing equity, GAO
explains two different ways to ensure everyone pays their fair share.
Id. As described by the GAO, under the beneficiary-pays principle, the
beneficiaries of a service pay for the cost of providing that service.
Id. Under the ability-to-pay principle, those who are more capable of
bearing the burden of fees pay more for the service than those with
less ability to pay. Id. A GAO audit of the 2007 fee rule found that
the rule clearly described the trade-off between these two
principles.\147\
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\146\ See GAO, ``Federal User Fees: A Design Guide'' (May 29,
2008), https://www.gao.gov/products/GAO-08-386SP, at 7-12.
\147\ See GAO, ``Federal User Fees: Additional Analyses and
Timely Reviews Could Improve Immigration and Naturalization User Fee
Design and USCIS Operations'' (Jan. 2009), https://www.gao.gov/assets/gao-09-180.pdf, at 12-15.
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In prior years, USCIS fees have given significant weight to the
ability-to-pay principle. IEFA fee exemptions, fee waivers, and reduced
fees for low-income households adhere to this principle. Applicants,
petitioners, and requestors who pay a fee cover the cost of processing
requests that are fee exempt, fee-waived, or fee-reduced. For example,
if only 50 percent of a benefit request workload is fee-paying, then
those who pay the fee will pay twice as much as they would if everyone
paid the fee. By paying twice as much, they pay for their benefit
request and the cost of the same benefit request that someone else did
not pay for. See 84 FR 62280, 62298 (Nov. 14, 2019). As we noted in the
proposed rule, DHS appreciates that application of the ability-to-pay
principle in immigration benefit fees may appear arbitrary because it
results in certain fee payers funding the costs of USCIS-administered
programs to which they receive no direct benefit. 88 FR 453. However,
DHS determined that the fees did not result in a significant impact on
a substantial number of small entities who file a request with USCIS.
Id.
The final rule reverses some aspects of the 2020 fee rule. See 88
FR 402, 424-426 (Jan. 4, 2023). One change is a return to focusing fee-
setting away from the beneficiary-pays principle back toward the
historical balance between the beneficiary-pays and ability-to-pay
principles. See 88 FR 402, 425 (Jan. 4, 2023). Under the ability-to-pay
principle, those who are more capable of bearing the burden of fees
should pay more for the service than those with less ability to pay.
IEFA fee exemptions, fee waivers, and reduced fees for low-income
households adhere to this principle. Requestors who pay a fee cover the
cost of processing requests that are fee exempt, waived, or reduced.
This approach is consistent with previous fee rules, comments on the
2020 fee rule, current injunctions, Executive Order (E.O.) 14012,\148\
and public feedback. See 88 FR 402, 425-426 (Jan. 4, 2023).
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\148\ Restoring Faith in Our Legal Immigration Systems and
Strengthening Integration and Inclusion Efforts for New Americans,
86 FR 8277 (Feb. 5, 2021).
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DHS is not publishing this rule or setting USCIS fees under the
authority of 31 U.S.C. 9701(b).\149\ While the Independent Offices
Appropriations Act (IOAA), codified at 31 U.S.C. 9701, grants broad
authority to Federal agencies to assess user fees, the fees collected
under that law are deposited in the general fund of the U.S. Treasury
and are not directly available to the agency. USCIS fees are not
required to be tied to the costs or value of services provided, and the
revenue from the IEFA fees are available to USCIS until expended and
are not deposited in the general fund of the U.S. Treasury. As
explained in the proposed rule, ``In that regard, in INA sec. 286(m), 8
U.S.C. 1356(m), Congress imposed on DHS an additional obligation--to
recover the full cost of USCIS operations--over and above the advice in
OMB Circular A-25 concerning the direct correlation or connection
between costs and fees.'' 88 FR 402, 418 (Jan. 4, 2023). In 2010 DHS
also stated in a fee rule that, ``Additional values are considered in
setting IEFA fees that could not be considered in setting fees under
the IOAA.'' 75 FR 33449 (June 11, 2010) (internal cites omitted). The
2016 USCIS fee schedule proposed rule also described DHS latitude to
set USCIS fees and such fees not being limited to the costs of the
service. See 81 FR 26906-26907.
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\149\ The statute cited by the commenters also permits discounts
and shifting costs based on considerations of public policy or
interests served and other relevant facts and does not require that
fees charged by agencies be uniform and not deviate from actual
costs. See 31 U.S.C. 9701(b)(2)(C)-(D).
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As for DHS using the ability-to-pay or beneficiary-pays principles
in setting USCIS fees, INA sec. 286(m), 8 U.S.C. 1356(m), does not
prescribe a precise framework, methodology, or philosophy for DHS to
follow in setting USCIS fees, except to recover costs. DHS endeavors to
set fees in a manner that is rational, fair, and based on the
recommendations of fee setting experts. To that end, DHS generally
adheres to OMB Circular A-25 and has followed the Activity-Based
Costing (ABC) method. DHS has also considered the recommendations of
the GAO, as described earlier.
DHS is authorized to recover the full cost of immigration
adjudication and naturalization services, including similar services
provided without charge to asylum applicants or other immigrants,
through IEFA fees. See INA sec. 286(m), 8 U.S.C. 1356(m). There is a
long history of using the ability-to-pay principle in USCIS fee-
setting, as explained in the proposed rule. See 88 FR 402, 424-426
(Jan. 4, 2023). Other fee rules did not always use the term ability-to-
pay but it has been a part of DHS and fee rules for a long time. For
example, USCIS grants fee waivers based on demonstrated inability to
pay, which is based on the ability-to-pay principle. See 8 CFR 103.7(c)
(Oct. 1, 2020). In this final rule, DHS provides more fee exemptions,
increases the income level for the reduced fee for Form N-400,
Application for Naturalization, provides discounts for Form I-129,
Petition for Nonimmigrant Worker, fees and the Asylum Program Fee, and
exempts nonprofits from the Asylum Program Fee, all based on the
ability-to-pay principle. See new 8 CFR 106.1(f), 106.2(a)(3), and
106(c)(13). Nothing in the DHS fee setting statute precludes DHS from
providing discounts and shifting costs in such a manner.
Comment: DHS summarizes comments regarding the funding for the
Fraud Detection and National Security Directorate (FDNS) as follows:
General support for USCIS improving service levels and
deterring fraud for nonimmigrant benefits.
FDNS funding violates fiscal law principles and the APA.
FDNS activities were delegated to Immigration and Customs
Enforcement (ICE) and funded by specific congressional appropriations.
Revenue should be used solely for adjudications and not
for investigation functions more appropriate for ICE and U.S. Customs
and Border Protection (CBP).
Appropriated funding for ICE has increased by 150 percent
while funding for immigration services has only increased modestly.
While Congress gave USCIS limited investigative
responsibilities when it created FDNS, its mission has expanded without
statutory authority.
Moving enforcement functions out of USCIS and into ICE and
CBP would allow USCIS to redirect FDNS expenses into its core
adjudicatory functions, improving efficiency, and reducing proposed fee
increases.
FDNS could be more efficient, for example, by curtailing
frivolous referrals.
[[Page 6247]]
Most FDNS cases and investigations involve already
adjudicated petitions, resulting in adjudicating H-1B petitions again.
Requested clarification of whether administrative site
visits that arise from premium processing cases are paid out of the
general budget or the premium processing budget.
Response: USCIS appreciates the general support from the commenters
who favored improving service levels and deterring fraud for
nonimmigrant benefits. USCIS manages three fee accounts: (1) The IEFA
(which includes premium processing revenues); (2) The Fraud Prevention
and Detection Account, INA secs. 214(c)(12)-(13), 286(v), 8 U.S.C.
1184(c)(12)-(13), 1356(v); and (3) The H-1B Nonimmigrant Petitioner
Account, INA secs. 214(c)(9), (11), 286(s), 8 U.S.C. 1184(c)(9), (11),
1356(s). The Fraud Prevention and Detection Account and the H-1B
Nonimmigrant Petitioner Account are funded by statutorily set fees and
divided among USCIS (for fraud detection and prevention), the National
Science Foundation, and the Department of Labor (DOL). DHS does not
have authority to adjust fees for these accounts; therefore, DHS cannot
increase the fees to meet changing needs or costs. DHS interprets 8
U.S.C. 1356(v)(2)(B) as providing supplemental funding to cover
activities related to fraud prevention and detection and not
prescribing that only those funds may be used for that purpose. FDNS is
funded from both the IEFA and the Fraud Prevention and Detection
Account. The fees deposited in the Fraud Prevention and Detection
Account that are fixed by statute are insufficient to cover the full
costs of FDNS.
DHS disagrees that ensuring a petitioner is compliant with the
terms and conditions of their petition through site visits or other
FDNS workload is frivolous, a second adjudication, or duplicated by
other DHS components. FDNS's work does not fall into ``intelligence''
and/or ``investigations'' work that the INA assigned to ICE. The
Homeland Security Act of 2002 granted the Secretary of Homeland
Security the authority to administer and enforce provisions of the INA,
as amended, INA sec 101, 8 U.S.C. 1101 et seq. The Secretary, in
Homeland Security Delegation No. 0150.1, delegated certain authorities
to USCIS. One of many authorities delegated to USCIS in administering
and enforcing immigration laws was the authority to ``investigate
alleged civil and criminal violations of the immigration laws,
including but not limited to alleged fraud with respect to applications
or determinations within the USCIS and make recommendations for
prosecutions, or other appropriate action when deemed advisable.''
FDNS's activities fall squarely within this delegation. FDNS was
established in 2004 in response to a congressional recommendation to
establish an organization ``responsible for developing, implementing,
directing, and overseeing the joint USCIS-Immigration and Customs
Enforcement (ICE) anti-fraud initiative and conducting law enforcement/
background checks on every applicant, beneficiary, and petitioner
before granting immigration benefits.'' \150\ FDNS fulfills the USCIS
mission of enhancing both national security and the integrity of the
legal immigration system by: (1) identifying threats to national
security and public safety posed by those seeking immigration benefits;
(2) detecting, pursuing, and deterring immigration benefit fraud; (3)
identifying and removing systemic vulnerabilities in the process of the
legal immigration system; and (4) acting as USCIS' primary conduit for
information sharing and collaboration with other governmental agencies.
FDNS also oversees a strategy to promote a balanced operation that
distinguishes USCIS' administrative authority, responsibility, and
jurisdiction from ICE's criminal investigative authority. The
Secretary, in Homeland Security Delegation No. 0150.1, delegated
several relevant authorities to USCIS, including the following:
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\150\ See Conference Report to accompany H.R. 4567 [Report 108-
774], ``Making Appropriations for the Department of Homeland
Security for the Fiscal Year Ending September 30, 2005,'' p. 74,
available at http://www.gpo.gov/fdsys/pkg/CRPT-108hrpt774/pdf/CRPT-108hrpt774.pdf.
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Authority under section 103(a)(1) of the INA, as amended,
8 U.S.C. 1103(a)(1), to administer the immigration laws (as defined in
section 101(a)(17) of the INA).
Authority to investigate alleged civil and criminal
violations of the immigration laws, including but not limited to
alleged fraud with respect to applications or determinations within the
BCIS and make recommendations for prosecutions, or other appropriate
action when deemed advisable.
Authority to register and fingerprint aliens in the United
States, and exercise other functions relating to registration and
change of address, as provided by sections 262-266 of the INA, 8 U.S.C.
1302-06.
Authority to place noncitizens in removal proceeding by
issuance of a Notice to Appear, and to cancel such Notice before
jurisdiction vests with the Executive Office for Immigration Review of
the Department of Justice (EOIR).
Authority to approve bonds issued under the immigration
laws, to determine whether such bonds have been breached, and take
appropriate action to protect the interests of the United States with
respect to such bonds.
Authority to interrogate noncitizens and issue subpoenas,
administer oaths, take and consider evidence, and fingerprint and
photograph noncitizens under section 287(a), (b), and (f) of the INA, 8
U.S.C. 1357, and under section 235(d) of the INA, 8 U.S.C. 1225(d).
Authority under the immigration laws, including but not
limited to section 310 and 341 of the INA (8 U.S.C. 1421 and 1452), to
grant applications for naturalization and certificates of citizenship
(and revoke such naturalization), including administration of oaths,
issuance of certificates, provision of citizenship materials and
services to public schools to prepare naturalization candidates,
supervision of courts designated under section 310 of the INA to
administer oaths, and any other rights and responsibilities relating to
the naturalization or citizenship of noncitizens.
Authority under the immigration laws, including but not
limited to sections 204 and 214 of the INA (8 U.S.C. 1154 and 1184), to
accept and adjudicate nonimmigrant and immigrant visa petitions
(whether family based, employment-based, or other), including
collection of appropriate fees, conduct of interviews, and appellate
review of the BCIS decisions that do not fall within the jurisdiction
of EOIR.
Authority to investigate suspected fraud by Regional
Center and related entities and to take other actions to ensure the
integrity of the Immigrant Investor (EB-5) Program.
Authority under immigration laws to extend and change
nonimmigrant status and to adjust the status of noncitizens to lawful
residents (on a temporary or permanent basis) and to revoke such
status, including determination of admissibility of noncitizens,
authority to grant waivers of inadmissibility and permission to reapply
for entry, and authority to conduct interviews (or waive interviews)
regarding an alien's eligibility for an immigration benefit.
In 2017, the Secretary, in Homeland Security Delegation No. 15002,
delegated the following certain law enforcement authorities to USCIS:
[[Page 6248]]
In matters under the jurisdiction of USCIS, to protect the
national security and public safety, to conduct law enforcement
activities, including accessing internet and publicly available social
media content using a fictitious account or identity, provided that
such activities shall only be conducted by properly trained and
authorized officers, and in a manner consistent with the Reservations
set forth in DHS Delegation Number 0150.1 and consistent with the
Department's obligations to protect privacy and civil rights and civil
liberties.
Regarding the Administrative Site Visit and Verification Program
(ASVVP), DHS explained in the proposed rule how USCIS collects
information on the costs associated with ASVVP and assigns the distinct
costs for these site visits to Forms I-129, I-360, Petition for
Amerasian, Widow(er), or Special Immigrant, and I-829, Petition by
Investor to Remove Conditions on Permanent Resident Status. See 88 FR
402, 496 (Jan. 4, 2023). Those costs are not paid directly from premium
processing revenue.
Therefore, DHS has determined that the commenters misunderstand the
nature of FDNS in USCIS. FDNS efforts are integral to determining an
applicant's eligibility for a benefit, and to maintain the integrity of
the immigration system. DHS makes no changes to these final fees as a
result.
1. Background and Fee Review History
Comment: Many commenters requested that DHS formally withdraw the
previously enjoined 2020 fee rule to ensure that USCIS fees and
policies would default to the current fee schedule rather than the 2020
fee structure, should the proposed rule be found unlawful. Many
commenters stated that USCIS should sever the 2020 fee rule from the
remainder of the currently proposed rule to not jeopardize the
withdrawal. Other commenters requested that DHS formally withdraw the
2020 fee rule, reasoning that the current proposal reflects a
considered policy judgment on the part of USCIS that those features of
the 2020 Fee Schedule are undesirable as a policy matter and are
inconsistent with the goals of Federal immigration laws.
Response: DHS understands the concerns of the commenters because
the fees in the 2020 fee rule have been codified for at least 2 years.
However, as explained in the proposed rule, DHS is operating under two
preliminary injunctions related to the 2020 fee rule. See 88 FR 402,
420 (Jan. 4, 2023). DHS continues to comply with the terms of those
orders and is not enforcing the regulatory changes set out in the 2020
fee rule. There is also a separate injunction related to fee waiver
changes in 2019. Id. USCIS continues to accept the fees that were in
place before October 2, 2020, and to follow the fee waiver guidance in
place before October 25, 2019. DHS and the parties in Immigrant Legal
Resource Center v. Wolf, NWIRP, City of Seattle, and the related cases
agreed to, and the courts have approved, a stay of those cases while
the agency undertook this fee review and prepared the proposed rule.
These rulings did not vacate the 2020 fee rule as having been codified
in contravention of the law; they only preliminarily enjoin them. Thus,
to remove the 2020 fees from the Code of Federal Regulations, DHS must
engage in notice and comment rulemaking. Because, as stated in this
rule, DHS needs a new USCIS fee schedule forthwith, we have determined
that it was more efficient to focus on replacing and revising the 2020
fee regulations than to expend the additional effort required to revert
the 2020 fees back to the October 1, 2020, fees in a separate
rulemaking. DHS makes no changes to the rule based on these comments.
Comment: Commenters stated that USCIS' pattern of doubling the
percentage increase of previous rules in each subsequent fee rule is
not sustainable.\151\ They stated that fees have already been raised
enough and there should be a ceiling to USCIS' previous, current, or
proposed fee structures. One commenter stated that USCIS filing fees
continue to increase over time and there is no stopgap or ceiling in
mind to maintain the affordability of these benefits.
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\151\ One commenter compared the weighted average increase in
the proposed rule with prior fee rules (in 2010 and 2016) and stated
that these double every fee rule.
---------------------------------------------------------------------------
Response: DHS examined each fee in the proposed rule and the
proposed fees represent DHS's best effort to balance access,
affordability, equity, and the national interest while providing USCIS
with the funding necessary to maintain adequate services. As the cost
of employees, services, buildings, and supplies increase, so must our
fees. However, several public comments stated that the proposed fee
increases greatly exceeded the rate of inflation, and others wrote that
they could understand the need for USCIS to keep up with
inflation.\152\ After considering the applicable comments, DHS has
decided to reduce many fees in this rule from what were proposed and
adopt the recommendations of commenters to increase the current fees
only by the amount of inflation since the date those fees were
established.
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\152\ Notwithstanding these comments, as discussed later in this
preamble, other commenters wrote that they opposed DHS codifying
authority to adjust fees based on the amount of inflation as
measured by the difference in the CPI-U. 8 CFR 106.2(d).
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As stated in this rule and the proposed rule, DHS has generally
adhered to ABC and cost reallocation to determine USCIS fees and has
not adjusted IEFA non-premium fees by inflation since 2005. See
Adjustment of the Immigration Benefit Application Fee Schedule, 70 FR
56182 (Sept. 26, 2005). After considering public comments, the amount
inflation since the FY 2016/2017 fee rule, and the size of the fee
increases, DHS has decided that adjusting certain fees by the rate of
inflation strikes a balance between the need to increase revenue to
recover USCIS costs and maintain affordability for some immigration
benefit requests.\153\
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\153\ DHS used June 2023 as the end date for the period of
inflation to be consistent with the 2023 premium processing fee
inflation adjustments. 88 FR 88 FR 89539 (Dec. 28, 2023). DHS
acknowledges that inflation will likely change from the June 2023
CPI-U before the fees in this rule take effect. The time and effort
required to calculate the fees for this rule, draft comment
responses, prepare supporting documents, perform the regulatory
impact analysis, small entity impact analysis, and clear the rule
through the necessary channels requires that a reasonable endpoint
be selected on which to base the required calculations and move the
final rule forward without continuous updates.
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2. Fee-Setting Approach
Comment: A commenter stated that recovering costs should not
include USCIS having a ``carryover balance'' that exceeded the revenue
necessary to adjudicate petitions.
Response: USCIS is primarily fee-funded, which means it must use
carryover, or the unobligated or unexpended fee revenue accumulated
from previous fiscal years, to continue operating at the beginning of
each fiscal year or when costs otherwise exceed revenue. The INA
authorizes DHS to set fees at a level to recover ``the full costs'' of
providing ``all'' ``adjudication and naturalization services,'' and
``the administration of the fees collected.'' 8 U.S.C. 1356(m). Many
USCIS administered immigration benefit requests, such as H-2B and H-1B
petitions, see significant seasonal fluctuations in filings, which can
result in seasonal fluctuations in USCIS revenue and spending. As GAO
acknowledges, fee-funded agencies may need to designate funds as
operating reserves to weather periods when
[[Page 6249]]
revenue collections are lower than costs.\154\
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\154\ See GAO, ``Federal User Fees: Fee Design Options and
Implications for Managing Revenue Instability,'' (Sept. 30, 2013),
https://www.gao.gov/assets/gao-13-820.pdf (last visited May 3,
2023).
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The proposed rule explained how USCIS uses and estimates carryover
balances. See 88 FR 402, 417, 426-427 (Jan. 4, 2023); see also IEFA
Non-Premium Carryover Projections in the supporting documentation
included in the docket to this rulemaking. Most Federal programs are
financed by discretionary appropriations that receive an annual
Treasury warrant, which establishes a cash balance in their accounts
after enactment of appropriations.\155\ USCIS' IEFA has permanent or
indefinite warrant authority that allows for immediate access to
carryover balances and revenue collections subject to the annual
spending limits established by Congress. Id.
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\155\ See generally U.S. Department of the Treasury, Bureau of
the Fiscal Service, ``Treasury Financial Manual,'' ``Chapter 2000.''
Available at https://tfm.fiscal.treasury.gov/v1/p2/c200 (last viewed
Aug. 27, 2023).
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Carryover balances give USCIS and other fee-funded agencies
flexibility throughout the fiscal year if costs exceed revenues.
Historically, fee revenue in the first quarter of the fiscal year is
low due to seasonal filing patterns. Therefore, USCIS requires
carryover funds to pay Federal salaries and award certain contracts at
the beginning of the fiscal year. USCIS manages its fee accounts to
ensure that adequate carryover balances are generated and retained to:
Cover the cost of processing immigration benefit requests
that are pending adjudication at the end of the fiscal year.
Serve as contingency funding in the event of an unexpected
decline in fee collections.
Cover the start-up costs of new or expanded programs
before sufficient fee revenues from such programs are collected (if a
fee is to be collected).
Cover other valid contingencies.
DHS declines to make changes based on this comment, except for
budget and operational changes described elsewhere in this final rule,
which may affect the forecast for carryover balances.
D. FY 2022/2023 IEFA Fee Review
1. Projected Costs, and Revenue
Comment: A commenter asked USCIS to explain and justify how the
percentage increase or change for each fee was calculated. Another
commenter stated that the proposed rule provided no data point(s) on
the cost of resource usage about each form category and reasoned that
without establishing effort estimates, an increase in fees would be
arbitrary. A few commenters wrote that USCIS' projected costs and
revenue are not credible.
Response: In the proposed rule, DHS provided information on how it
calculated the budget and revenue and estimated costs for the fee
review. See 88 FR 402, 426-432 (Jan. 4, 2023). DHS described the
methodology it uses to assign those estimated costs in an ABC model.
See 88 FR 402, 432-451 (Jan. 4, 2023); see also FY 2022/2023 IEFA Fee
Review Supporting Documentation (supporting documentation), and FY
2022/2023 IEFA Fee Schedule Documentation (fee schedule documentation)
both included in the docket as numbers USCIS-2021-0010-0028 and USCIS-
2021-0010-0029 respectively for review and comment. DHS described how
it assesses and proposed fees based on the ABC model results or policy
decisions to maintain some current fees or limit some fee increases.
See 88 402, FR 450-451. DHS describes changes to the fee review budget
in sections II.C. and II.F. of this preamble.
Throughout the proposed rule, DHS referenced ABC model results,
often called the model output, when discussing proposed fees. See,
e.g., 88 FR 402, 485-487, 503, 515-516 (Jan. 4, 2023). DHS included
supplemental information associated with the FY 2022/2023 fee review
results and corresponding proposed rule in the docket. The supporting
documentation provided a functional overview of the fee review process
and results. It includes estimated total cost and unit costs for each
immigration benefit request in the fee review.\156\ USCIS also
demonstrated the ABC model software used for the fee review during the
public comment period.\157\
---------------------------------------------------------------------------
\156\ For example, see Appendix Table 3: Projected Total Cost by
Immigration Benefit Request in the supporting documentation for the
proposed rule available at https://www.regulations.gov/document/USCIS-2021-0010-0028.
\157\ A transcript of the software demonstration is available at
https://www.regulations.gov/comment/USCIS-2021-0010-4141.
---------------------------------------------------------------------------
DHS provides revised versions of the supplemental documents based
on budget, staffing, or operational changes described elsewhere in this
preamble but declines to make any other changes based on these
comments.
DHS notes that fees do not merely cover the cost of adjudication
time because USCIS incurs costs that are not directly associated with
adjudication. The fees also cover the resources required for intake of
immigration benefit requests, customer support, fraud detection,
accounting, human capital, legal counsel, training, and other
administrative requirements.\158\
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\158\ In the supporting documentation for the proposed rule, see
appendix tables 4-7 for details on how DHS proposed fees based on
the ABC model results and results by fee review activity. Pages 10-
12 define the activities in the appendix tables. See U.S.
Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security, FY
2022/2023 IEFA Fee Review Supporting Documentation (Jan. 2023),
https://www.regulations.gov/document/USCIS-2021-0010-0028.
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2. Methodology
Many commenters wrote with general concerns that the proposed
increases to fees lack substantive support and transparency on how the
agency calculates fee amounts based on workload and metrics used to
review and adjust fees. More detailed comments on the methodology are
in the following subsections.
a. Completion Rates (Average Hours per Adjudication of an Immigration
Benefit Request)
Comment: Commenters expressed concern with growing adjudication
times and increases in completion rates for forms and certain
applications. Some commenters divided current or proposed fees by
completion rates (average hours per adjudication of an immigration
benefit request) to calculate hourly rates for immigration benefits.
Commenters expressed concern with increasing hourly rates of their own
determination, citing various forms. Commenters stated:
USCIS' data shows a significant increase in completion
rates without any corresponding change in statutory or regulatory
requirements.
Many forms have an increase in completion rates from 49
percent to 218 percent, despite the lack of statutory or regulatory
changes.
Many forms with increased completion rates show
substantial proposed fee increases.
They are concerned about completion rates for selected
forms and suggested that USCIS work to eliminate or reduce
inefficiencies.
USCIS notes that they used pre-pandemic values for some,
but not all, of the data used to project completion rates, and the lack
of clarity on these differences raises questions about the validity of
the data used in the ABC model.
Most of the Form I-129F, Petition for Alien
Fianc[eacute](e), filings do not require applicant interviews or
otherwise take up extreme officer
[[Page 6250]]
resources that would justify this substantial of an increase.
Touch times for Form I-539 have increased even though
USCIS has reinstated concurrent processing of H1/H4/Employment
Authorization Document (EAD) and L1/L2/EAD applications, which should
result in gains in process efficiency.
Changes brought about by recent litigation should have
reduced touch times for many forms, but instead touch times have
increased.
How touch time would be tracked and calculated using the
costing model and if USCIS includes FDNS activity in its calculation of
touch time.
Increased form length is a major reason why USCIS
adjudicators are spending 3.3 million additional hours reviewing
petitions and USCIS must stop requiring unnecessary renewals of work
permits.
Commenters provided recommendations for reducing
completion rates.
Some applicants are paying ``over $1,000+/hour'' despite
an adjudication burden of only a few hours for completion.
USCIS' ``effective hourly rate'' is four times the
prevailing wage for an attorney.
Response: USCIS used the best completion rate data available at the
time to conduct the FY 2022/2023 fee review. In its last four fee
rules, DHS has used USCIS completion rates to assign costs from the
Make Determination activity to individual cost objects (i.e., forms).
USCIS continued this approach in the FY 2022/2023 fee review. As
explained in the proposed rule, USCIS relied on completion rates before
the pandemic to remove this effect from the fee review. See 88 FR 402,
446. USCIS used online filing data that included pandemic months. See
88 FR 402, 490. The mix of two time periods for two different data
points should not affect the results of the ABC model. When online
filing is available, USCIS often uses the same case management system
to adjudicate both online and paper filings. As such, USCIS used the
same completion rates for both online and paper filings.
DHS limited many of the proposed fee increases (i.e., adoption-
related form fees, Forms I-290B, Notice of Appeal or Motion, I-360,
Petition for Amerasian, Widow(er), or Special Immigrant, N-400,
Application for Naturalization, etc.), as done in previous fee rules.
See 88 FR 402, 450-451 (Jan. 4, 2023). In other cases, DHS proposed to
maintain the current fee (i.e., Forms I-90 when filing online, I-131A,
N-565, etc.). See 88 FR 402, 451 (Jan. 4, 2023). Some other fees do not
use completion rates (i.e., I-131A, H-1B Registration Fee, USCIS
Immigrant Fee, etc.). See 88 FR 402, 446-447 (Jan. 4, 2023). As
explained elsewhere in this rule, many of the final fees are lower than
in the proposed rule. For example, DHS limits the fee increase to
inflation since the 2016 rule for Forms I-130, Petition for Alien
Relative, I-485, Application to Register Permanent Residence or Adjust
Status, I-765, Application for Employment Authorization, etc.
DHS appreciates the commenters' concerns about increased form
length, timely service, and higher fees. USCIS continually strives to
minimize the burden on requesters, meet timely adjudication goals while
balancing security, eligibility analysis, and integrity in the
immigration system. The proposed rule highlighted areas where USCIS may
be able to increase efficiency or reduce adjudication time or staffing.
See 88 FR 402, 529 (Jan. 4, 2023). However, it may be too early for
USCIS to see results from these planned changes or recently implemented
changes. Future fee rules may use more recent completion rates, which
may include efficiencies or reduced adjudication times. As noted
previously, fees do not merely cover the cost of adjudication time
because USCIS incurs costs that are not directly associated with
adjudication. The hourly adjudication rates calculated by some
commenters must fund the cost of relevant administrative costs,
technical and technological facilitation, and similar services provided
at no or reduced charge that are not recovered from other fees. By
limiting many of the final fees to an inflation-based adjustment of the
current fee, rather than one calculated based on a completion rate, DHS
addresses the concerns of the commenters who disagree with fees being
based on completion rates and the relative complexity of the
adjudication. With this approach, USCIS may continue to improve
efficiency and adjudication times without overburdening customers with
fees that are higher than inflation for family-based and humanitarian
workloads, in most cases.
b. Other Comments on Methodology (e.g., ABC Software/Models, Age of
Data)
Comment: Multiple commenters also stated that the ABC model is
flawed, or the documentation is insufficient for the following reasons:
Documentation of the fee review methodology and inputs
does not provide a comprehensive understanding of the study's
execution.
USCIS chose not to use actual cost values and instead
relied on projections, and it could not identify information in the
documentation that either explained with specificity how the projected
values were determined or addressed potential observational errors that
may have impacted cost projections.
Documents provided to the public did not provide the
insight necessary to ascertain how the data in the model was compared
across the FYs that USCIS examined.
The ABC model has underestimated the number of petitions
that will be filed and therefore underestimated the impact on small and
seasonal American businesses, farmers, and the public.
Because USCIS is proposing that employment-based
applications cover the cost for other benefits, underestimation of H-2B
and H-2A filings shows that other employment filings are also off, and
the proposed fees and cost offsets need to be further reviewed with
more adequate data.
USCIS should be more transparent on USCIS' ABC model and
into calculation and review of fee levels.
USCIS should provide a public forum whereby it describes
to stakeholders how the methodology and data used in the ABC model
allowed it to reach its conclusions.
USCIS does not provide the public with the information
that went into the ABC model and consequently the public cannot
determine whether its conclusions are justified or reasonable.
Response: The INA authorizes DHS to recover the costs of USCIS by
collecting fees and the CFO Act requires us to do a fee review every 2
years. Neither statute requires use of any particular methodology. As
stated in the proposed rule and this rule, DHS strives to follow OMB
Circular A-25, as appropriate for the programs we administer. In doing
so, DHS strives to allocate fees using activity-based costing, adjust
fees using considerations of public policy, interests served, and other
relevant facts, and consider the recommendations of GAO regarding
beneficiary-pays and ability-to-pay principles to shift costs and set
our final fees. Our adopted methodology results in some requests paying
no fee, others paying more, and others paying less. DHS tries to be
fair, precise, transparent, and thoughtful within reasonable margins of
accuracy and precision. Nonetheless, the commenter's assertion that our
calculations or fee determination is incorrect is misplaced. DHS
explains in the supporting documentation in the docket for this rule
how each fee in the proposed rule and this rule were calculated. DHS
[[Page 6251]]
engages in discretionary cost shifting and adjusts before arriving at a
final fee schedule. DHS outlined how the ABC model works in the
proposed rule preamble and supporting documentation, consistent with
previous fee rules. In addition, it shared model and fee schedule
documentation in the docket. USCIS also provided a demonstration of the
model, as requested, and placed a transcript of the demonstration in
the docket.\159\ During the demonstration, USCIS often referred to
information in the docket to show how the model uses it. The
information used to calculate specific fees is the best and most
complete information available at the time of the fee review. Requests
that were only developed or authorized relatively recently (e.g.,
separate fees for Form I-129; Employment Based Immigrant Visa, Fifth
Preference (EB-5) workloads; Asylum Processing IFR costs) may have
limited data, not be fully implemented, or require assumptions for the
new fees. USCIS will be able to refine this data in the future as
programs mature or data collection begins, which will be used for
future fee reviews. Some fee changes in the proposed rule and this
final rule are outside of the ABC model, as discussed in the preamble
and fee schedule documentation. See, e.g., 88 FR 402, 450-454 (Jan. 4,
2023).
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\159\ See USCIS, ``USCIS Fee Rule Software Demonstration,'' Mar.
1, 2023, available at https://www.regulations.gov/comment/USCIS-2021-0010-4141.
---------------------------------------------------------------------------
Information provided in the ABC model includes the cost
projections, volume, and completion rates discussed in the preamble.
See, e.g., 88 FR 402, 426-452 (Jan. 4, 2023). The supporting
documentation discussed additional information, such as staffing
levels, fee review activities, and a functional overview of ABC in
general and the USCIS ABC model. The model documentation provided
functional and technical details on how the model works. It included
diagrams, screenshots, lists, and tables for various aspects of the ABC
model. Thus, DHS believes that we have explained and justified our
calculations of the fees in this final rule.
As for the filing volume estimates, USCIS uses a volume projection
committee (VPC) with statistical and analytical experts who
systematically examine filing volumes to produce forecasts used in fee
studies. The VPC examines past trends, forecasts, and varying models,
and USCIS has found that the VPC reliably minimizes forecast errors
that might occur if forecasting were left to self-interested parties.
The VPC projects filing volume several years ahead. USCIS has reviewed
the comments from H-2A and H-2B employers that misunderstood the 25
named beneficiaries per petition requirement as a limit on the overall
number of beneficiaries and argued the ratio of initial to continuing
requests to be a superior basis for modeling annual growth of at least
15 percent in both H-2A and H-2B volumes, in perpetuity. USCIS agrees
with one commenter that nature is unpredictable and demand for seasonal
agricultural workers is volatile but disagrees with unsupported
arguments that higher H-2A and H-2B volumes and thus revenues are self-
evident. In the event less likely volumes did occur, commenters
overlook that this would cause changes in the activities driving ABC
model estimates of average costs and impact the revenue the fee would
generate. Thus, USCIS must take care to neither over nor underestimate
future, unknowable volumes without bias.
3. TPS and DACA (e.g., Exclusion From Cost Model, I-821, I-765
Exemption for Certain TPS Applicants, and DACA Rulemaking)
Comment: Commenters provided the following comments on how the
proposed rule would affect DACA requests, fees, and grantees:
Increased fees would create hardship for DACA students
required to renew their paperwork every 2 years.
Higher fees increase the vulnerability of DACA recipients
by raising the costs to maintain their documentation.
USCIS should set DACA application fees at current or lower
levels to address financial disparities faced by immigrant communities
and working families.
DACA recipients already pay a filing fee that other
protected groups do not, and fee waivers are not a solution to the
proposed increase.
Maintain current DACA fees because DACA recipients were
not considered in the financial modeling for the proposed rule.
Some disagreed with the exclusion of DACA recipients from
filing fee relief regardless of their potential financial hardship.
The DACA program diverts agency resources from lawful
immigrant programs, resulting in fee increases and longer processing
times for applicants to other visa programs.
USCIS should increase processing fees for DACA because the
fee is lower than other requests, yet the burden is higher.
DACA requestors broke the law so their fees should be
punitive.
DACA recipients should be able to request advance parole
based on any grounds and be allowed to request a fee waiver.
Response: This rule makes no changes to DACA, the validity period
for approved DACA renewals or how often DACA must be renewed, policies
regarding DACA recipients' ability to request advance parole, or any
DACA-specific fees. As explained in the proposed rule, DACA is a
temporary act of enforcement discretion, may be terminated at any time,
and thus it is a source of revenue on which DHS does not want the
fiscal condition of USCIS to depend. See 88 FR 402, 454-455 (Jan. 4,
2023).
To request DACA, an individual must file Form I-821D, Consideration
of Deferred Action for Childhood Arrivals, which has an $85 filing fee.
The applicant must also file Form I-765, Application for Employment
Authorization, together with Form I-821D for the DACA request to be
complete. Form I-765 is a general form used by millions outside of the
DACA population. It has a filing fee of $410, which increases in this
final rule to $470 when filed online or $520 when filed on paper. All
Form I-765 applicants pay the same fee, unless they are fee exempt or
request a fee waiver. DHS found no differences in the burden of
adjudicating Form I-765 for DACA than for any other Form I-765 and we
have no policy reasons for capping their fee at a lower amount. In
DHS's 2022 DACA rule, the total fee to submit a DACA request of $495
($85 plus $410) was a reasonable proxy for the Government's costs of
processing these forms. See 87 FR 53152, 53278 (Aug. 30, 2022).\160\
However, that rule also stated that DHS planned to propose new USCIS
fees in a separate rulemaking, and that the fee for Form I-765, may
need to be adjusted because it has not changed since 2016. Id.
---------------------------------------------------------------------------
\160\ On Sept. 13, 2023, the U.S. District Court for the
Southern District of Texas issued a decision finding the DACA rule
unlawful and expanding the original July 16, 2021 injunction and
order of vacatur to cover the final rule. See Texas v. United
States, No. 1:18-CV-00068 (S.D. Tex. Sept. 13, 2023), appeal
pending, No. 23-40653 (5th Cir. filed Nov. 9, 2023); see also USCIS,
``Important Update on Deferred Action for Childhood Arrivals,''
available at https://www.uscis.gov/newsroom/alerts/important-update-on-deferred-action-for-childhood-arrivals (last reviewed/updated
Sept. 18, 2023).
---------------------------------------------------------------------------
In DHS's 2022 DACA rule, DHS considered allowing fee waivers or fee
exemptions for DACA requestors. See 87 FR 53152, 53237-53238. In that
rule DHS recognized that some DACA
[[Page 6252]]
requestors may face economic hardship that affects their ability to pay
the required fees. However, it noted that DACA, as an exercise of
prosecutorial discretion that allows DHS to focus limited resources on
higher priority cases, is not an immigration benefit or associated
filing for which DHS is required to allow a request for a fee waiver
under INA sec. 245(l)(7), 8 U.S.C. 1255(l)(7), and that it is
appropriate for beneficiaries of this enforcement discretion to cover
the cost of adjudication. Id. DHS declines to reverse that decision in
this rule. This final rule sets fees for Form I-765 that are increased
only by the rate of inflation since they were last established, and
less than the proposed fees, as explained elsewhere in in section
II.C.8 of this rule's preamble.
Comment: A commenter wrote that USCIS could allocate more resources
to TPS based on how much an applicant paid in fees, and that TPS could
receive faster processing if they paid more.
Response: As explained in the proposed rule, DHS excludes projected
revenue from expiring or temporary programs in setting the fees
required to support baseline operations due to the uncertainty
associated with such programs. See 88 FR 402, 454 (Jan. 4, 2023). DHS
realizes that USCIS has processing backlogs for Form I-821, Application
for Temporary Protected Status, and we are working to reduce those
backlogs and approve requests quickly. DHS is precluded from charging
more for faster processing of the Form I-821 by INA sec. 244(c)(1)(B),
8 U.S.C. 1254a(c)(1)(B), which caps the TPS registration fee at $50.
While USCIS has implemented premium processing for some Form I-765
categories in March 2023, a TPS related Form I-765 was not one of
them.\161\ USCIS may offer premium processing for TPS-related Form I-
765 filings as provided in 8 CFR 106.4 in the future as we develop more
capacity to offer premium service to more requests. Meanwhile, DHS
makes no changes to this rule based on this comment.
---------------------------------------------------------------------------
\161\ USCIS, ``USCIS Announces Premium Processing; New Online-
Filing Procedures for Certain F-1 Students Seeking OPT or STEM OPT
Extensions,'' available at https://www.uscis.gov/newsroom/news-releases/uscis-announces-premium-processing-new-online-filing-procedures-for-certain-f-1-students-seeking-opt (last reviewed/
updated Mar. 6, 2023).
---------------------------------------------------------------------------
4. Processing Time Outlook and Backlogs
Comment: Many of the commenters opposed fee increases because of
delays in processing times and dissatisfaction with customer service.
Commenters wrote:
Conditional support for the fee increases if such
increases will improve or not cause any backlogs and only if USCIS can
process cases quickly or accelerate processing.
USCIS should improve efficiency and achieve long term
structural improvements without increasing fees, should focus first on
improving efficiency and service provision as opposed to raising fees,
include a processing time guarantee, establish a ``binding'' processing
timeframe with each fee increase, reverse the fee increases if USCIS
fails to meet specific processing times, and USCIS has no
accountability with maintaining regular processing times and has not
demonstrated the ability to reduce these timelines. Commenters
questioned what mechanisms would hold USCIS to higher efficiency
standards.
USCIS should clear the backlog and decrease processing
times, the current backlog and long processing times are not
reasonable, processing times are getting longer without any justifying
policy or legal changes, USCIS has ``record-high'' processing delays
and backlogs and is not meeting legal guidelines for processing times,
processing times increased over the last 6 years by as much as 218
percent.
USCIS has no accountability with maintaining regular
processing times and has not demonstrated the ability to reduce these
timelines. Commenters stated the growing length of USCIS forms is a
``major contributor'' to the backlog.
Applicants are not responsible for the backlog and should
not carry its burden, the backlog is harmful for low-income applicants
awaiting permanent residency or naturalization, and immigrant and
nonimmigrant fees should bear the burden of cost for the backlog rather
than U.S. citizens or noncitizen relatives.
The backlog has a negative impact on many non-immigrant
workers, DACA recipients, TPS holders, and other EAD applicants seeking
to maintain their employment status in their current jobs and seeking
USCIS services, and applicants from higher education seeking employment
or other opportunities.
Raising fees and hiring additional staff would be a
``band-aid'' solution to a flawed processing model that has created the
current backlog crisis.
Processing delays may deter many touring artists from
performing in the United States and processing delays force some
petitioners to pay the premium fees for international artists,
particularly given the specific timing demands of performing arts
schedules.
USCIS should improve processing so fewer applicants need
to pay for premium processing.
USCIS requires some dependents of long-term temporary
workers to file extensions of status separate from the worker,
contributing to the backlog.
USCIS should reduce Requests for Evidence (RFE) as
unnecessary complications that cause delays in processing, publish RFE
issuance rates by adjudicator, and establish stricter requirements for
responding to evidence and issuing RFEs.
Recent RFE reductions by USCIS should be considered in the
proposed filing fees.
In response to the statement in the proposed rule that
part of the 2022 congressional appropriations would be used to reduce
current backlogs and delays, USCIS has not shown the capacity to
quickly address developing backlogs and USCIS should not rely solely on
yearly appropriations.
Recommendations of several means of reducing backlog,
including requesting annual appropriations if needed and adjusting fees
annually based on staffing factors.
The processing times and backlogs for the Form I-600A and
I-600 series and Form I-800A and I-800 series should be reduced, and
adjudication of adoption cases should be prioritized.
Concerns about specific forms, including Form I-129
processing times are three to five times longer than mandated by
statute for L-1 petitions.
Form I-539 processing times have ballooned despite process
changes that should have streamlined adjudication, for Form I-485,
USCIS should promise a period of fewer than 6 months to process the
form and its underlying petitions; applicants must file concurrent
Forms I-485, I-131, and Form I-765, given the increasing processing
times.
These delays increase backlogs for Form I-129F. Because
the processing time has increased in recent years, USCIS should not
propose to significantly increase fees for the fianc[eacute] and
spousal applications.
Lengthy processing times for Form I-131, result in
increased congressional inquiries, Ombudsman's inquiries, and expedite
requests, all of which create greater inefficiencies.
Further, processing delays make it difficult for students
to anticipate their start dates on their applications and are not
warranted given that the Form I-765 duplicates information that USCIS
has already collected.
[[Page 6253]]
For Form I-824, the simple purpose of this form should not
necessitate processing times of 2-4 years.
Form N-400 commenters recommended a case processing goal
of 4-6 months and stated that increased vetting policies have increased
processing times, despite stable rates of approval of applications.
USCIS has a 1-to-3-month processing time for O-1 petitions
(although the statutory requirement for adjudication is 14 days), so
USCIS should refund the filing fee if processing takes longer.
For K-1 visa holders applying for Adjustment of Status,
processing time varies greatly depending on the applicant's location of
residency and review of interim benefit requests for such applicants
should be shorter given that those applicants' relationships and
backgrounds have already been reviewed.
Processing delays for F-1 student visas impede
registrations from international students, which can diminish the
students' contribution to U.S. innovation and limits revenue streams
for U.S. colleges and universities.
Lengthy J-1 waiver approval processing has caused
interruptions in income or necessitated priority processing.
DHS should avoid any Form N-400 fee increase by pursuing
greater efficiencies and cost savings using technology.
USCIS should refund the higher proposed fees if the agency
does not process the following forms within its processing time goal:
I-290B, I-800A, I-824, I-140, N-400, I-526, I-102, I-130, I-129F, I-
360, I-129, I-90, I-539, I-131, I-765, I-485.
Increased processing times and the need to hire new
employees are problems of USCIS' own making through unnecessary RFEs,
biometrics, in-person interviews, site visits, audits, and failure to
take advantage of technological advances that could lead to more
streamlined and cost-effective procedures. It is prudent for USCIS to
increase fees because it has been 6 years since the last increase and
the United States is experiencing widespread inflation, but USCIS
should ensure that any increase improve the efficiency of its services
and customer support.
Response: USCIS appreciates that its processing backlogs have a
negative impact on many stakeholders who submit and rely on immigration
benefit requests. USCIS is committed to timely processing goals and
reducing its backlog. DHS acknowledges that since it last adjusted fees
in FY 2016, USCIS has experienced elevated processing times compared to
the goals established in the 2007 fee rule. See 72 FR 29858-29859.
Processing delays have contributed to case processing backlogs. USCIS
total pending caseload has grown from approximately 4.7 million cases
in December 2016, when DHS last adjusted IEFA non-premium fees, to
approximately 8.9 million cases at the end of June 2023.\162\ On top of
these preexisting strains on USCIS, the COVID-19 pandemic constrained
USCIS adjudication capacity by limiting the ability of USCIS to
schedule normal volumes of interviews and biometrics appointments while
maintaining social distancing standards. See 88 FR 402, 455 (Jan. 4,
2023). COVID flexibilities likely increased the time to respond to an
RFE, as well as processing times.\163\ Further, USCIS believes that the
growing complexity of case adjudications in past years, including prior
increases in the number of interviews required and RFE volumes, at the
time contributed to higher completion rates and growing backlogs. Id.
---------------------------------------------------------------------------
\162\ See USCIS, ``Number of Service-wide Forms by Fiscal Year
to Date, Quarter and Form Status 2017,'' available at https://www.uscis.gov/sites/default/files/document/data/ECN_1893_-_Quarterly_-_All_Forms_FY17Q1_Final.pdf (last visited Sep. 29,
2023). USCIS, ``Number of Service-wide Forms By Quarter, Form
Status, and Processing Time, April 1, 2023--June 30, 2023,''
available at https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2023_q3.pdf (last visited Sep. 29, 2023).
\163\ See, e.g., USCIS, ``USCIS Extends COVID-19-related
Flexibilities'' available at https://www.uscis.gov/newsroom/alerts/uscis-extends-covid-19-related-flexibilities-1 (last revised/updated
Jan. 24, 2023).
---------------------------------------------------------------------------
USCIS is making progress reducing backlogs and processing times.
For example, USCIS committed to new cycle time goals in March
2022.\164\ These goals are internal metrics that guide the backlog
reduction efforts of the USCIS workforce and affect how long it takes
the agency to process cases. As cycle times improve, processing times
will follow, and requestors will receive decisions on their cases more
quickly. USCIS has continued to increase capacity, improve technology,
and expand staffing in an effort to achieve these goals by the end of
FY 2023. DHS automatically extended some EADs to help prevent renewal
applicants from experiencing a lapse in employment authorization or
documentation while their applications remain pending. See 87 FR 26614
(May 4, 2022). Automatic extension of employment authorization or
documentation allows some immigrants, including asylees, refugees, and
TPS holders, to maintain their employment status in their current jobs.
Id at 26615-26617. To highlight other efforts toward reducing the
backlog and processing times, USCIS published a progress report to
demonstrate both how backlog reduction and humanitarian services were
successfully supported by appropriations by Congress in FY 2022.\165\
USCIS reduced the backlog for naturalization and the wait time for
employment authorization, while expanding humanitarian efforts.\166\
USCIS already delivered on one of the commitments in the progress
report by implementing premium processing for all employer Form I-140
petitions for immigrant workers.\167\ Since publishing the report,
USCIS also announced that premium processing is available for certain
students seeking Optional Practical Training (OPT) or Science,
Technology, Engineering, and Mathematics (STEM) OPT extensions, as well
as certain changes or extensions of nonimmigrant status.\168\
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\164\ See USCIS, ``USCIS Announces New Actions to Reduce
Backlogs, Expand Premium Processing, and Provide Relief to Work
Permit Holders,'' https://www.uscis.gov/newsroom/news-releases/uscis-announces-new-actions-to-reduce-backlogs-expand-premium-processing-and-provide-relief-to-work (last visited Feb. 8, 2023).
\165\ See USCIS, ``USCIS Releases New Data on Effective
Reduction of Backlogs, Support for Humanitarian Missions, and Fiscal
Responsibility,'' https://www.uscis.gov/newsroom/news-releases/uscis-releases-new-data-on-effective-reduction-of-backlogs-support-for-humanitarian-missions-and (last visited Feb. 7, 2023).
\166\ See USCIS, ``Fiscal Year 2022 Progress Report,'' Dec.
2022, available at https://www.uscis.gov/sites/default/files/document/reports/OPA_ProgressReport.pdf (last visited Feb. 8, 2023).
\167\ See USCIS, ``USCIS Announces Final Phase of Premium
Processing Expansion for EB-1 and EB-2 Form I-140 Petitions and
Future Expansion for F-1 Students Seeking OPT and Certain Student
and Exchange Visitors,'' https://www.uscis.gov/newsroom/alerts/uscis-announces-final-phase-of-premium-processing-expansion-for-eb-1-and-eb-2-form-i-140-petitions (last visited Feb. 7, 2023).
\168\ See USCIS, ``USCIS Announces Premium Processing; New
Online-Filing Procedures for Certain F-1 Students Seeking OPT or
STEM OPT Extensions,'' https://www.uscis.gov/newsroom/news-releases/uscis-announces-premium-processing-new-online-filing-procedures-for-certain-f-1-students-seeking-opt (last visited Mar. 6, 2023); USCIS,
``USCIS Expands Premium Processing for Applicants Seeking to Change
into F, M, or J Nonimmigrant Status,'' https://www.uscis.gov/newsroom/alerts/uscis-expands-premium-processing-for-applicants-seeking-to-change-into-f-m-or-j-nonimmigrant-status (last visited
June 12, 2023).
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DHS appreciates the operational suggestions submitted by commenters
regarding interviews, RFEs, online filing, prioritization of certain
requests, USCIS office staffing, and other steps to address the USCIS
processing backlog. As explained in the proposed rule, USCIS is
reviewing its adjudication and administrative policies to find
[[Page 6254]]
efficiencies, while strengthening the integrity of the immigration
system. See 88 FR 402, 455 (Jan. 4, 2023). This entails evaluating the
utility of interview requirements, biometrics submission requirements,
RFEs, deference to previous decisions, and other efforts that USCIS
believes may, when implemented, reduce the amount of adjudication
officer time required, on average, per case. Id. Any improvements in
these completion rates would, all else equal, reduce the number of
staff and financial resources USCIS requires. Furthermore, USCIS is
actively striving to use its existing workforce more efficiently, by
investigating ways to devote a greater share of adjudication officer
time to adjudications, rather than administrative work. All else being
equal, increasing the average share of an officer's time spent on
adjudication (that is, utilization rate) would increase the number of
adjudications completed per officer and reduce USCIS' overall staffing
and resource requirements.
USCIS based its fee review largely on existing data that do not
presume the outcome of these efficiency initiatives. USCIS cannot
assume significant efficiency gains in this rule in advance of such
efficiency gains being measurably realized. Establishing more limited
fees to account for estimated future efficiency could result in
deficient funding, and USCIS would not be able to meet its operational
requirements. USCIS also cannot refund fees if it does not meet its
processing time goals as commenters suggest without incurring
significant harm to its fiscal position, which would in turn only
exacerbate backlogs. In contrast, if USCIS ultimately receives the
resources identified in this rule and subsequently achieves significant
efficiency gains, this could result in backlog reductions and shorter
processing times. Those efficiency improvements would then be
considered in future fee reviews, as indicated in the proposed rule.
See 88 FR 402, 529-530 (Jan. 4, 2023).
Finally, regarding the current USCIS processing time for O-1
petitions, and the commenter's suggestion that USCIS should refund
filing fees for O-1 petitions that take more than 14 days to
adjudicate, DHS disagrees with the commenter's assertion that there is
a generally applicable requirement to process O-1 petitions within 14
days. Rather, the statute and regulations refer to a non-binding 14-day
processing time, after USCIS receives an advisory opinion, in the
limited context where USCIS requests an advisory opinion from an
appropriate labor organization. See 8 U.S.C. 1184(c)(6)(D); 8 CFR
214.2(o)(5)(i)(F). DHS will not adopt the commenter's suggestion to
refund O-1 petition filing fees in cases that take longer than 14 days
to adjudicate. As with other filing fees, the O-1 petition filing fee
is due at time of filing and is nonrefundable.
In sum, DHS understands the need for timely service, system
improvements, and customer support. USCIS continually strives to meet
timely adjudication goals while balancing security, eligibility
analysis, and integrity in the immigration system. Fees have not been
adjusted since 2016. Meanwhile, USCIS expanded its humanitarian
efforts, often without appropriations or revenue to offset the
additional cost.\169\ This fee rule is intended to address such
shortfalls and provide resources necessary to ensure adequate service.
USCIS would be unable to adequately perform its mission if DHS allowed
fee levels to remain insufficient while USCIS continued to explore and
implement options for additional efficiencies.
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\169\ For example, as described in section III.C. DHS
established new parole processes for certain Cubans, Haitians,
Nicaraguans, and Venezuelans, and new family reunification parole
processes for certain Colombians, Salvadorans, Guatemalans, and
Hondurans.
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Comment: Many of the commenters suggested operational improvements
which they felt would reduce processing times or improve customer
service. Commenters wrote:
USCIS should add more electronic filing.
USCIS should use interview waivers, evidence of employment
authorization, the creation of a trusted filer program, remote
interviews, phone appearances, grandfathering, penalty fees, extend
validity periods of visas, and recapture and issue Green Card numbers
that have gone unused to reduce costs and the backlog.
Applicants should be given the name and email of their
adjudicator to establish more transparent and efficient communication.
USCIS should increase adjudicator hiring rates and
training, and provide better training combined with managerial
oversight and review of adjudications.
USCIS should transparently include planned process
improvements in its costing model.
Form I-130, commenters recommended a simplified
registration system to prevent USCIS from spending resources managing
applications during lengthy waiting periods.
USCIS should stop requiring unnecessary renewals of work
permits, citing research that such renewals compose 20 percent of the
case backlog.
USCIS should stop printing Green Cards, and EAD cards for
applicants who already have a Green Card.
DHS should offer premium processing fees to alleviate long
processing times for VAWA applicants coming from difficult situations.
Combining the forms, fees, and adjudications for Forms N-
400 and N-600 would save both families and USCIS considerable time and
money.
Effort to process Form I-751 has fallen by 11 percent over
the past 6 years but processing time is increasing dramatically and
does not comply with statutory timeframes. Fees for I-751 filers should
be used to improve I-751 processing times and not for other higher
priority forms.
Response: DHS appreciates the operational suggestions submitted by
commenters regarding processing times, process improvement, customer
service, interviews, streamlined filings, online filing, prioritization
of certain requests, training, and other steps to address the USCIS
processing backlog. As explained in the proposed rule, USCIS is
reviewing its adjudication and administrative policies to find
efficiencies, while strengthening the integrity of the immigration
system. See 88 FR 402, 455 (Jan. 4, 2023). DHS considered these
recommendations but declines to make changes in this rule. DHS may
consider these changes again in future rulemakings.
E. Fee Waivers
1. General Comments
Comment: Multiple commenters expressed general support for the fee
waiver provisions in the proposed rule, some without explanation and
others for the following reasons:
Fee waivers are important for immigration relief because
they help families improve their stability, financially support
themselves, and fully integrate into the workforce.
The proposed rule would replace the enjoined 2019/2020
changes, which severely limited immigrants' access to fee waivers
including the reduced fee option for low-income naturalization
applicants. The proposed rule would revert to the inability to pay
model for establishing eligibility for fee waivers, and avoid other
issues in prior proposed fees.
Many individuals apply for naturalization or a Certificate
of Citizenship with a fee waiver.
The proposed rule continues to allow fee waivers for forms
associated with certain types of humanitarian benefits. The United
States has a moral and legal obligation to protect persons fleeing
persecution.
[[Page 6255]]
The proposed rule would preserve existing fee waiver
eligibility for low-income and vulnerable populations and ensure that
the fee changes would not disproportionately impact people who are
struggling financially. Fee waivers provide an opportunity for low-
income individuals to become citizens of the United States and
participate in the democratic process. Without fee waivers, many low-
income individuals would not have an equal opportunity to access the
pathway to citizenship.
Many of the changes DHS proposed will prevent meritorious
fee waiver requests from being denied on arbitrary bases, as is often
now the case.
Strengthening of fee waivers supports union efforts to
uplift the rights and status of those in need of increased agency in
the labor market.
Response: DHS agrees with commenters regarding the importance of
fee waivers and will maintain their availability as explained in the
proposed rule.
2. Eligible Categories and Forms
Comment: Several commenters asked USCIS to balance fee increases by
significantly expanding fee waiver eligibility. One commenter stated
that DHS should expand the categories of applications eligible for fee
waivers without specifying which additional categories should receive
fee waivers. Another commenter encouraged USCIS to expand fee waivers
to further ensure that all vulnerable noncitizens who cannot afford to
pay filing fees are able to obtain a fee waiver and access immigration
benefits without unreasonable delay or undue difficulty. Another
commenter requested that USCIS allow for individual determinations as
to whether a fee waiver should be granted for all applications. The
commenter reasoned that categorical restrictions placed on fee waivers
for certain applications combined with the increase in fees proposed
will pose obstacles for many immigrants, resulting in the delay of
immigrants' ability to apply for immigration relief.
Response: DHS acknowledges the importance of ensuring that
individuals who cannot afford filing fees have access to fee waivers.
DHS has primarily sought to ease the burden of fee increases by
significantly expanding the number of forms that are now fee exempt.
See 8 CFR 106.3(b); Table 5B. DHS believes that these expanded fee
exemptions offer more certainty to those who are unable to pay
application fees and create less burden because they do not require
filing or processing of a fee waiver request. In addition, DHS is
maintaining the household income level for assessing a requestor's
ability to pay at 150 percent of the FPG instead of the 2019/2020 fee
rule's lower threshold of 125 percent of the FPG. 8 CFR
106.3(a)(1)(i)(B). This fee rule also retains the authority for the
Director of USCIS to provide exemptions from or waive any fee for a
case or specific class of cases, if the Director determines that such
action would be in the public interest and the action is consistent
with other applicable law. See 8 CFR 106.3(c). DHS believes it has
provided fee waivers for the appropriate forms and categories by
emphasizing humanitarian, victim-based, and citizenship-related
benefits. Additional fee waivers would limit USCIS' ability to fund
necessary activities and would lead to additional backlogs and delays.
Otherwise, USCIS would need to increase fees for other forms and
requestors to compensate for fewer requests paying fees. DHS has sought
to balance the need for the fee waivers and the need to ensure
sufficient revenue and does not believe additional fee waivers are
appropriate.
Comment: Multiple commenters wrote that USCIS should make
additional family-related immigration benefits eligible for fee
waivers. One commenter expressed concern that some Form I-129F
petitioners and beneficiaries would have to go into debt to get married
and recommended that DHS allow low-income individuals to request a
waiver of the Form I-129F. Another commenter expressed opposition to
the rule because fees cannot be waived for Forms I-130 and I-751.
Response: Contrary to the commenter's assertion, the fee for Form
I-751, Petition to Remove Conditions on Residence, can be waived. 8 CFR
106.3(a)(3)(i)(C). In general, however, DHS does not consider Form I-
129F, Petition for Alien Fianc[eacute](e), and Form I-130, Petition for
Alien Relative, appropriate for fee waivers because the petitioning
U.S. citizen or LPR relative is statutorily required to demonstrate
their ability to financially support the noncitizen beneficiary at the
time of their admission as an LPR. See INA secs. 212(a)(4)(C)(ii) and
213A, 8 U.S.C. 1182(a)(4)(C)(ii) and 1183a. DHS does not believe that
these USCIS fees represent an inordinate financial burden compared to
the financial commitment required to fully support an immigrant
relative.
Comment: A commenter expressed concern that the fee for Form I-539
is not waivable for T and U nonimmigrants when the form is filed
concurrently with Form I-485. The commenter remarked that this would
cause significant financial burden to victims filing U-visa and T-visa
based Form I-485 applications, who often cannot hire a private attorney
to help them file an I-485 in timely fashion, and the additional I-539
fee would further delay the ability of survivors in this situation to
reconcile their expired status with the filing of a nunc pro tunc Form
I-539 and Form I-485 application.
Response: In the proposed rule, DHS proposed to fully exempt the
fee for a Form I-539, Applicant to Extend/Change Nonimmigrant Status,
filed by applicants who have been granted T nonimmigrant status or are
seeking to adjust status under INA sec. 245(l), 8 U.S.C. 1255,
regardless of whether the form is filed before or concurrently with
Form I-485, Application to Register Permanent Residence or Adjust
Status. See 88 FR 402, 594 (Jan. 4, 2023) (proposed 8 CFR
106.3(b)(2)(vi)). DHS has maintained this fee exemption in the final
rule. 8 CFR 106.3(b)(2)(vi); Table 5C. Furthermore, in response to
comments, DHS has decided to extend the fee exemption for Form I-539 to
include applicants who have been granted U nonimmigrant status or are
seeking to adjust status under INA sec. 245(m), 8 U.S.C. 1255(m),
regardless of whether the form is filed before or concurrently with
Form I-485. 8 CFR 106.3(b)(5)(vi). That limited, additional fee
exemption did not increase the fees for other fee payers. As explained
elsewhere, DHS revised the USCIS budget to accommodate the revenue
generated by the fees and volumes in this final rule. These fee
exemptions will enable the vulnerable population of U nonimmigrants to
maintain their nonimmigrant status while applying to adjust to LPR
status.
Comment: A commenter stated that fee waivers and exemptions should
be extended to other critical forms for asylees, reasoning that asylees
are just as vulnerable and meet the same legal definition as refugees.
The commenter did not identify specific forms that should be eligible
for a fee waiver but asserted that the following forms should be fee
exempt: Form I-485 for asylees, Form I-765 renewal and replacement for
asylees and asylum applicants, and Form I-290B for asylees and refugees
when filed for Forms I-730 or I-485.
Response: All the forms identified by this commenter are eligible
for a fee waiver. 8 CFR 106.3(a)(3)(ii)(D), (F), (iv)(C); Table 5B.
Comments concerning fee exemptions are addressed later in the Section
IV.F of this preamble.
Comment: Commenters stated that the proposed fee changes would
unfairly categorize athletes as a classification
[[Page 6256]]
that can afford the fee increases and requested that a broader spectrum
of forms, including the Form I-129 and Form I-140 when not filed by an
employer, be eligible for fee waivers or reductions. Another commenter
encouraged USCIS to consider a waiver option for O and P petitions,
combined with a tiered structure (possibly based on maximum planned
venue size), which the commenter reasoned would benefit all interests
without jeopardizing potential U.S. revenue streams and the
socioeconomic contributions of small- and medium-sized artists.
Response: DHS recognizes commenters' concerns regarding the
affordability of Form I-129, Petition for a Nonimmigrant Worker, and
Form I-140, Immigrant Petition for Alien Workers, and that not all
athletes or artists are wealthy. As further discussed in Section II. C
of this preamble, in response to public comments and stakeholder
feedback, DHS is codifying a discounted Form I-129 fee for small
employer and nonprofit filers in this final rule. 8 CFR
106.2(a)(3)(ix). However, while DHS recognizes the economic and
cultural contributions made by O and P nonimmigrants and I-140 self-
petitioners, DHS does not believe that these factors justify fee-waiver
eligibility or fee exemptions for Form I-129 and Form I-140 petitions.
USCIS can only allow a limited number of forms to be eligible for fee
waivers, or else it would require even further increases in fees to
offset lost revenue. DHS has chosen to prioritize fee waivers for
humanitarian and protection-related immigration forms where the
beneficiary may not have a reliable income or their safety or health is
an issue, and naturalization and citizenship-related forms to make
naturalization accessible to all eligible individuals.\170\ DHS notes
that the process for assessing fee-waiver eligibility is generally
designed for individuals, not organizational petitioners for O and P
nonimmigrants because their ability to pay cannot be assessed under
those guidelines (e.g., receipt of a means-tested benefit, or household
income below 150% of the FPG). See 8 CFR 106.3(a)(1)(i).
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\170\ See E.O. 14012, 86 FR 8277 (Feb. 5, 2021).
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Comment: A commenter expressed concerns about the increasing
frequency of fee waivers because it is possible for some applicants to
obtain fee waivers through different forms and multiple filings. The
commenter also asserted that applicants abuse fee waivers, reasoning
that some individuals file multiple application types and request a fee
waiver for each application to avoid paying fees. Considering these
concerns, the commenter recommended that no fee waivers be given for
Forms N-400 and N-600.
Response: DHS believes the commenter's concern is unfounded. As
discussed in Section IV.E.7 of this preamble, fees waiver requests,
approvals, and foregone revenue have remained consistent over the last
10 years, and they are currently well below levels in FY 2015-17. See
Table 6. DHS disagrees that an applicant seeking multiple fee waivers
for different applications constitutes ``abuse'' because each
subsequent form is required to be accompanied by its own fee waiver
request, and each fee waiver request is considered on its own merits.
Multiple fee waiver requests may reflect an ongoing inability to pay
due to legitimate reasons such as low income or disability, which must
be documented in each request.
Comment: A commenter stated that fee waivers should not be
available for naturalization-related applications because U.S.
citizenship is a privilege, not a right.
Response: DHS disagrees with the premise of this comment. The INA
provides for the statutory, nondiscretionary right to apply for
naturalization. See INA secs. 316, 319, 328, and 329; 8 U.S.C. 1427,
1430, 1439, and 1440. DHS acknowledges the advantages that new citizens
obtain with naturalization, but also recognizes the significant
benefits that the United States obtains from the naturalization of new
citizens.\171\ In maintaining fee waivers and reduced fees for
naturalization-related applications, DHS seeks to promote
naturalization and immigrant integration.\172\ Because applicants may
be unable to pay at the time of naturalization, USCIS believes that
continuing to allow naturalization applicants to request fee waivers is
in the best interest of the program and consistent with the statute.
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\171\ See Holly Straut-Eppsteiner, Cong. Research Servs.,
R43366, ``U.S. Naturalization Policy,'' (May 2021), https://crsreports.congress.gov/product/pdf/R/R43366.
\172\ This is also consistent with E.O. 14012, 86 FR 8277 (Feb.
5, 2021).
---------------------------------------------------------------------------
Comment: One commenter stated there should be no full fee waivers
for individuals who are not asylum, VAWA, T visa, or U visa-based
requesters. The commenter expressed support for reduced fees but
reasoned that it would cause USCIS to continue dedicating extra time
and resources to verify and review the request for reduced fees. The
commenter suggested that, if USCIS must keep fee waiver options for
forms like the N-400 then it should temporarily cancel the option for 1
year to see if it results in a decrease in filings. The commenter
reasoned that, if there were a decrease, this would allow USCIS time to
adjudicate current backlogs and recoup the full amount of fees for all
new filings, and if there was a minimal decrease, it would inform
future discussion of minimizing fee waivers.
Response: DHS disagrees with the commenter's proposal to limit full
fee waivers to certain humanitarian categories and exclude others. DHS
believes that there are equally deserving humanitarian categories,
including refugees, Cuban Adjustment Act (CAA) and Haitian Refugee
Immigration Fairness Act (HRIFA) adjustment applicants, Special
Immigrant Afghans and Iraqis, SIJs, and TPS recipients. Furthermore, in
recognition of the benefits that the United States receives when
immigrants naturalize, DHS believes that waived and reduced fees should
be available to all naturalization applicants regardless of class of
admission. DHS disagrees with the commenter's rationale for temporarily
suspending Form N-400, Application for Naturalization, fee waivers
because this would arbitrarily burden immigrants who have recently
become eligible for naturalization but do not have the funds to pay the
fee. In FY 2021, USCIS waived 39,738 fees for Form N-400s and approved
2,606 reduced-fee requests, so DHS anticipates that a similar number of
applicants would be prevented from applying for naturalization were it
to temporarily suspend fee waivers and reductions for the Form N-400.
Instead of limiting fee waivers for Form N-400, DHS has decided to
raise the income threshold to 400 percent of the FPG. See 8 CFR
106.2(b)(3)(ii). As for the commenter's assertion that suspending fee
waivers and reductions would allow USCIS to decrease its backlog, we
believe this would only result in a surge of Form N-400 filings once
fee waivers and reductions were reinstituted. The commenter is correct
that USCIS dedicates time and resources to review requests for fee
waivers or reduced fees, but that effort is necessary and valuable for
enabling low-income applicants to access immigration benefits, while
also ensuring that only those who meet the requirements have their fees
waived. On March 29, 2022, USCIS announced new actions to reduce
backlogs, and announced that the Form N-400 cycle time goal is 6
months.\173\ In FY 2023,
[[Page 6257]]
USCIS greatly improved Form N-400 processing times to 6.3 months from
11.5 months in FY 2021.\174\
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\173\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, ``USCIS Announces New Actions to Reduce Backlogs,
Expand Premium Processing, and Provide Relief to Work Permit
Holders'' Mar. 29, 2022, https://www.uscis.gov/newsroom/news-releases/uscis-announces-new-actions-to-reduce-backlogs-expand-premium-processing-and-provide-relief-to-work.
\174\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, ``Historical National Median Processing Time (in
Months) for All USCIS Offices for Select Forms By Fiscal Year,''
https://egov.uscis.gov/processing-times/historic-pt (last visited
Aug. 18, 2023).
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3. Eligibility
a. Means-Tested Benefits
Comment: Noting that the proposed rule would accept a child's
receipt of public housing assistance as evidence of the parent's
eligibility for a fee waiver when the parent resides in the same
residence, commenters wrote that the proposal is limiting and requested
that USCIS include a child's receipt of other means-tested benefits,
including Medicaid, Supplemental Nutrition Assistance Program (SNAP),
Temporary Assistance for Needy Families (TANF), and Supplemental
Security Income (SSI) as acceptable evidence. A couple of these
commenters stated that all other qualifying means-tested benefits
programs similarly screen for financial hardship and inquire about
assets and income for the applicant's household, and therefore any
household member's receipt of a means-tested benefits should have the
same probative value as a child's receipt of public housing assistance
for fee waiver eligibility. One commenter said broadening the criteria
for fee-waiver eligibility based on means-tested benefits will save
USCIS time and effort adjudicating fee waiver requests and training
staff, as evidence of receipt of means-tested benefits is often simpler
to review than evidence of an entire household's income or financial
hardship. Another commenter concluded that DHS has not provided a
reasoned explanation of its choice to treat various public benefits
differently. One commenter stated that in many cases only the
applicant's child meets the criteria for a public benefit.
Response: After considering the comments on the proposed rule, DHS
has decided to modify the instructions for Form I-912 to accept
evidence of receipt of a means-tested benefit by a household child as
evidence of the parent's inability to pay because eligibility for these
means-tested benefits is dependent on household income. That would
entail public housing assistance, Medicaid, SNAP, TANF, and SSI,
although DHS is not codifying specific means-tested benefits and will
implement those as examples in guidance through the updated Form I-912
instructions. DHS has decided to limit this policy to household spouses
and children because other household members' eligibility for certain
means-tested benefits may not reflect the financial need of the fee
waiver requestor. For example, for SSI purposes an individual's deemed
income only includes the income of their spouse and parents with whom
they live and their Form I-864 sponsor.\175\ USCIS retains the
discretion to determine whether any requestor is eligible for a fee
waiver, including whether the means tested benefit qualifies as
provided in 8 CFR 106.1(f) and the Form I-912 form instructions.
---------------------------------------------------------------------------
\175\ Soc. Sec. Admin., ``Understanding Supplemental Security
Income, What Is Income?'' (2023), https://www.ssa.gov/ssi/text-income-ussi.htm (last visited Aug. 21, 2023).
---------------------------------------------------------------------------
Comment: A commenter recommended that USCIS expand evidence of
receipt of means-tested benefits to include a benefits card, in lieu of
the current requirements for a formal letter, notice, or other official
documents. The commenter said this change would alleviate the
administrative burden to those who would have to otherwise spend hours
struggling to obtain a formal notice of receipt.
Response: DHS already accepts a benefits card as evidence of a
means-tested benefit if the card shows the name of the benefit
recipient, the name of the agency granting the public benefit, the type
of benefit, and that the benefit is currently being received.\176\
While it is unfortunate that not all benefit cards provide information
about dates of receipt for the benefit, DHS believes that without this
information a benefits card is not sufficient evidence that the fee
waiver requestor currently receives the benefit.
---------------------------------------------------------------------------
\176\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, ``Additional Information on Filing a Fee
Waiver,'' https://www.uscis.gov/forms/filing-fees/additional-information-on-filing-a-fee-waiver (last updated Oct. 31, 2023); see
also U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland
Security, Policy Memorandum, PM-602-0011.1, ``Fee Waiver Guidelines
as Established by the final rule of the USCIS Fee Schedule;
Revisions to Adjudicator's Field Manual (AFM) Chapter 10.9, AFM
Update AD11-26'' (Mar. 13, 2011), https://www.uscis.gov/sites/default/files/document/memos/FeeWaiverGuidelines_Established_by_the_Final%20Rule_USCISFeeSchedule.pdf; U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland
Security, Form I-912, Instructions for Request for Fee Waiver 5
(Sept. 3, 2021), https://www.uscis.gov/sites/default/files/document/forms/i-912instr.pdf.
---------------------------------------------------------------------------
b. Household Income at or Below 150 Percent FPG, and Suggested Income
Levels
Comment: Some commenters wrote that they supported that DHS will
continue to use the FPG to determine income thresholds for fee waiver
purposes because it is a recognized national standard also used by
other Federal programs.
Response: DHS appreciates the support and will continue to use the
FPG as one means of assessing inability to pay.
Comment: Some commenters generally stated that the income
eligibility limit for a fee waiver at 150 percent of FPG is too low or
should be reconsidered. Multiple commenters suggested that USCIS
increase the income threshold to establish an inability to pay to at or
below 200 percent of the FPG, with some providing the following
rationale:
This would expand eligibility for those who earn too much
to qualify for a fee waiver but too little to be able to afford the
proposed fees.
This would more accurately reflect the realities of low-
income individuals, particularly as this rule seeks significant
increases for fees for integral applications, such as employment
authorization, permanent residence, and family petitions.
This would impact a significant portion of the community
of low-income immigrants. In 2019, immigrants who were at 150 percent
to 199 percent of the Federal poverty level constituted one-third, or
4,503,000, of all low-income immigrants in the country.
This would take into consideration applicants in states
such as California, where cost of living and the poverty threshold for
public benefit programs are higher.
Survivors of domestic violence, sexual assault, and human
trafficking may have a household income that puts them over 150 percent
of the FPG, but they may face economic obstacles due to their
victimization that impede their ability to pay immigration filing fees.
This would be consistent with the income guidelines that
federally funded legal aid agencies use per the Legal Services
Corporation's regulations.
Other commenters recommended that DHS increase the eligibility
threshold to at or below at least 300 percent of FPG. The commenters
said there are people who would not qualify under the proposed rule's
criteria and examples for ``financial hardship'' and are excluded from
waived or reduced fees because they make a little more than 200 percent
of FPG, despite their
[[Page 6258]]
economic struggles and bona fide ``inability to pay'' for current
immigration fees, let alone the proposed fee increases for citizenship,
adjustment of status, and other benefit requests.
Response: DHS acknowledges that certain individuals may continue to
face difficulty paying immigration fees despite having a household
income that is above 150 percent of the FPG. However, DHS declines to
further raise the income limit for fee waivers because increasing the
number of requests that do not pay fees would require even greater fee
increases for other fee-paying individuals, many of whom already face
significant increases in fees with this new rule. Otherwise, USCIS'
ability to maintain services and improve backlogs would be limited.
However, DHS notes that the current fee rule contains several
provisions that lessen the burdens for low-income filers. First, there
are other ways of demonstrating inability to pay besides household
income. An individual may demonstrate inability to pay if they or their
spouse or child living in the same household are currently receiving a
means-tested benefit, despite having household income over 150 percent
of the FPG. See 8 CFR 106.3(a)(1)(i)(A). DHS fee waiver guidance
provides that USCIS will accept Federal, State, or locally funded mean-
tested benefits. Income limits for certain means-tested benefits vary
by State and account for different costs of living.\177\ DHS also
accepts various forms of financial hardship as evidence of inability to
pay. See 8 CFR 106.3(a)(1)(i)(C). In addition, DHS has significantly
expanded the forms that are now fee exempt, which includes benefits for
victims of trafficking, violent crimes, and domestic violence. See
Table 5B. These requestors will not be required to request a fee waiver
for certain forms. Finally, as explained in section II.C.13 of this
preamble, DHS has significantly expanded the income limit under which
N-400 applicants qualify for a reduced fee from the originally proposed
200 percent limit to 400 percent of the FPG. See 8 CFR 106.2(b)(3)(ii).
---------------------------------------------------------------------------
\177\ See, e.g., Am. Council on Aging, ``Medicaid Eligibility
Income Chart by State'', July 2023, https://www.medicaidplanningassistance.org/medicaid-eligibility-income-chart/ (last updated July 10, 2023).
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Comment: Some commenters recommended adopting the Department of
Housing and Urban Development (HUD)'s measure of Median Family Income
(MFI) instead of the FPG to assess fee waiver eligibility based on
household income. The commenters said HUD's approach is more realistic
and equitable in determining who has an inability to pay because it
considers how an individual's geographic location impacts their cost of
living, whether they live in real poverty, and, ultimately, their
ability to afford an immigration benefit. The commenters disagreed with
DHS's rationales for using the FPG: (1) having a consistent national
standard, (2) maintaining consistency between fee waiver eligibility
and other Federal programs, and (3) avoiding confusion. Commenters
asserted that having a consistent national standard ``is not a
justification but instead a reason for questioning its use;'' that the
MFI is consistent with HUD's Federal programs and benefits; that
receipt of means-tested HUD benefits can demonstrate inability to pay
under DHS's other criteria; and that any potential confusion of
switching to MFI could be addressed through training and public
education campaigns.
Other commenters did not specifically advocate for MFI, but
generally stated that USCIS should assess inability to pay based on a
requestor's location and the high cost of living in certain areas of
the country. Another commenter stated that USCIS should use more
accurate means-tested standards without identifying why the current
standards are inaccurate or recommending specific alternative
standards.
Response: DHS recognizes that the cost of living in certain areas
of the country is greater than in others, and therefore people with
equal household incomes may face varying difficulty paying immigration
fees due to their geographic location. However, DHS believes that this
concern is mitigated by allowing receipt of a means-tested benefit to
show inability to pay since, as commenters note, the income thresholds
for some means-tested benefits vary by State and locality. Therefore,
individuals who qualify for a means-tested benefit due to their higher
cost of living may still qualify for a fee waiver, even if their
household income is above 150 percent of the FPG. This concern is also
mitigated for residents of Alaska and Hawaii, who have unique FPG
charts.\178\
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\178\ U.S. Dept of Health & Human Servs., ``HHS Poverty
Guidelines for 2023,'' https://aspe.hhs.gov/topics/poverty-economic-mobility/poverty-guidelines (last visited Aug. 21, 2023).
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DHS believes that the benefits of using FPG outweigh those of HUD's
median family income (MFI) when assessing an individual's ability to
pay. Despite comments to the contrary, DHS believes it is important to
have a consistent national standard for the income threshold. Relying
on a single, uniform standard reduces administrative costs in
comparison to HUD's MFI, which would require requestors, legal service
providers, and adjudicators to calculate fee waiver eligibility based
on geographic area. Requestors often change their geographic location
between filing for immigration benefits, and a consistent national
standard would avoid potentially complicated inquiries into which
geographic location is more appropriate in assessing their ability to
pay. A consistent national standard also removes the incentive to
misrepresent one's address to obtain a fee waiver. While DHS recognizes
that MFI is used effectively for administering HUD's Federal programs
and benefits, Department of Health and Human Services' (HHS) FPG is
used more broadly throughout the Federal Government.\179\ Using FPG
also promotes internal consistency within USCIS since this measure is
statutorily required for other eligibility determinations. See INA
secs. 204(f)(4)(A)(ii) and 213A(h), 8 U.S.C. 1154(f)(4)(A)(ii) and
1183a(h). While DHS acknowledges that it is possible to mitigate
confusion through training and public engagement, a more complicated
legal determination will still tend to result in a higher rate of
erroneous or lengthy filings and adjudications. Noting that many low-
income requestors may lack access to legal assistance and face
additional barriers to properly filing immigration forms, DHS believes
that this population is better served by keeping the fee waiver process
simple by using the FPG. Finally, DHS notes that using HUD MFI by State
or county would not guarantee equitable results, since the cost of
living can vary greatly within individual States and counties.
---------------------------------------------------------------------------
\179\ See, e.g., Inst. for Research on Poverty, ``What Are
Poverty Thresholds And Poverty Guidelines?,'' https://www.irp.wisc.edu/resources/what-are-poverty-thresholds-and-poverty-guidelines/ (last visited Aug. 14, 2023).
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Comment: A commenter asked USCIS to begin using the Supplemental
Poverty Measure (SPM) instead of the Federal Poverty Level (FPL) to
determine who qualifies for a fee waiver, without explaining why the
SPM is preferable. The commenter recommended that fee waivers be made
available to any household earning less than 200 percent of the SPM.
Response: DHS declines to adopt the SPM for assessing eligibility
for fee waivers because the SPM was not designed as a tool for
assessing individual eligibility for public benefits. ``The SPM is
considered a research
[[Page 6259]]
measure, because it is designed to be updated as techniques to quantify
poverty and data sources improve over time, and because it was not
intended to replace either official poverty statistics or eligibility
criteria for anti-poverty assistance programs.'' \180\ Determining
whether a particular individual falls above or below the SPM would
require a complex calculation of numerous factors that would increase
administrative costs and be susceptible to error.\181\
---------------------------------------------------------------------------
\180\ Joseph Dalaker, Cong. Research Serv., R45031, ``The
Supplemental Poverty Measure: Its Core Concepts, Development, and
Use,'' (July 19, 2022), https://crsreports.congress.gov/product/pdf/
R/
R45031#:~:text=The%20Supplemental%20Poverty%20Measure%20(SPM,a%20spec
ified%20standard%20of%20living.
\181\ See generally Joseph Dalaker, Cong. Research Serv.,
R45031, ``The Supplemental Poverty Measure: Its Core Concepts,
Development, and Use,'' (July 19, 2022), https://
crsreports.congress.gov/product/pdf/R/
R45031#:~:text=The%20Supplemental%20Poverty%20Measure%20(SPM,a%20spec
ified%20standard%20of%20living.
---------------------------------------------------------------------------
Comment: A commenter noted that even though there is no requirement
that an individual submit their taxes, USCIS routinely denies fee
waivers based on applicants' statements, where taxes are unavailable,
or where the taxes indicate the applicant is under the poverty
threshold. Another commenter similarly stated that, in practice, fee
waivers are mostly denied when sending in pay stubs or W-2 forms. The
commenter further remarked that fee waiver adjudicators routinely
request only a tax return be submitted to establish income. The
commenter stated that the rule should more explicitly clarify that
there is no requirement to submit a tax return to document fee waiver
eligibility.
Response: DHS declines to modify the rule as recommended by the
commenter because it is unnecessary. Per the revisions to Form I-912
published with this rule, an individual requesting a fee waiver may
establish their household income through different forms of
documentation, including Federal income tax returns, a W-2, or
paystubs. USCIS denies fee waiver requests that are incomplete and does
not issue RFEs for Form I-912. In FY 2022, USCIS approved 84 percent of
fee waiver requests (448,702 out of 532,417). See Table 6.
c. Financial Hardship
Comment: A commenter remarked that fee waivers are ``almost
impossible'' to obtain based on hardship, regardless of the quality or
amount of documentation submitted to support such a request. Another
commenter stated that requests for fee waivers based on ``financial
hardship'' for low-income and no-income individuals have been
universally denied, without clarity provided as to the specific reasons
for denial or what evidence would be considered sufficient.
Response: Although USCIS does not have approval or rejection data
related to the specific criteria for fee waivers, DHS notes that in FY
2022, USCIS approved 84 percent of fee waiver requests (448,702 out of
532,417). See Table 6. To help prevent erroneous denials of fee waiver
requests based on financial hardship, the revised Form I-912 contains a
non-exhaustive list of examples of causes of financial hardship. DHS
intends to issue guidance clarifying that the burden of proof for
inability to pay is a preponderance of the evidence, and that an
officer may grant a request for fee waiver so long as the available
documentation supports that the requestor is more likely than not
unable to pay the fee. USCIS regularly trains its staff to avoid
erroneous denials of fee waiver requests.
Comment: A commenter supported the proposal to provide USCIS
officers a larger, non-exhaustive list of circumstances that may
constitute a financial hardship. The commenter stated that its staff
often receive fee waiver denials despite having provided evidence that
clearly points to a significant financial hardship. The commenter said
that, by adding such obvious forms of hardship as ``significant loss of
work hours and wages,'' ``natural disaster,'' and ``victimization,''
DHS will provide much-needed guidance to both applicants and USCIS
officers. In addition, the commenter stated that the proposal to
include a catch-all category of hardship for ``[s]ituations that could
not normally be expected in the regular course of life events'' will
also provide applicants a more reliable basis on which to demonstrate
that a particular event has led to hardship.
Another commenter also supported the proposed rule's suggested
evidence of financial hardship, including an affidavit from a religious
institution, nonprofit, hospital, or community-based organization
verifying the person is currently receiving some benefit or support
from that entity and attesting to the requestor's financial situation.
The commenter recommended that such affidavits include those from legal
aid agencies serving low-income populations, documenting their
assessment that a requestor is low-income with minimal assets and
consequently eligible for their free legal services. In addition, the
commenter said the term ``support services'' should be understood to
include such legal services, as many legal aid agencies provide
holistic services, which include helping clients access public
benefits, health care, and housing. Moreover, the commenter said
including legal services as ``support services'' would lead to more
consistent adjudication of fee waiver requests for low-income
applicants.
Response: DHS notes that, the current, proposed, and final
instructions for Form I-912 permit that an affidavit describing the
person's financial situation from a legal aid agency serving low-income
populations may be acceptable evidence of a requestor's financial
situation if they lack income. See 88 FR 402, 458 (Jan. 4, 2023) (``If
the requestor is receiving support services, an affidavit from a
religious institution, nonprofit, hospital, or community-based
organization verifying the person is currently receiving some benefit
or support from that entity and attesting to the requestor's financial
situation.'').
Comment: One commenter suggested that mental or physical illness
impacting an applicant's ability to work and pay the filing fee be
explicitly included as a factor or incorporated into the proposed
factors of ``victimization'' or ``situations that could not normally be
expected in the regular course of life events.'' Otherwise, the rule
could be read to exclude illnesses causing serious financial hardship
and inability to pay filing fees if they are not an ``emergency or
catastrophic.''
Response: Upon further review, DHS has incorporated this
recommendation into the revised Form I-912 instructions. DHS believes
that a mental or physical illness that impacts an individual's ability
to work may amount to a similar level of financial hardship (depending
on the individual's household income, financial assets, and other
factors) as other examples listed in the form instructions, and
therefore may qualify as a financial hardship with documentation of
inability to work and information on income.
d. Other/General Comments on Criteria and Burden of Proof
Comment: Several commenters stated that there are many people who
do not qualify for fee waivers and do not have the financial means to
afford the fees. Another commenter said, at a minimum, USCIS should
offset the proposed fee increases by raising the eligibility threshold
for fee waivers, and then provide means-tested fee waivers.
Additionally, an individual commenter stated that underprivileged
families
[[Page 6260]]
should only have to pay a reduced fee or be given a fee waiver.
Response: DHS acknowledges commenters' concerns and believes that
this final rule contains multiple provisions that increase the
availability of fee waivers and reductions for those unable to pay. The
rule codifies DHS policy guidance that a requestor will generally be
found unable to pay if they receive a means-tested benefit, have a
household income below 150 percent of the FPG, or are experiencing
financial hardship. See 8 CFR 106.3(a)(1)(i). As discussed above, this
rule broadens the ways that a requestor can establish eligibility
through a fee waiver by allowing a household child's receipt of certain
means-tested public benefits to demonstrate the parent's inability to
pay. The final rule reduces the N-400 fee for applicants whose
household income is less than or equal to 400 percent of the FPG. See 8
CFR 106.2(b)(3)(ii). The revised Form I-912 offers additional guidance
on the types of evidence of financial hardship, which DHS believes will
provide flexibility and reduce the burden for individuals seeking fee
waivers. The form also clarifies when certain household members' income
will not be considered in assessing whether a requestor is unable to
pay. The final rule further addresses individuals' inability to pay by
increasing the number of forms that are fee exempt. See Table 5B.
Comment: A couple of commenters supported DHS continuing to base
inability to pay on a ``range of evidentiary standards,'' including
means-tested benefits, household income using the FPG, or financial
hardship, but said such standards should not be applied categorically
and must come with adequate guidance. The commenters said the current
regulation provides insufficient guidance regarding evidence, given
that many applicants for fee waivers are unlikely to have significant
evidence, or the type of evidence USCIS requests to prove lack of
income (as proving lack of income involves proving a negative). They
said DHS should continue to allow officers to grant a request for a fee
waiver in the absence of some of this documentation so long as the
available documentation supports that the requestor is more likely than
not unable to pay the fee, as allowed under the preponderance of the
evidence standard. One of these commenters said more guidance should be
provided regarding documentation, including training officers in the
types of situations that, while they may not lend to written evidence
that can be submitted to USCIS, support the need for a fee waiver as
well as the underlying humanitarian claim. The commenter said DHS
should not only provide a list of possible evidence that includes both
common proofs of financial need, such as taxes, pay stubs, and bills,
but also informal types of acceptable evidence, such as written letters
from roommates, affidavits from social or legal services organizations
that condition services on lack of income, handwritten bills, and the
like. Moreover, the commenter said DHS should also provide clear
instructions that an officer can or should waive a fee upon a sworn
statement from the applicant that they are a victim of abuse or
exploitation. Another commenter said the rule should specify preferred
and alternative types of evidence rather than mandatory evidence.
Another commenter suggested USCIS clarify in the form instructions and
guidance that these documents are non-exhaustive and that USCIS will
consider other relevant evidence. A commenter stated fee waivers should
be readily accessible with reasonable documentary requirements but did
not specify what requirements they recommend.
Response: Under the current fee rule and USCIS policy, no type of
evidence is categorically required to show eligibility for a fee
waiver. The rule provides three different means of establishing
inability to pay, see 8 CFR 106.3(a)(1)(i), and the Form I-912
instructions offer multiple examples of evidence that can be submitted
in support of a fee waiver request. USCIS guidance will clarify that
individuals seeking a fee waiver only have to establish eligibility by
a preponderance of the evidence. See 88 FR 402, 458 (Jan. 4, 2023).
However, DHS declines to adopt the commenter's recommended language
that certain required documents are non-exhaustive, as this would be
inappropriate for certain ways of proving inability to pay. For
example, to confirm receipt of a means-tested benefit, a requestor is
required to submit documentation that they are currently receiving a
means-tested benefit that includes their name, the agency granting the
benefit, type of benefit, and indication that the benefit is currently
being received.
Comment: A couple of commenters wrote that they supported the
implementation of more descriptive guidelines for the information
collection requirements for the Form I-912. One commenter remarked that
the new requirements are more realistic and flexible for applicants,
reasoning that lower income applicants run into challenges when
collecting documentation to support their fee waiver, for example by
lacking a safe place to store confidential information. The commenter
further remarked that, coupled with the preponderance of the evidence
standard, evidentiary guidance will also help potential applicants
understand upfront whether they qualify for a fee waiver. Another
commenter agreed with DHS broadening the list of documents that are
sufficient to show that a person does not have any income--a
circumstance that is frequently difficult to document--because it will
reduce the documentary burden on applicants in the most precarious
financial situations, while also reducing the burden on USCIS to review
repeated fee waiver requests after denials.
Response: DHS appreciates the commenters' feedback.
Comment: A commenter stated that, while USCIS may waive the fee for
certain immigration benefit requests when the individual requesting the
benefit is unable to pay the fee, the rules provide no certainty even
when the applicant provides the very types of inability-to-pay
information identified in the regulations--applicants are merely
``eligible'' for a fee waiver if they meet the criteria. The commenter
asked USCIS to modify the rule to clarify that ``evidence of any of the
three grounds is conclusive proof of eligibility for a fee waiver.''
Response: DHS understands that the commenter wants more certainty
for when a requestor will or will not have their fee waived, but we
decline to adopt the commenter's proposal to treat any evidence of one
of the three grounds as conclusive proof.
Even though the fee statute does not mention fee waivers, DHS has
interpreted the discretion it vests in the agency to allow fee
exemptions or waivers subject to certain conditions or criteria.
Section 245(l)(7) of the INA requires DHS to permit certain requestors
(those applying ``for relief through final adjudication of the
adjustment of status for a VAWA self-petitioner and for relief under
sections 1101(a)(15)(T), 1101(a)(15)(U), 1105a, 1229b(b)(2), and
1254a(a)(3) of [Title 8]'') to ``apply for'' fee waivers. 8 U.S.C.
1255(l)(7) (emphasis added). The statute, however, does not specify any
standard for approving applications for such discretionary waivers.
In this rule, discretionary waivers of fees are limited to
situations where the party requesting the benefit is unable to pay the
prescribed fee. 8 CFR 106.3(a)(1)(i). A person can demonstrate an
inability to pay the fee by establishing receipt of a means-tested
benefit at the time of filing, household income at or below 150 percent
of the
[[Page 6261]]
FPG at the time of filing, or extreme financial hardship due to
extraordinary expenses or other circumstances that render the
individual unable to pay the fee. 8 CFR 106.3(a)(1)(i). Finally, a
person must submit a request for a fee waiver on the form prescribed by
USCIS in accordance with the instructions on the form. 8 CFR
106.3(a)(2).
USCIS generally applies a burden of proof of preponderance of the
evidence for the information provided with immigration benefit
requests.\182\ While DHS has increased the availability of fee waivers
and clarified their requirements in this rule, it remains the
requestor's burden to establish that they are more likely than not
eligible for a fee waiver. See 88 FR 458. Because the fee statute does
not specify any standard for approving applications for such
discretionary waivers, DHS will retain the ability to determine that an
individual who meets the eligibility requirements for a fee waiver does
not merit a waiver in the exercise of discretion. See 8 CFR 106.3(a).
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\182\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, ``USCIS Policy Manual,'' Vol. 1, ``General
Policies and Procedures,'' Part E, ``Adjudications,'' Chp. 4,
``Burdens and Standards of Proof,'' https://www.uscis.gov/policy-manual/volume-1-part-e-chapter-4 (last updated Nov. 8, 2023).
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Comment: Commenters stated that DHS should modify its rules so that
a fee waiver request would be automatically approved if not decided
within 45 days.
Response: DHS declines to impose the commenter's deadline on USCIS
adjudication of fee waiver requests. Imposing an arbitrary deadline on
fee waiver reviews would require USCIS to allocate limited resources to
prioritize fee waiver requests above most other adjudicative actions to
prevent lost revenue and risk its ability to maintain adequate service
levels. USCIS must retain the flexibility to assign resources where
they are needed. Although USCIS received 532,417 fee waivers in FY
2022, an average of over 2,000 per workday, most fee waivers are
adjudicated within 8 to 10 days at the Lockboxes and 90 percent are
completed within 15 days. DHS acknowledges that some fee waiver
requests took longer to adjudicate during the COVID-19 pandemic, but
DHS is working diligently to deliver timely service.
Comment: Multiple commenters said fee waiver eligibility based on
the stipulated bases should be incorporated into the regulatory text. A
commenter said the preamble recites the current three grounds for fee
waivers since 2010 but the actual proposed code section only refers to
inability to pay and does not specify these specific grounds. To
prevent future confusion or interpretations, the commenter said the
three grounds should be mentioned in the code itself since the preamble
is not legally enforceable. Likewise, another commenter recommended
that USCIS include the standards in the final rule so that they are
codified and less susceptible to being modified by a future
administration. The commenter said doing so would also formalize the
adoption of such standards, which have been in use for over a decade. A
commenter asked USCIS to incorporate the eligibility criteria into the
Policy Manual at Volume 1, Part B, Chapter 4, as well as the proposed
regulations.
Response: After considering the public comments, DHS has decided to
codify the three means of demonstrating eligibility for a fee waiver at
8 CFR 106.3(a)(1)(i). USCIS intends to update the Policy Manual to
reflect this when the final rule takes effect. However, while meeting
any of the three criteria will make a requestor presumptively eligible
for a fee waiver, USCIS will still retain the discretion to approve or
deny a fee waiver. Denial of a fee waiver will result in rejection of a
benefit request and neither the fee waiver denial nor the rejection may
be appealed.
Comment: A commenter suggested that USCIS include receipt of
financial aid through the Free Application for Federal Student Aid
(FAFSA) as an additional way to prove eligibility for a fee waiver.
Response: DHS declines to adopt the commenter's proposal because
there are many types of student financial aid obtainable by filing the
FAFSA that do not reflect significant financial need and may not meet
the definition of means-tested benefit as stated in this final rule,
see 8 CFR 106.1(f)(3), such as grants, merit scholarships, and student
loans.\183\
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\183\ See U.S. Dep't of Educ., ``Federal Student Aid, Types of
Financial Aid: Loans, Grants, and Work-Study Programs,'' https://studentaid.gov/understand-aid/types (last visited Aug. 15, 2023).
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Comment: Multiple commenters recommended that USCIS adopt an
appeals or formal review process for fee waiver denials.
Response: DHS also declines to adopt an appeals process for fee
waiver denials because this would compound the time and costs of
adjudicating fee-waivers and require that additional costs be
transferred to fee-paying requestors. Those who believe that their fee
waiver request was wrongfully denied may refile their request.
4. Authority
Comment: One commenter recommended that USCIS limit the Director of
USCIS' discretion to authorize additional fee waivers, as put forth in
the 2019/2020 fee rule. The commenter remarked that limiting such
discretion is necessary to limit ``politically motivated abuse'' of fee
waiver eligibility policies and protect fee-paying applicants from
unfair cost increases to cover such abuse.
Response: This rule retains the feature of the prior 2019/2020 fee
rule that permits the USCIS Director to delegate the discretionary fee
waiver authority only to the USCIS Deputy Director.\184\ USCIS declines
to adopt the additional restrictions on discretionary waiver authority
that were contained in the 2019/2020 fee rule. The commenter did not
cite any past examples of ``politically motivated abuse'' of this
discretionary authority. DHS believes that maintaining the authority
for this extraordinary relief with the leaders of USCIS, coupled with
the requirement that the authority only be exercised when consistent
with the law, will ensure that it is administered consistently, timely,
and responsibly.
---------------------------------------------------------------------------
\184\ Compare 8 CFR 106.3(c), with 8 CFR 106.3(b) (Oct. 2,
2020).
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5. Requiring Submission of Form I-912
Comment: Multiple commenters expressed concern that requiring the
Form I-912 and not allowing applicants to make the request for a fee
waiver via a written request would create an additional burden for
applicants. One commenter requested that fee waivers remain expansive
such that any written requests remain permitted. Some commenters
asserted that, if an individual can successfully demonstrate the need
for the fee waiver via a written request, USCIS should continue to
accept them, and that requiring Form I-912 reduces flexibility for
applicants with special circumstances. One commenter asserted that
there would be a substantial time burden to complete the Form I-912 in
lieu of an affidavit regarding their client's income and expenses,
while another commented referred to fee waiver process as long and
difficult.'' Another commenter said that printing, translating,
completing, and sending the form requires additional costs that
applicants who are in financial need likely do not have. Another
commenter added that certain requestors may lack access to printers,
internet services, or other infrastructure. The commenter also stated
that the proposed Form I-912 is a complex nine-page form, with eleven
pages of
[[Page 6262]]
instructions, and several of the form's questions may not apply to the
requestor or require significant additional explanation that is better
suited for an affidavit. The commenter added that requiring Form I-912
creates an unnecessary burden on pro se survivors, survivors with
limited English proficiency, and high caseload service providers. A
different commenter said the proposal places an undue burden especially
on the most vulnerable groups who would otherwise qualify for
immigration benefits. Other commenters said that requiring Form I-912
would disproportionally affect pro se applicants and those with limit
English skills, and therefore allowing fee waiver requests without Form
I-912 would align more closely with the ``inability to pay'' standard.
Another commenter predicted that the proposed rule would require USCIS
to scan and review extra pages of the Form I-912, and that USCIS would
incur significant mailing costs due to rejections resulting from
confusion around the complex form. One commenter asserted that allowing
individuals to request a fee waiver via written request instead of Form
I-912 would address the burden of COVID-19 on undocumented and
immigrant communities that require access to forms to receive USCIS
benefits.
Response: After considering public comments in response to the
proposed requirement to submit Form I-912, DHS will continue to allow
written statements in lieu of submitting Form I-912. DHS acknowledges
that requiring submission of Form I-912 could create an additional
burden on certain requestors, particularly those struggling
financially. See 88 FR 402, 458 (Jan. 4, 2023).
DHS also recognizes that some requestors may experience an extra
burden due to that printing, translating, completing, and sending the
form requires additional costs that applicants, particularly those who
are struggling financially. DHS also recognizes these applicants may
need additional flexibilities, which may improve access to immigration
benefits consistent with E.O. 14012, 86 FR 8277 (Feb. 5, 2021). Because
less than one percent of fee waivers currently are requested by written
request instead of Form I-912, it is unlikely that continuing to allow
written requests will significantly impact USCIS operations. See 88 FR
402, 458 (Jan. 4, 2023). For these reasons, this final rule maintains
the current effective regulation that allows requestors to obtain a fee
waiver by written request without filing Form I-912.
Comment: In response to the proposed rule's statement that more
than 99 percent of fee waiver requested are submitted with Form I-912,
multiple commenters stated it is preferable that the remaining
requestors receive an RFE instead of a denial. These commenters
suggested that these RFEs be accompanied by information related to the
Form I-912 ``as a means of proactively addressing potential confusion''
regarding eligibility criteria. The commenters stated that this would
be more consistent with E.O. 14012 and better facilitate access to
immigration benefits.
Response: For the reasons noted previously, this final rule allows
submission of fee waiver requests via written request instead of using
Form I-912. However, DHS will not issue RFEs in response to
insufficient fee waiver requests. Holding and monitoring cases where an
RFE was sent for a timely response would add burden to what is an
already burdensome process for USCIS. USCIS will continue to review
training and decision notices to improve adjudications of fee waivers
and provide additional information for requestors.\185\
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\185\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, ``Additional Information on Filing a Reduced Fee
Request,'' https://www.uscis.gov/forms/filing-fees/additional-information-on-filing-a-reduced-fee-request (last updated Oct. 31,
2023).
---------------------------------------------------------------------------
Comment: Multiple commenters recommended improvements to the Form
I-912. One commenter stated that the form is inefficient and suggested
reducing the number of unused pages by making them attachments rather
than sections. Another commenter recommended that USCIS eliminate
questions on the Form I-912 that are not relevant to fee waiver
eligibility and ensure that supporting documentation is considered
liberally. For example, the commenter suggested two questions be
eliminated: Part 1, Question 2, which requests the applicant's
immigrant or non-immigrant status; and Part 2, Question 6, which
requests the applicant's Social Security number.
Response: DHS appreciates commenters' feedback regarding the length
of Form I-912, Request for Fee Waiver. Depending on their ground of
eligibility, as indicated on the form and instructions, requestors do
not need to fill out every section of Form I-912. However, DHS does not
believe that these unused sections, which can be easily skipped, create
a substantial paperwork burden for requestors. Requiring requestors to
locate and attach a separate addendum depending on their ground of
eligibility could create a greater paperwork burden. DHS notes that
immigration status is relevant to eligibility because, for example,
some fee waivers are specific to the requestor's immigration status.
USCIS is revising the USCIS Form I-912 to reduce the time and cost
burden to respondents. The Social Security number data field will be
removed as part of those edits. DHS believes that a requestor's Social
Security number no longer serves a purpose because Internal Revenue
Service (IRS) tax return and tax account transcripts redact the filer's
Social Security number. For further information on compliance with the
Paperwork Reduction Act, see Section V.J of this preamble.
Comment: Another commenter wrote that low-income naturalization
applicants who currently require a fee waiver are barred from applying
for naturalization online because the Form I-912 cannot be filed
online. The commenter stated as a matter of equity, both online and
paper filings should be available to everyone, regardless of their
income status. The commenter concluded that without an option for
online filing of the Form I-912, paper filings for the Form N-400 would
continue to cause inefficiencies.
Response: USCIS continues to work on incorporating Form I-912 and
all forms into its online filing platforms.
Comment: A commenter stated that the Form I-912 is not statutorily
required. The commenter further remarked that USCIS does not point to
evidence that requiring Form I-912 for fee waiver requests produce more
consistent results or relevant evidence in assisting fee waiver
determinations.
Response: For the reasons noted previously, this final rule allows
submission of fee waiver requests via written request instead of using
Form I-912. With regards to the assertions made by the commenter, DHS
notes the following: The INA authorizes the Secretary to ``prescribe
such forms of [...] papers; issue such instructions; and perform such
other acts as he deems necessary for carrying out his authority.'' INA
sec. 103(a)(3), 8 U.S.C. 1103(a)(3). The Form I-912 and other USCIS
forms are used to solicit information relevant to benefit requests and
facilitate standardized adjudication in a timely manner. As previously
indicated, most requestors submit Form I-912 to request fee waivers. A
2019 paper showed that standardization of the fee waiver for
citizenship applications in 2010 raised naturalization rates among low-
income immigrants, and these gains were particularly sizable among
those
[[Page 6263]]
immigrants who typically face higher hurdles to accessing
citizenship.\186\
---------------------------------------------------------------------------
\186\ Vasil Yasenov, et al., ``Standardizing the fee-waiver
application increased naturalization rates of low-income
immigrants,'' 116 (34) Proc. Nat'l Acad. Sci. U.S. 16768 (2019).
---------------------------------------------------------------------------
Comment: A commenter recognized the need to create a more uniform
policy for adjudicating requests for fee waivers. However, the
commenter expressed concern that the list of expenses outlined in the
Form I-912 fails to take into consideration necessary expenses often
incurred by their clients and does not fairly represent their
``inability to pay'' the filing fees required. The commenter did not
indicate what additional expenses should be included on the form.
Response: DHS interpreters this comment to refer to Part 6, Item 3
(``Total Monthly Expenses and Liabilities'') of Form I-912. DHS notes
that the list of expenses includes a check box for ``other,'' and
additional lines where requestors can list expenses not included in the
list. Requestors can also include additional information about expenses
in Part 11 (``Additional Information'').
6. Evidence for VAWA, T, and U Requestors
Comment: Multiple commenters wrote in support of fee waivers for
VAWA self-petitioners, as well as for T and U nonimmigrant status
requestors. One commenter wrote that fee waivers help remove forms of
coercion and control by human traffickers and abusive individuals by
providing life-saving opportunities for victims of crime to escape
these situations and access long-term stability. The commenter remarked
that these benefits allow victims of crime to support law enforcement
investigations that help prevent and punish serious crimes. Another
commenter stated the importance of fee waivers as a tool for survivors
to recover from financial abuse and that fee waivers make it possible
for survivors to ensure their safety or necessities when applying for
immigration relief.
Response: DHS agrees that the availability of fee waivers and fee
exemptions for vulnerable populations is important. DHS remains
committed to the goals of its humanitarian programs and to providing
fee waivers and fee exemptions for these populations as outlined in
this final rule. See 8 CFR 106.3.
Comment: One commenter expressed support for USCIS' proposed
clarification that an applicant is eligible for a fee waiver where they
demonstrate inability to pay by a preponderance of the evidence.
However, the commenter asked USCIS to adjudicate fee waiver requests
for immigration benefits associated with or based on a pending or
approved petition or application for VAWA benefits or T or U
nonimmigrant status under the ``any credible evidence'' standard. The
commenter concluded that the evidentiary standard for receipt of a fee
waiver should not be more stringent than the evidentiary standard for
the legal protections Congress created for survivors under VAWA and the
Victims of Trafficking and Violence Protection Act of 2000 (VTVPA).
Response: DHS acknowledges the difficulties that VAWA, T, and U
requestors may face in obtaining evidence in support of fee waiver
requests, which is why DHS has increased the number of fee-exempt forms
for these groups in the final rule. See Table 5B; 8 CFR 106.3(b). For
these fee-exempt requests, VAWA, T, and U requestors do not need to
sustain any burden of proof to avoid paying a fee, which is consistent
with the VTVPA. However, DHS believes that ``preponderance of the
evidence'' remains the appropriate standard for adjudicating other fee
waiver requests by VAWA, T, and U requestors. Most USCIS fee waiver
requests involve naturalization and citizenship-based applications (N-
Forms), which are filed multiple years after the requestor has received
their protection-based form of relief and obtained LPR status. Mindful
of the difficulties that victim-based categories may continue to face
in obtaining evidence to support fee waiver requests, DHS has provided
flexibilities for VAWA, T, and U populations in requesting fee waivers.
For example, the revised Form I-912 instructions issued with this rule
provide that if a household member is an abuser or human trafficker,
then their income will not be included in measuring the requestor's
household income. In addition, the instructions also list victimization
as an example of financial hardship causing a requestor to be unable to
pay. Further, if a VAWA, T, or U requestor is unable to obtain
documentation, they can explain why and submit other evidence to
demonstrate their eligibility as provided in the Form I-912
instructions. However, the burden of proof remains on the individual
who is requesting a fee waiver and DHS will not presume that a benefit
request that is not already exempt from a fee should automatically
receive a fee waiver.
7. Cost of Fee Waivers
Comment: One commenter stated that, in recent years, USCIS has
transferred significant costs to fee-paying applicants and
beneficiaries as the result of an overbroad fee waiver policy, and
estimated foregone revenue has increased significantly. The commenter
said that, in this proposed rule, DHS did not report how much revenue
USCIS anticipates foregoing because of fee waiver projections.
Response: DHS believes that continued fee waivers for certain
populations provides a crucial avenue for those who would have
otherwise not been able to submit a request. Table 6 below summarizes
historical fee waiver volume. Contrary to the commenter's assertion,
waived fees as a proportion of IEFA revenue has been stable over time,
and current levels are significantly below those in FYs 2015-2017. This
does not demonstrate an overbroad fee waiver policy where waived fees
have increased significantly.
[[Page 6264]]
[GRAPHIC] [TIFF OMITTED] TR31JA24.027
Comment: A commenter requested that USCIS ensure that fee-paying
applicants do not bear the costs of immigration benefit requests where
fee waivers are inappropriate or unnecessary. The commenter recommended
that USCIS adopt a different approach, consistent with the
``beneficiary-pays'' principle, that considers whether a fee waiver is
either statutorily required or otherwise appropriate given the nature
of the immigration benefit sought, particularly whether such
beneficiaries are subject to the public charge ground of
inadmissibility. The commenter wrote that INA sec. 286(m), 8 U.S.C.
1356(m), does not require that DHS provide any services without charge,
but that the TVPRA requires DHS to permit fee waivers for certain
applications. The commenter stated that USCIS should limit fee waivers
to immigration benefits for which USCIS is required by law to consider
a fee waiver, as was put forth in the 2019/2020 fee rule. They added
that USCIS could allow fee waivers for humanitarian programs and
applicants not subject to the public charge ground of inadmissibility
or affidavit of support requirements under INA sec. 213A, 8 U.S.C.
1183a, including petitioners and recipients of Special Immigrant
Juvenile (SIJ) classification and those classified as Special
Immigrants based on an approved Form I-360. The commenter stated that
USCIS should continue to preclude fee waivers from individuals that are
required to have financial means for the status or benefit sought.
Another commenter asserted that it is unfair that one out of eight
petitions receive a fee exemption or waiver, and that humanitarian
goals should be funded by Congress or DHS general appropriations rather
than shifting lost revenue to other program fees.
---------------------------------------------------------------------------
\187\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, ``Use of Fee Waivers, Fiscal Year 2023 Report to
Congress'' (June 20, 2023), https://www.dhs.gov/sites/default/files/2023-08/23_0727_uscis_use_of_fee_waivers_q1.pdf. Not all fee waiver
applications are adjudicated in the same fiscal year that they are
received. Likewise, not all approvals and denials occur in the same
fiscal year in which a fee waiver request is filed. Thus, the number
of approvals and denials does not equal fee waiver request receipts.
\188\ Note that the budgetary impact of fee waivers is less than
the total amount of waived fees, as it would be unreasonable to
expect the same volume of filings absent the availability of fee
waivers. Available USCIS fee waiver data lack the granularity
necessary to delineate waived fees in cases of forms with multiple
filing fees. The higher fee is assumed to estimate the waived fees.
Additionally, the fee schedule change in December 2016 and the
timing of fee waiver approvals may slightly skew FY 2017 waived fee
estimates because of fee waiver adjudication timeframes (see
footnote 16). Finally, automatic biometric services fee waivers
associated with underlying forms that require biometrics are not
captured adequately and are underreported.
---------------------------------------------------------------------------
Response: For reasons discussed in the proposed rule, see 88 FR
402, 424-426 (Jan. 4, 2023), and in section IV.C.4 of this preamble,
DHS has decided to shift away from the beneficiary-pays model that was
the primary objective of the 2019/2020 fee rule, and more toward the
ability-to-pay approach that has historically guided USCIS fee
schedules. While INA sec. 286(m), 8 U.S.C. 1356(m), does not require
that DHS provide any services without charge, the statute contemplates
that DHS would regularly do so for asylees and similarly situated
classes of applicants. DHS considers this to be the more equitable
approach in setting fees. In deciding which forms should be eligible
for a fee waiver, DHS considered whether each waiver is statutorily
required or otherwise appropriate given the nature of the immigration
benefit sought, including whether the requestor would be subject to the
public charge ground of inadmissibility. A fee waiver is unavailable in
the case of immigration benefit requests that require demonstration of
the applicant's ability to support themself, or that are based on a
substantial financial investment by the petitioner.\189\ Most fee-
waivable forms involve humanitarian immigration categories in
recognition of the financial difficulties faced by members of these
groups.\190\ DHS has generally made citizenship and naturalization
forms eligible for waived and reduced fees in recognition of the social
and economic benefits that the United States receives from new
citizens.
---------------------------------------------------------------------------
\189\ In 2007, regulations considerably limited which
application types could apply for fee waivers from almost all of
them to roughly one-third of them. See 72 FR 29851, 29874 (May 30,
2007). DHS made no changes to the types of applications that could
apply for fee waivers in the 2010 and 2016 fee rules.
\190\ While fee waivers are not generally available in
employment-based cases, due to the unique circumstances present in
the CNMI, an exception is Form I-129CW, Petition for a CNMI-Only
Nonimmigrant Transitional Worker, for an employer to petition on
behalf of CW-1 nonimmigrant beneficiaries in the Commonwealth of the
Northern Mariana Islands (CNMI). See 74 FR 55094, 55098 (Oct. 27,
2009).
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[[Page 6265]]
8. Other Comments on Fee Waivers
Comment: A few commenters stated that the fee waiver process is
lengthy or difficult. One commenter said that DHS should simplify the
process for obtaining fee waivers to remove unnecessary barriers,
without specifying how the process should be simplified or what
barriers should be removed. Another commenter stated that the process
of obtaining the requisite documentation to file a fee waiver request
is difficult and delays the process of submitting applications by weeks
or months. They also wrote that ability to work is often contingent
upon obtaining certain immigration benefits, which creates financial
hardship for applicants. Another commenter stated that fee waivers are
not automatic and often add more time to an application, which
negatively impacts immigrants in desperate situations.
Response: DHS acknowledges that obtaining a fee waiver requires the
submission of evidence demonstrating the inability to pay that some
requestors may find burdensome. Nevertheless, approving fee waivers
without evidence of inability to pay would pose a fiscal risk to USCIS.
Thus, DHS has decided that it will not approve fee waivers without
determining the applicant is eligible under the fee waiver regulations.
In this final rule, DHS has provided additional fee exemptions, see
Table 5B, and updates to the Form I-912 for additional efficiencies and
to minimize its burden, see 88 FR 402, 458 (Jan. 4, 2023). Form I-912
has an estimated time completion of one hour and ten minutes. USCIS
strives to continually improve its case processing so that fee waivers
can be adjudicated in a timely, effective manner while balancing
access, affordability, and financial sustainability.
Comment: Multiple comments expressed concerns about the effect of
denied fee waiver requests on application filing dates. One commenter
recommended that USCIS treat the date that forms are received together
with a fee waiver request as the official filing date ``for the Motion,
Appeal or Case.'' The commenter asserted that current procedures and
practices can result in denial of due process to indigent and low-
income immigrants who seek fee waivers and recommended that USCIS
should allow the applicant to recapture the initial filing date if they
pay the required fee within 30 days of a fee waiver denial, which is
similar to State courts' approach in civil or family cases. The
commenter asserted that the USCIS' current approach violates VAWA
confidentiality protections under 8 U.S.C. 1367 for immigrant crime
victims because their cases are not logged as protected cases in USCIS
systems until their fee waiver is granted. Another comment stated that
USCIS' policy of not retaining a filing date for an application with a
rejected fee waiver leads to low-income individuals facing difficult
situations in which the only way to ensure an application will be filed
before a relevant deadline is to pay a fee that they are financially
unable to afford. Some commenters stated that denied Form I-730
petitioners often file the Form I-290B to seek reconsideration of
erroneous denials. If the fee waiver for the Form I-290B is denied and
the individual is unable to pay the fee, the individual is effectively
denied the opportunity to contest the denial of the Form I-730, and the
delay in process may result in the petitioner losing the option to
resubmit the Form I-730 within the 2-year deadline.
Response: DHS considered all the suggestions made by these
commenters but declines to adopt a policy of treating a denied fee
waiver request as establishing a filing date for the underlying form
for similar reasons that it does not accept an improperly filed Form I-
130 or I-140 as establishing a priority date. See 8 CFR 204.1(b),
204.5(d). Were DHS to adopt such a policy, it would encourage the early
filing of improperly completed forms to capture an advantageous filing
or priority date. DHS regulations provide that the receipt date is the
actual date of physical receipt at the location designated for filing
such benefit request, with proper fee or approvable fee waiver request.
8 CFR 103.2(a)(7)(i). DHS disagrees that the regulation violates due
process or 8 U.S.C. 1367 for a denied fee waiver request. In this final
rule, DHS has further expanded the number of VAWA, T, and U-related
forms that are fee exempt, see Table 5B, for which there will be no
delay in applying protections under 8 U.S.C. 1367. For the remainder of
VAWA, T, and U-related requests, the requestor should already be listed
in USCIS systems as protected under 8 U.S.C. 1367. In the case of a
Motion to Reopen for a denied Form I-730, Refugee/Asylee Relative
Petition, if the original, timely-filed Form I-290B, Notice of Appeal
or Motion, is rejected due to a denied fee waiver request, USCIS may
exercise its discretion to accept a subsequent, untimely Motion to
Reopen. See 8 CFR 103.5(a)(1)(i). However, in the case of a Motion to
Reconsider for a denied Form I-730, if the original, timely-filed Form
I-290B is rejected due to a denied fee waiver request, USCIS lacks
discretion to accept a subsequent, untimely Motion to Reconsider. See 8
CFR 103.5(a)(1)(i).
Comment: Several commenters expressed concern over USCIS fee waiver
denials, stating the following:
Denials generally give no specific information as to why
the applicant's evidence was deemed insufficient and is accompanied by
boilerplate lists of evidence that may be submitted, even when the
individual has submitted such evidence.
Clearer fee waiver denials would decrease the volume of
fee waiver requests and help with backlog and efficiency.
Regulations should require fee waiver denials to provide
some reasoning to specifically describe why the submitted evidence was
not considered sufficient and what additional evidence would be deemed
adequate for the application.
Denials task the applicant with the impossibility of
proving a negative by reiterating that tax filings and paystubs are
proof of income, yet individuals with no income may have no income tax
filings due to earning less than the IRS income tax filing threshold,
nor paystubs during the period of unemployment.
Response: DHS acknowledges commenters' concerns that fee waiver
denials do not receive a detailed, individualized denial letter.
However, DHS must weigh this against the additional costs of
individualized fee waiver denials and has decided to limit this cost in
favor of the general expansion of fee exemptions and waivers contained
in this rule. See Table 5B. As stated previously, USCIS receives over
2,000 fee waiver requests per workday and approves 84 percent of them.
The current Form I-912 instructions allow requestors to provide
evidence of lack of income by describing the situation that qualifies
them for a fee waiver. The instructions also state that, if available,
requestors may submit affidavits (e.g., from religious institutions,
nonprofits, community-based organizations, or similarly recognized
organizations) indicating that the requestor is currently receiving
some benefit or support from the organization verifying (or attesting)
to their situation. DHS will continue to review the fee waiver process
for areas that may be improved. In general, if a fee waiver request is
denied, the form may be resubmitted without prejudice with additional
documentation in support of the fee waiver or with the fees.
Comment: A few commenters said there is a lack of knowledge around
fee
[[Page 6266]]
waiver eligibility and around the existence of fee waivers as a
possibility for low-income individuals, which presents a barrier for
those who are interested in applying for immigration benefits. The
commenters stated that USCIS should accompany the proposed rule with
public education efforts aimed at prospective applicants with clear,
culturally sensitive, and multilingual information on fee waivers and
the grounds for eligibility. The commenters further suggested USCIS
include efforts used in the Interagency Strategy for Promoting
Naturalization that was developed in E.O. 14012. Another commenter
stated that creating more categories and avenues by which one can show
proof for fee waivers does little if basic access and understanding on
how to navigate forms is not there for the communities that need it
most.
Response: DHS agrees that it is important to alert potential
requestors to the existence of fee waivers. Every form instruction for
which a fee waiver is possible notifies the requestor of their ability
to request a fee waiver. USCIS is removing the option for a written
request in this rule for the reasons stated earlier. However, USCIS
will continue to provide information about fee waivers for all its
forms and the reduced fee for Form N-400 on our website,\191\ at
stakeholder and public engagements and using other public education
efforts. For example, USCIS routinely hosts local and virtual
engagements on naturalization, in which we discuss fee waivers and the
reduced N-400 fee.\192\ The Form G-1055, Fee Schedule, also identifies
which USCIS forms are eligible for a fee waiver.
---------------------------------------------------------------------------
\191\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, ``Additional Information on Filing a Fee
Waiver,'' https://www.uscis.gov/forms/filing-fees/additional-information-on-filing-a-fee-waiver (last updated Oct. 31, 2023);
U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland
Security, ``Fact Sheet: Request for Fee Waivers for Form N-400,''
https://www.uscis.gov/sites/default/files/document/fact-sheets/FactSheetI-912RequestforFeeWaiverForFormN-400.pdf (last visited Oct.
10, 2023).
\192\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, ``USCIS Past Training Seminars,'' https://www.uscis.gov/citizenship/resources-for-educational-programs/register-for-training/uscis-past-training-seminars (last updated
Sept. 20, 2023).
---------------------------------------------------------------------------
Comment: A commenter asked USCIS to discontinue the different
treatment of applications submitted with fees and with fee waivers. The
commenter reasoned that their clients who request fee waivers often
must wait noticeably longer than applicants who pay the filing fees to
receive the receipt notices for their application. Moreover, the
commenter stated, the delays in receipt notices has impeded their
ability to timely seek prosecutorial discretion for clients in removal
proceedings based on their pending applications for relief before
USCIS. The commenter concluded that this different treatment causes
harm to their most vulnerable clients.
Response: USCIS strives to issue receipt notices in a timely manner
for all forms. As discussed earlier in Section IV.E.4. of this
preamble, USCIS adjudicates most fee waiver requests within days of
receipt. However, it takes longer to issue a receipt for a form that is
accompanied by a fee waiver request because fee payments clear almost
immediately, while adjudicating the fee waiver request requires
additional time to review the waiver request. This different treatment
of fee waiver requests is justified by the additional processing steps
that they require.
Comment: Commenters stated that USCIS should improve the fee waiver
process by training adjudicators on fee waivers and otherwise
addressing erroneous rejections and delays in issuing receipts.
Response: USCIS currently provides guidance and training to its
officers on fee waivers. USCIS strives to continuously improve its
training to reduce erroneous rejections and delays in receipts. DHS
believes that codifying the rules for fee waiver eligibility and
modifying the Form I-912 instructions will help to reduce erroneous
rejections and delays.
F. Fee Exemptions
As discussed in the Changes from the Proposed Rule section, many
commenters requested that DHS provide more fee exemptions and free
services for humanitarian related benefit requests and DHS is providing
more fee exemptions in the final rule. A summary of the current and new
exemptions is provided above in Table 5A, 5B, and 5C.
1. Codification of Benefit Categories/Classifications With Exemptions/
No Fees
Comment: In the proposed rule DHS proposed to include several fee
exemptions that are provided in guidance or form instructions or
statute in the Code of Federal Regulations, although that action was
not necessary for the exemptions to continue in effect. A couple of
commenters generally expressed support for USCIS' proposal to codify
fee exemptions in regulations without providing rationale to support
this position. Another commenter wrote that the proposed codification
of benefit requests with no fees and exemptions is in line with DHS's
``best effort'' to include the ``benefits to the national interest''
when considering the fee schedule changes. Another commenter stated
that codifying exemptions promotes stability and ease of access for
applicants. One commenter further expressed appreciation for Tables
13A, B, and C in the proposed rule and suggested they be included in
the final rule.
Some commenters welcomed the proposal to codify the fee exemption
of Form I-360 for SIJs. The commenters reasoned that this population is
particularly vulnerable, has no ability to work, and, therefore, lacks
the financial means to pay fees for immigration benefit applications.
The commenters further remarked that this codification would align with
Congress' goal to protect vulnerable children when it created the SIJ
classification.
A few commenters welcomed the codification of longstanding fee
exemptions for those seeking humanitarian relief, including those
applying for asylum, asylees, and refugees. Other commenters said the
proposal to codify exemptions for these groups would be consistent with
U.S. humanitarian values, as well as legal obligations under U.S. and
international law to protect persons fleeing persecution. Multiple
commenters welcomed DHS's proposal to codify in the regulations that
there is no fee for Form I-589, Application for Asylum and for
Withholding of Removal. A commenter wrote that they support the
proposed codification, reasoning that it recognizes the importance of
access to the asylum system, regardless of a person's financial
situation. A couple of commenters stated that the codification would
ensure that the United States remains among most parties to the 1951
Refugee Convention and 1967 Refugee protocol who do not charge a fee to
apply for asylum. A few commenters wrote that the codification was
welcome after the proposal to introduce a $50 asylum fee in the 2020
fee rule. A commenter stated that the previously proposed fee would
have deterred those seeking protections afforded by Congress while
creating vulnerabilities to trafficking and exploitation.
Response: DHS appreciates the commenters' support of the
codification of fee exemptions in regulations and did not make any
changes in this final rule based on these comments.
Comment: Several commenters welcomed DHS's plan to continue to
provide a fee exemption for the initial filing of Form I-765 for
asylees and those with pending asylum applications. One commenter
agreed with DHS's determination that requiring a fee for the initial
employment
[[Page 6267]]
authorization application would be unduly burdensome and would prevent
some asylum seekers from obtaining lawful employment. Another commenter
further reasoned that this approach aligns with the 1951 Convention
Relating to the Status of Refugees, which requires ``sympathetic
consideration to assimilating the rights of all refugees with regard to
wage-earning employment to those of nationals . . . .'' This commenter
additionally wrote that providing fee-exempt access to employment
authorization affords asylum seekers crucial opportunities to recover
from trauma, pay for future immigration benefit fees, and access
identification for physical and economic mobility. Another commenter
further reasoned that access to employment authorization promotes
children's health and well-being by providing protection from unsafe
working conditions and exploitation as well as access to basic
services.
Similarly, a couple of commenters expressed support for continued
fee exemptions for persons admitted or paroled as refugees, including
the proposed exemptions for EAD renewal and replacement, Form I-131,
Application for Travel Document, and Form I-590, Registration for
Classification as Refugee. One of the commenters agreed with DHS's
reasoning that continuing to facilitate access to employment
authorization and travel documents for those admitted or paroled as
refugees is consistent with the 1951 Convention and 1967 Protocol. The
commenter further reasoned that making travel documents accessible,
which is not an overly costly or burdensome process for USCIS, reflects
the reality of refugees who have a need to travel outside the United
States for work or other purposes that support U.S. interests, but
cannot do so if they unable to obtain a passport from the country from
which they sought refuge.
Response: DHS appreciates the commenters' support of the
codification of fee exemptions for refugee and asylees in regulation in
this final rule.
Comment: A commenter wrote that Form G-1055 contains a
typographical error that, if left uncorrected, would lead U
nonimmigrants to erroneously believe they are fee exempt from an
initial Form I-765 based on a concurrently filed or pending Form I-485.
Specifically, the proposed Form G-1055 states that U nonimmigrants
seeking to adjust status under INA sec. 245(m) will pay a $0 fee for an
initial Form I-765 under category (c)(9), which the commenter said does
not reflect the proposed regulation and preamble.
Response: Principal U nonimmigrants who are in the United States
are exempt from fees associated with employment authorization when it
is issued incident to status, and they are not required to file Form I-
765, Application for Employment Authorization, to receive an EAD. See
88 FR 460; 8 CFR 214.14(c)(7). Principal U nonimmigrants who are
outside the United States are fee exempt for fees associated with
employment authorization issued incident to status once they enter the
United States and file Form I-765 (initial request under 8 CFR
274a.12(a)(19) and (20)). See 88 FR 460. In the proposed rule, DHS
proposed to expand fee exemptions for persons seeking or granted U
nonimmigrant status for all forms filed before filing Form I-485,
Application to Register Permanent Residence or Adjust Status. See 88 FR
460-461. As explained in section II.C.9 of this rule's preamble, DHS
further expands fee exemptions in this final rule for persons seeking
or granted U nonimmigrant status for all forms related to the U
nonimmigrant status or adjustment of status under INA sec. 245(l), 8
U.S.C. 1255(l), including an initial Form I-765 for an EAD based on
having a pending Form I-485. See 8 CFR 106.3(b)(5); Table 5B. DHS
believes that these additional fee exemptions, as well as the
publication of a final rule Form G-1055 Fee Schedule, mitigate the
commenter's concerns.
Comment: A commenter discussed the current economic benefits of
TPS, such as the tax revenue generated by TPS holders, and commended
codifying the exemption for Form I-821 to secure the continuation of
those benefits.
Response: DHS appreciates the commenter's support of the
codification of the fee exemption for Form I-821, Application for
Temporary Protected Status, when filed by a TPS holder seeking re-
registration, see 8 CFR 106.2(a)(50)(ii), and did not make any changes
in this final rule based on these comments.
2. Proposed Fee Exemptions
a. General Support of Proposed Exemptions
Comment: Some commenters expressed general support for the proposed
expansion of fee exemptions for certain humanitarian programs without
further rationale.
Response: DHS maintains the fee exemptions as listed in the
proposed rule and provides additional fee exemptions for certain
humanitarian populations in this final rule. See Table 5B.
Comment: Many commenters expressed broad support for the various
proposed fee exemptions for VAWA self-petitioners, U nonimmigrant
status petitioners and T nonimmigrant status applicants, petitioners
for SIJ classification, and other vulnerable populations. One commenter
reasoned that the proposed exemptions would increase access to
immigration relief for low-income survivors, and thus more completely
achieve the goals of humanitarian programs to provide stability and
safety from abuse.
Another commenter agreed with USCIS' assessment in the proposed
rule that survivors of violence often experience financial abuse and
have limited resources, even once they flee from their abusers. The
commenter went on to cite research from DOJ, the Bureau of Justice
Statistics (BJS), the Borgen Project, and others describing the
relationship between domestic violence and financial hardship. Another
commenter similarly cited research on the mental, psychological,
financial, and legal challenges that survivors of violence face and
stated that ensuring survivors' access to immigration benefits is
essential to help them escape abusive situations and gain self-
sufficiency following victimization.
Citing the INA and the legislative history of VAWA and T and U
nonimmigrant status, a commenter said the expanded fee exemptions would
align with legislative trends and congressional intent in creating
protections for certain victims of crime. The commenter added that
expanded access to fee exemptions is consistent with E.O. 14012.
Another commenter wrote that the proposed exemptions would align with
congressional intent while citing an October 11, 2000, statement from
Senator Hatch and TVPRA. Another commenter similarly suggested that the
proposed exemptions would align with congressional actions to protect
victims of trafficking and abuse and asked USCIS to retain the
exemptions in the final rule.
Response: DHS agrees that these populations are particularly
vulnerable as victims of abuse or violence, and that, because of this
victimization, many will lack the financial resources or employment
authorization needed to pay for fees related to immigration benefits.
DHS has maintained the proposed fee exemptions and provided additional
fee exemptions for certain humanitarian populations in this final rule.
See 8 CFR 106.3(b); Table 5B.
Comment: Numerous commenters agreed that expanded fee exemptions
would eliminate the need for groups that disproportionately experience
[[Page 6268]]
financial hardship, and therefore already require a fee waiver, to
apply for such waivers. One commenter added that the proposed
exemptions would reduce the length of time that applicants for
survivor-specific forms of relief would have to wait for a fee waiver
to be adjudicated and a receipt notice issued.
Many commenters further reasoned that applying for fee waivers
places undue burdens on vulnerable and pro se applicants to produce
evidence and meet the filing requirements to obtain a favorable
decision and access protections. For example, one commenter stated that
many T nonimmigrant applicants lack evidence to support their fee
waiver application, including tax forms, pay stubs, and bills in their
own name. The commenter also described the harms for victims associated
with waiver denials for failing to file proper forms or submit the
desired evidence. Another commenter wrote that SIJs without LPR status
do not qualify for means-tested benefits, and obtaining proper
documentation of the receipt of benefits can be challenging for non-
English-speaking populations navigating complex systems. The commenter
added that, while fee waiver applications cost legal services providers
time and resources to prepare and resubmit when needed, exemptions free
up capacity for legal practitioners to prepare the merits of the
immigration benefit case and assist more individuals seeking
protections. Another commenter further stated that, particularly for
vulnerable children who are almost always found eligible for a fee
waiver, requesting a fee waiver is an unnecessary step that adds
uncertainty to the application process. Another commenter reasoned that
fee exemptions would ensure that vulnerable noncitizens do not forgo
the opportunity to apply for humanitarian forms of relief.
One commenter, citing a 2016 Citizenship and Immigration Services
(CIS) Ombudsman report on inconsistent fee waiver adjudications, said
that the exemptions would avoid ``arbitrary'' fee waiver decisions that
disproportionately affect vulnerable immigrant populations. Another
commenter wrote that, in addition to reducing burdens associated with
fee waivers, fee exemptions provide clarity for applicants and their
families and allow them to better anticipate the costs of applying for
protections. Multiple commenters wrote that eliminating the need to
apply for a fee waiver through exemptions would in turn reduce
administrative burdens and resources expended for USCIS to adjudicate
applications or engage in litigation arising from waiver rejections.
Some commenters suggested that these efficiencies would allow USCIS to
redirect staff resources away from processing and reviewing fee waiver
requests toward adjudicating applications for humanitarian protection,
and the resulting decrease in administrative burden to USCIS would
mitigate erroneous denials and subsequent delays for survivors.
Response: DHS notes that this final rule maintains and codifies the
2011 Fee Waiver Policy criteria that USCIS may grant a request for fee
waiver if the requestor demonstrates an inability to pay based on
receipt of a means-tested benefit, household income at or below 150
percent of the FPG, or extreme financial hardship. See 8 CFR
106.3(a)(3). While not a change to fee waiver eligibility criteria, DHS
believes that codifying these criteria in this final rule will provide
consistency and transparency that is responsive to the commenters'
concerns.
DHS agrees that there are costs to USCIS in adjudicating fee
waivers beyond foregone revenue (i.e., the total fees that fee-waived
or fee-exempt requestors would have paid if they had paid the fees).
DHS believes that replacing fee waivers with additional fee exemptions
removes barriers for applicants who are similarly situated in terms of
financial resources and employment prospects. In the proposed rule, DHS
proposed fee exemptions for humanitarian populations, including VAWA
self-petitioners and requestors for T and U nonimmigrant status,
without reducing fee waiver availability. In this final rule, DHS
provides additional fee exemptions for these populations as explained
in section II.C.9.b. of this preamble.
DHS likewise expects a decrease in administrative burden associated
with the processing of requests for fee waivers for categories of
requestors that would no longer require a fee waiver because they will
be fee exempt. DHS has not quantified the cost savings to USCIS
associated with processing fee waiver requests, namely Form I-912.
Furthermore, DHS's Regulatory Impact Analysis (RIA) estimates that the
fee exemptions and reduction in fee waiver requests will result in
quantifiable annual transfer payments from USCIS to the public and
opportunity cost savings to the public from not completing and
submitting a fee waiver request. See Regulatory Impact Analysis 3.P.
In general, where DHS has determined that immigration fees would
inequitably impact the ability of those who may be less able to afford
the proposed fees to seek an immigration benefit for which they may be
eligible, DHS has maintained fee exemptions, waivers, and reduced fees,
and provided new fee exemptions to address accessibility and
affordability. See 88 FR 402, 460-81 (Jan. 4, 2023).
b. T Nonimmigrants
Comment: A few commenters expressed support for the proposed change
to exempt fees for all forms for T visa applicants, T nonimmigrants,
and their derivatives through adjustment of status. One commenter
agreed with USCIS' assessment that the proposal would help more victims
of trafficking pursue immigration relief afforded to them by Congress.
Another commenter wrote that the proposed rule would align with
congressional intent under the TVPRA and international obligations
under the Palermo Protocol.
Response: DHS appreciates the commenters' support of the proposed
fee exemptions for T visa applicants, T nonimmigrants, and their
derivatives, and finalizes these fee exemptions in this final rule. See
8 CFR 106.3(b)(2); Table 5C.
c. U Nonimmigrants
Comment: Commenters expressed support for expanded fee exemptions
for petitioners for U nonimmigrant status because the combined
associated fees to obtain protection prohibit many otherwise eligible
petitioners from pursuing U nonimmigrant status. The commenters said
the proposed rule would allow petitioners to pursue U nonimmigrant
status more expeditiously while saving nonprofit agencies' time.
Other commenters wrote that they had concerns about the effects on
U-nonimmigrants, specifically:
U-nonimmigrants applying for adjustment of status should
also be eligible for the same fee exemptions as T and VAWA adjustment
applicants.
U nonimmigrants are similarly situated to T nonimmigrants
and VAWA self-petitioners because U nonimmigrants are vulnerable and
have suffered similar harm and abuse, which impacts their physical,
mental, and financial health due to ongoing trauma. The increased I-485
fee will be even more difficult for U nonimmigrants to cover.
The higher volume of petitioners for U nonimmigrant status
did not justify fewer fee exemptions because both groups remain
vulnerable populations, and there are many more refugees than either U
visa petitioners or T visa applicants, and it undermines DHS's ability-
to-pay philosophy and
[[Page 6269]]
perpetuates barriers for vulnerable applicants for humanitarian relief.
The fees would be prohibitively expensive for U
nonimmigrants and VAWA self-petitioners, and total filing fees (I-485,
I-765, and I-131) for a family of four would be more than 25 percent of
the median annual household income ($44,666), not counting the cost of
medical exams or attorney fees.
Requiring U nonimmigrants and VAWA self-petitioners to pay
the filing fees or submit fee waiver requests would be a significant
drain on USCIS' limited staff and resources. Providing additional fee
exemptions only for certain categories of vulnerable populations is
``arbitrary'' or ``unjustified.''
A maximum of 10,000 U-1 nonimmigrants become eligible to
file Form I-485 each year, and therefore fee exemptions for U
nonimmigrant adjustment of status applications would have a minimal
impact when considering all the fee generating cases filed each year
with USCIS.
The longer period of employment authorization available to
U nonimmigrants compared to T nonimmigrants did not justify their
disparate treatment because U nonimmigrants may be unable to work
because of trauma and physical injuries.
USCIS should provide further explanation as to why U
nonimmigrants would be treated differently than T nonimmigrants and
VAWA self-petitioners with regards to adjustment of status fees.
DHS has not provided information on the level of the costs
that would need to be shifted to other paying applicants if Form I-485
were fee exempted for U nonimmigrants, or the policy considerations
counseling against such a shift of costs.
U nonimmigrants who are victims of domestic abuse may lack
income or savings after leaving the abusive situation and may only be
able to obtain employment in low-wage positions with no benefits due to
language barriers, lack of education and work experience, and the
impact of trauma.
Most petitioners for U nonimmigrant status cannot afford
the Form I-485 filing fee despite a bona fide determination (BFD) or a
grant of U nonimmigrant status, particularly those adjusting as whole
family groups (U-1 and derivatives).
Not all U nonimmigrant petitioners receive employment
authorization through the BFD process, and the absence of a BFD process
for T nonimmigrant status applicants, contrary to the T nonimmigrant
status regulations, does not support the failure to extend similar fee
exemptions to U nonimmigrants.
T visa holders may qualify for ``continuous presence,''
which allows for employment authorization, and they may receive refugee
services from resettlement agencies.
Even after obtaining employment authorization, U visa
victims experience barriers to securing long term employment and
earning capacity to pay for adjustment of status fees, and that the
criminal proceedings tied to a U visa holder's victimization may not be
completed within the 15-year wait between the receipt of employment
authorization and the ability to adjust status. Participation in the
labor force does not guarantee a rise out of poverty, according to a
2022 study from the Migration Policy Institute finding that more than
half of the low-income immigrants of prime working age who worked full-
time, year-round earned less than $25,000 a year in 2019.
Fee waivers are an insufficient substitute for fee
exemptions because the small amount of money saved by USCIS limiting
fee exemptions in this respect would not be worth the harm imposed on
applicants. U nonimmigrant applicants will also lack the evidence
needed for fee waivers. Fee waivers will endanger victims and their
children by delaying access to the confidentiality protections victims
receive when cases are considered filed and given an 8 U.S.C. 1367 flag
in the Central Index System, which does not occur until the fee waiver
has been adjudicated.
Requiring U nonimmigrants to file a fee waiver increases
the time that pro bono attorneys must dedicate to their cases.
Adjudicating fee waivers increases administrative burden
on USCIS, and fee waivers for U nonimmigrants and their children
applying for adjustment of status ignores dynamics of domestic
violence, sexual assault, coercion, and child abuse.
Victims experience physical, economic, and psychological
abuse years after leaving their abuser, including during the adjustment
of status stage.
Response: DHS acknowledges that T and U nonimmigrants are both
vulnerable populations that merit special consideration. After
considering the comments, comparing these two victim populations, and
weighing options to recover the costs of USCIS, DHS has decided to no
longer treat T and U nonimmigrants differently with regard to fee
exemptions in this final rule. In addition, DHS has expanded fee
exemptions for U petitioners and U nonimmigrants to include Forms I-
131, I-192, I-193, I-290B, I-485, I-539, I-601, I-765 (adding renewal
and replacement requests), I-824, and I-929. See 8 CFR 106.3(b)(5);
Table 5B.
Although U nonimmigrants may possess employment authorization for a
longer time than T nonimmigrants (88 FR 402, 461, Jan. 4, 2023) the
impact of victimization can be lasting and far-reaching, even after the
events giving rise to U nonimmigrant status eligibility have
concluded.\193\ Due to victimization, T and U nonimmigrants face
similar employment and financial challenges, which justify similar fee
exemptions. Expanding fee exemptions for U nonimmigrants could have
resulted in higher fees to other fee payers because of the large number
of U nonimmigrants who file Form I-485 and related forms.\194\ However,
rather than increase fees further than in the proposed rule, DHS
revised the USCIS budget to accommodate the revenue generated by the
fees and volumes in this final rule. DHS has determined that the
humanitarian nature of these programs warrants special consideration
when weighed against the transfer of costs to other petitioners and
applicants. DHS acknowledges the administrative burden placed on U
petitioners and U nonimmigrants, as well as USCIS, by requiring fee
waiver requests for this sizeable population, of whom a significant
portion may be eligible for fee waivers but struggle to produce
supporting documentation due to circumstances resulting from
victimization.\195\ The changes made in this final rule account for the
similar financial circumstances of T and U nonimmigrants, the
likelihood that U nonimmigrants would qualify for fee waivers, and the
burden reduction in providing fee exemptions to U
[[Page 6270]]
nonimmigrants for Form I-485 and related forms.
---------------------------------------------------------------------------
\193\ However, DHS disagrees with the commenter's
characterization of the results of the 2022 study from the Migration
Policy Institute (MPI). The commenter wrote that in 2019 more than
half of the low-income immigrants of prime working age who worked
full-time, year-round earned less than $25,000 a year. However, the
MPI report showed that 20 percent of full-time, year-round working
immigrants made less than $25,000 a year. See Gelatt, et. al, ``A
Profile of Low-Income Immigrants in the United States,'' Figure 11,
Migration Policy Institute (Nov. 2022) available at https://www.migrationpolicy.org/sites/default/files/publications/mpi_low-income-immigrants-factsheet_final.pdf.
\194\ The fiscal year limit of 10,000 U visas only applies to U-
1 principals and not to derivatives. See INA sec. 214(p)(2)(B), 8
U.S.C. 1184(p)(2)(B).
\195\ However, with regards to certain forms, such as Form I-
485, DHS disagrees that fee waivers may delay confidentiality
protections for victims of crimes, since the applicant's protection
will already be recognized in USCIS systems following approval of
their Form I-918, Petition for U Nonimmigrant Status, or Form I-929.
---------------------------------------------------------------------------
d. VAWA Self-Petitioners
Comment: A commenter expressed support for maintaining fee waivers
for survivors seeking adjustment of status such as VAWA self-
petitioners who are not filing concurrent I-360s and I-485s and
conditional residents seeking waivers of joint filing requirements
based on battery or extreme cruelty. Similarly, another commenter
expressed support for streamlining the application process for
vulnerable populations by providing fee exemptions.
Commenters expressed support for DHS's proposal to exempt certain
VAWA-related application fees. A commenter expressed support for the
expanded fee exemptions for VAWA self-petitioners for all forms
associated with the Form I-360 filing through final adjudication of the
adjustment of status application. The commenter said this proposal
would allow more abused spouses to obtain LPR status. Another commenter
expressed support for the expanded fee exemptions for VAWA self-
petitioners for all forms associated with the Form I-360 filing through
final adjudication of the adjustment of status application. The
commenter said this proposal would allow more abused spouses to obtain
LPR status.
However, some commenters wrote of concerns about fee exemptions and
waivers for VAWA-based applications as follows:
USCIS should exempt VAWA applicants from all fees through
adjustment of status, regardless of whether Form I-485 was filed
concurrently with Form I-360.
USCIS should provide consistent fee exemptions for Forms
I-485, I-212, I-601, and I-131 because this would reduce the
significant burden on immigrant survivors who may face risks in having
to gather the documents needed to support fee waivers.
The proposed categories of exemptions were arbitrary and
would create confusion, especially amongst pro se applicants who may be
unaware of their ability to file concurrently.
The proposed I-485 fees would be prohibitively expensive
for VAWA self-petitioners who file their I-485 separately, and paying
the fees could leave them vulnerable to debt and victimization.
Some VAWA self-petitioners are ineligible to file their I-
485 concurrently with the I-360, including self-petitioning spouses and
children of LPRs who do not have current priority dates. As a result,
this population of self-petitioners would be unable to access a fee
exemption for the I-485.
Other situations exist where a VAWA self-petitioner may be
unable to file or face difficulty filing their I-485 concurrently,
including certain noncitizens who are in removal proceedings or have an
outstanding order of removal; those with derivative children who will
age out soon; those who need to file the I-360 quickly to obtain
financial independence; or those whose I-130 was converted to a I-360
self-petition.
It ``strains logic'' to deny fee exemptions and instead
require fee waivers for VAWA self-petitioners where most will qualify
for fee waivers.
VAWA self-petitioners, VAWA cancellation of removal
applicants, and battered spouse waiver applicants are amongst the
victim cases that receive the most fee waivers and the fewest
exemptions, and VAWA self-petitioner and derivative children should
receive the same access to fee exemptions as SIJ children.
Foreign-born spouses and children experience higher rates
of abuse when the abuser is a U.S. citizen or LPR.
Requiring some VAWA self-petitioners to pay the filing
fees or submit fee waiver requests for form I-485 would drain USCIS'
limited resources to investigate the status of the underlying I-360 to
determine whether each form I-485 is fee exempt or if the application
includes the proper filing fee or a fee waiver request.
Response: DHS acknowledges that VAWA self-petitioners are a
particularly vulnerable population as victims of abuse who may not have
the financial resources or access to their finances needed to pay for
fees when initially filing for immigrant classification, adjustment of
status, and associated forms.
DHS also acknowledges that for some VAWA self-petitioners, the
ability to file Form I-360, Petition for Amerasian, Widow(er), or
Special Immigrant, and Form I-485 concurrently is beyond their control.
As noted by the commenters, some VAWA self-petitioners are limited by
visa priority dates, some are in removal proceedings or have an
outstanding order of removal, and some may be the beneficiary of a Form
I-130, Petition for Alien Relative, petition that was converted to a
Form I-360 self-petition. DHS also acknowledges that in some situations
the individual's need for safety puts them in a difficult position of
deciding whether to pursue immigration benefits when they may not
qualify for a fee exemption because they are not able to file Form I-
360 and Form I-485 concurrently. Additionally, VAWA self-petitioners
may face challenges in obtaining evidence in support of fee waiver
requests, adding a greater burden to the requestor in filing Form I-
912. This burden to requestors, combined with the administrative burden
to USCIS in processing a high volume of requests for these individuals,
many of whom would qualify for a fee waiver, justify exempting VAWA
self-petitioners from fees. Considering the benefit to VAWA self-
petitioners and USCIS, as well as the humanitarian nature of this
program, DHS has codified the fee exemptions in the proposed rule and
incorporated additional fee exemptions in the final rule to include
applications for adjustment of status and associated ancillary forms,
regardless of whether they are filed concurrently with the VAWA Form I-
360 self-petition. See 106.3(b)(6); Table 5B.
Comment: A commenter expressed concern that, under the new
regulation, there would be no fee exemption for Form I-765s filed by a
VAWA I-485 applicant. The commenter stated that, under current Form I-
360 processing times, VAWA self-petitioners would have to wait 2 years
and 8 months to obtain a fee exempt EAD. The commenter emphasized that
these documents are often essential for a domestic violence survivor's
recovery and future.
Response: DHS acknowledges the commenter's concerns regarding the
availability employment authorization. For reasons discussed earlier,
DHS has provided additional fee exemptions for VAWA self-petitioners in
this final rule, including Form I-765 renewal and replacement requests
after Form I-485 is filed. See 8 CFR 106.3(b)(6); Table 5B.
Comment: One commenter raised concerns that a fee exemption for
Form I-601 Waiver of Inadmissibility in VAWA cases would only be
available if the form is filed concurrently with Form I-485.
Response: DHS acknowledges the commenter's concerns regarding the
availability of a fee exemption for Form I-601 for VAWA self-
petitioners. As explained in section II.C.9 of this preamble, DHS
expands fee exemptions in this final rule for VAWA self-petitioners to
include Form I-601 filed by individuals who did not concurrently file
Form I-360 and Form I-485. See 8 CFR 106.3(b)(6); Table 5B.
e. Iraqi and Afghan Special Immigrants
Comment: A commenter wrote that they supported fee exemptions for
Iraqi and Afghan special immigrant visa (SIV) and military applicants.
Another commenter welcomed the expanded fee
[[Page 6271]]
exemptions for Special Immigrant Afghan or Iraqi translators or
interpreters, Iraqi nationals employed by or on behalf of the U.S.
Government, or Afghan nationals employed by or on behalf of the U.S.
Government or employed by the ISAF to all forms associated with filings
from initial status filing through final adjudication of the adjustment
of status application. The commenter reasoned that Afghans face
financial hardships that prevent them from accessing the benefits that
Congress intended to provide this population. The commenter further
wrote that the exemptions would reduce the burdens on those who support
Afghans, including military, veteran, faith, and other communities.
Response: DHS appreciates the support for fee exemptions for Iraqi
and Afghan SIV and military applicants. As explained in section II.C.9
DHS further notes that in this final rule it has expanded fee
exemptions for this group to include Form I-765 (renewal, and
replacement request); Form I-290B (only if filed for any benefit
request filed before adjusting status or for Form I-485 and in
associated ancillary forms) and Form I-824. See Table 5B and 8 CFR
106.3(b)(3).
On August 29, 2021, President Biden directed the DHS to lead
implementation of ongoing efforts across the government to support
vulnerable Afghan nationals, including those who worked alongside the
U.S. government in Afghanistan for the past two decades, as they safely
resettle in the United States. These coordinated efforts are known as
OAW, now transitioning to Operation Enduring Welcome (OEW). CBP has
exercised its discretion to parole many Afghan nationals, on a case-by-
case basis, into the United States for urgent humanitarian reasons.
Further, the Department of State (DOS) continues to coordinate the
travel of Afghan nationals to the United States. Many Afghan nationals
are also applying to USCIS for immigration benefits such as parole,
employment authorization, Afghan special immigrant status, lawful
permanent residence, waivers of inadmissibility, asylum, TPS, and
family-based petitions.
As we transition into OEW, helping Afghan nationals who are now
U.S. citizens and LPRs bring their family members who are still in
grave danger in Afghanistan out and into safety is an Administration
priority. USCIS will continue to support family reunification by
exempting certain fees and using the funds Congress appropriated for
efforts under OAW and OEW.
Form I-824 is used to request further action on a previously
approved application or petition. A spouse or unmarried child younger
than 21 years following to join a principal immigrant may receive the
same special immigrant classification as a principal Afghan special
immigrant. Some the Afghan LPRs who adjusted status as Afghan special
immigrant (SIV LPRs) under the OAW effort are now seeking follow-to-
join immigration benefits for their spouse and eligible children
outside the United States. To permit a spouse and eligible children to
apply for an immigrant visa with DOS, an Afghan SIV LPR must file a
Form I-824 asking USCIS to notify DOS of the principal Afghan special
immigrant's adjustment of status in the United States.
USCIS is legally required to exempt this fee for Afghan SIVs under
section 602(b)(4)(C) of the Afghan Allies Protection Act (8 U.S.C. 1101
note), which prohibits any fees ``in connection with an application
for, or issuance of, an [Afghan SIV].'' DHS believes allowing a fee
exemption for all Afghan SIV LPRs' Form I-824 filing fee will also help
the continuing resettlement efforts and reunite separated family
members under OAW and OEW.
f. Special Immigrant Juveniles (SIJs)
Comment: A few commenters expressed support for the proposed
exemptions for all forms associated with SIJ classification through
final adjudication of the adjustment of status application. Citing
obligations under international agreements, one commenter concluded
that the proposed exemptions would represent a crucial step toward
upholding international best practices related to neglected, abused, or
exploited children who lack the necessary permanence, benefits, and
protections to thrive. Another commenter wrote that SIJs are court-
dependent; that they have experienced abuse, neglect, or abandonment;
and that such exemptions would help youth achieve stability and self-
sufficiency. Finally, the commenter recommended that USCIS make it
clear that the rule would eliminate SIJs' application fees for any
forms filed by SIJ petitioners or recipients before adjustment of
status, in the event of future changes to immigration law and policy.
Response: DHS appreciates the support for fee exemptions for SIJs.
As DHS explains in section II.C.9, it has expanded fee exemptions for
this group to include Form I-290B (if filed for any ancillary forms
associated with Form I-485). See Table 5B; 8 CFR 106.3(b)(3). DHS
believes these regulations as written address the commenter's concerns,
but we note that this rule does not preclude any future changes to
immigration law and regulations. This rule therefore also does not
prevent changes based on future changes in law or regulations.
Comment: Multiple commenters expressed support for the proposed fee
exemptions for SIJ petitioners and SIJ classified noncitizens, but also
recommended extending the fee exemption to any Form I-765 filed by an
SIJ petitioner, even if not associated with a pending application to
adjust status. The commenters stated that this would help children who
have been granted SIJ-based deferred action who apply for or renew
employment authorization under the (c)(14) category while awaiting visa
availability. A commenter also stated that this would help mitigate
delays and reduce burden on USCIS.
Response: DHS appreciates commenters' feedback regarding the rule's
fee exemptions for those seeking or granted SIJ classification, but
believes these comments are based on a misreading of the proposed rule.
The proposed and final rule exempts fees for any Form I-765 filed by a
person seeking or granted SIJ classification, regardless of whether
they have filed a Form I-485. Compare 8 CFR 106.3(b)(1)(v), with
proposed 8 CFR 106.3(b)(1)(v). DHS believes that the rule, as drafted,
makes this sufficiently clear and has therefore not made any changes in
this final rule.
g. Asylees and Refugees
Comment: Commenters expressed appreciation for the proposed fee
exemptions for refugees submitting Form I-131 and for refugees
submitting Form I-765 to renew or replace their EAD because such
exemptions are consistent with the 1951 Refugee Convention and
Congress's recognition that refugees are more likely than other
immigrant populations to lack economic security and require support on
their path to self-sufficiency. Another commenter similarly expressed
support for USCIS' proposed fee exemptions for Form I-131 for persons
admitted or paroled as refugees. Another commenter wrote that the cost
burden should not be shifted to account for additional exemptions, and
DHS should eliminate the refugee fee exemption for Form I-131, because
a refugee with an ability to travel internationally can pay for Form I-
131. The commenter also wrote that there is less justification for the
I-131 fee exemption for refugees because those who possess the means to
travel internationally should be able to pay the I-131 fee.
[[Page 6272]]
Response: DHS makes no changes in the final rule based on these
comments. Consistent with congressional intent to provide refugees with
support and assistance on their path to self-sufficiency, DHS has a
long history of offering refugee travel documents at reduced cost. See
75 FR 58972; see also INA sec. 207(c)(3) (public charge ground of
inadmissibility in INA sec. 212(a)(4) does not apply to refugees); see
also INA sec. 412, 8 U.S.C. 1522 (authorizing a variety of benefits and
services for refugees). DHS aligns with this long-standing policy in
providing a fee exemption for refugees filing Form I-131. Furthermore,
as explained in the proposed rule, the increase in other fees resulting
from exempting refugees from paying the fee for Form I-131 is marginal.
See 88 FR 495.
Comment: Regarding fees for asylum applicants and asylees,
commenters wrote the following:
Add fee exemption for asylum-based Form I-765 renewal and
replacement requests.
Add fee exemption for refugees and asylees for Form I-290B
when filed in connection with Form I-730. Form I-730 is the only
vehicle for family reunification for asylees and refugees. I-730
petitioners have motion rights via the I-290B but no appellate rights
and can only challenge a denied family reunification petition with an
I-290B filed within 33 days of a denial. I-730 petitioners must file
within two years of arrival as a refugee or grant of asylum and as a
result are new arrivals to the United States and are categorically
economically disadvantaged. The form I-730 itself is fee exempt. Most
I-730 petitioners are likely to be fee waiver eligible, and so the I-
290B form should be exempt from a fee in this category. Fee waiver
eligibility for the I-290B is not sufficient because the asylee or
refugee petitioner whose fee waiver application is denied is then time-
barred from motioning to reopen or reconsider the I-730, since the
rejection of an application for an insufficient fee or fee waiver
application takes more than the 33-day period within which a petitioner
can challenge the denial of the I-730. Considering that the proposed
rule would make form I-290B fee exempt for every other humanitarian
category of noncitizen contemplated in the proposed rule, adding fee
exemptions for asylees and refugees for these benefits in the final
rule would constitute a logical outgrowth of the proposed regulation.
Add fee exemption for refugees and asylees for Form I-290B
when filed in connection with Form I-485.
Extend fee exemption for Form I-131 for asylees.
Eliminate proposed fee exemption for refugees filing Form
I-131.
Asylees should not be treated differently from their
humanitarian counterparts with respect to fee exemptions.
DHS should exempt fees for all asylum-related benefits
through adjustment of status.
Add a fee exemption for Form I-485 for Asylum-based
applicants. The same legal definition of a refugee applies to asylees,
and that both vulnerable populations who face economic hardship, are
eligible for public assistance, and are not subject to the public
charge ground of inadmissibility. The proposed rule justifies new fee
exemptions for refugees because refugees are not subject to the public
charge ground of inadmissibility and because refugees have access to
federally funded assistance. However, the same is true of asylees, and
DHS does not explain why these justifications should not also lead to
new fee exemptions for asylees.
Justification for exempting fees related to humanitarian
classifications--that the underlying status is fee-exempt and such
applicants face economic hardships--apply equally to asylees.
The proposed I-485 fee, along with the cost of a medical
exam, would be prohibitively expensive.
The rule ``disingenuously'' frames the I-589 fee exemption
as a new benefit for asylum seekers even though this does not differ
from the current fee schedule.
Disagree that refugees are distinguishable from asylees
because refugees are required to adjust status within one year while
asylees are not required to do so, stating that most refugees do not in
fact apply for adjustment one year after their admission.
Asylees seek to adjust status as soon as possible to
obtain stability for themselves and their family members.
It is unfair to expect asylees to delay filing certain
applications given the harmful impact that such delays will have on
their ability to achieve stability, security, and family reunification;
neither asylees nor refugees have gained sufficient financial security
in their first year in such status in the United States to be able to
afford the adjustment application fee.
Asylum seekers often have little or no resources and
experience ongoing financial hardship after a grant of asylum.
Disagree that the large number of asylees justifies the
differences in fee exemptions between refugees and asylees because the
large number of asylees demonstrates a need to reduce barriers to
permanent resident status for this vulnerable population.
Providing fee exemptions for asylee I-485s could improve
efficiency, since under the current rules some families can only afford
to file one application at a time. This can cause derivatives to file
nunc pro tunc I-589s before adjusting status if the principal asylee
naturalizes or the derivatives ceases to meet the definition of a
spouse or child before they adjust status.
USCIS should reverse the 2020 rule and eliminate the
asylum fee in the proposed rule which avoids the issues caused by prior
proposed rules.
DHS should codify fee exemptions for all forms filed by
asylees through adjustment and family reunification because asylum
seekers and recent asylees are vulnerable to exploitation and
trafficking.
DHS should exempt asylees from fees for a refugee travel
document and that, if the I-131 fee was truly linked to the DOS fee for
a U.S. passport, it would be one-tenth of the price because, unlike a
ten-year passport, a refugee travel document is only valid for one
year.
Exempting fees for renewal Forms I-765 would benefit
asylees and their communities through the ability to maintain
employment and unexpired identity documents.
Response: Form I-589, Application for Asylum and for Withholding of
Removal is fee exempt for all filers. See 8 CFR 106.2(a)(28). Asylees
are exempted from the fees for Form I-602, Application by Refugee for
Waiver of Inadmissibility Grounds, Form I-730, Refugee/Asylee Relative
Petition and Form I-765, Application for Employment Authorization
(initial request by asylees and initial request by asylum applicants).
Most forms used by asylum applicants or asylees are already fee exempt
or fee-waiver eligible. 8 CFR 106.3(b). DHS considered the views of the
commenters, and the number of asylum-based filings made each year and
decided that the transfer of the costs of such filings to other
petitions and applications would result in an excessive shift to other
fee payers. DHS acknowledges that additional fee exemptions for asylees
could reduce financial burden on these applicants. DHS will continue to
exempt the initial Form I-765 fee for persons with pending asylum
applications. See 8 CFR 106.2(a)(43)(iii)(D) and (G).\196\ DHS will
[[Page 6273]]
also fee exempt applicants who have applied for asylum or withholding
of removal before EOIR (defensive asylum) or filed Form I-589 with
USCIS (affirmative asylum) for initial filings of Form I-765. See
proposed 8 CFR 106.2(a)(43)(iii)(D) and (G).
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\196\ Except for individuals applying under special procedures
under the settlement agreement reached in American Baptist Churches
v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991).
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DHS has decided to not exempt asylees from paying the fee for Form
I-131 for refugee travel documents or advance parole (although at the
lower passport fee level) \197\ and Form I-485 for adjustment of
status. Although asylees and refugees are in some respects similarly
situated populations, refugees are required to apply to adjust status
after they have been physically present in the United States for at
least one year, while asylees are not required to apply for adjustment
of status within a certain period. Therefore, DHS decided to not shift
the costs of adjudicating requests from asylees for adjustment of
status, refugee travel documents and advance parole to all or certain
other fee payers. Asylees filing Forms I-485 and I-131 have the option
to either pay the fees or request a fee waiver. DHS disagrees that the
sole considerations for providing a fee exemption are that the
underlying status is fee exempt and the requestors historically face
economic hardships. As explained throughout this preamble, DHS
exercises its discretionary authority to provide fee exemptions for
benefits and services based on numerous factors, including balancing
beneficiary-pays and ability-to-pay principles, burden to the requestor
and to USCIS, as well as humanitarian considerations and other policy
objectives as supported by data. Though DHS may consider the similar
circumstances of different categories of requestors in providing a fee
exemption, as with VAWA, T nonimmigrant status, and U nonimmigrant
status, whether the benefit request is submitted by populations with
similar characteristics is not solely determinative of whether DHS
provides a fee exemption. DHS disagrees that refugees and asylees
should be provided the same fee exemptions simply because the two
groups share similar characteristics. There are distinguishing
characteristics between refugees and asylees. See INA 209, 8 U.S.C.
1159. Also, the population of asylees has far outnumbered the
population of refugees in recent years.\198\ DHS believes that these
differences in circumstance, in conjunction with the transfer of costs
to other fee-paying benefit requestors, justifies providing certain fee
exemptions for refugees and not for asylees because, overall, asylees
are better able to time the filing of Form I-485 or an associated
benefit request with their ability to pay the fees or request a fee
waiver. DHS maintains this position in this final rule.
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\197\ The fee for refugee travel documents is set at the same
level as the fee for a U.S. passport consistent with U.S.
obligations under Article 28 of the 1951 Convention relating to the
Status of Refugees, as adopted by reference in the 1967 Protocol
relating to the Status of Refugees. See 8 CFR 106.2(a)(7)(i) and
(ii).
\198\ For example, in fiscal years 2019-2021, 48,888, 30,964,
and 17,692 individuals respectively received asylum status, whereas
29,916, 11,840, and 11,454 individuals were admitted as refugees.
See U.S. Dep't of Homeland Security, Office of Immigration
Statistics, Annual Flow Report, Refugees and Asylees: 2021,
available at https://www.dhs.gov/sites/default/files/2023-03/2022_0920_plcy_refugees_and_asylees_fy2021_v2.pdf.
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DHS disagrees that any potential decrease in nunc pro tunc filings
of Form I-589 would reduce burdens to USCIS to such a degree that would
justify the cost of this fee exemption. In FY 2022, of the total 41,160
Form I-589 filings, approximately 92 applications (0.2 percent) were
filed nunc pro tunc. In the same year, Form I-485s filed by asylees
accounted for 57,029 of the annual total of 608,734 Form I-485s filed
(9 percent). Considering the 5-year annual averages of total Form I-485
filings (551,594) and fee-paying Form I-485 filings (471,625), on
average, 85 percent of all Form I-485s are fee-paying. While not a
direct comparison, the commenter's suggestion would result in
additional forgone revenue on tens of thousands of Form I-485s to
reduce nunc pro tunc I-589 filings that number less than 100 annually.
Thus, the commenter's assertion that the additional fee exemption would
reduce burden to USCIS is not supported by data and DHS declines to
adopt the commenter's suggestion.
DHS does not adopt the commenters' recommendation to add new fee
exemption to the final rule for Form I-290B when filed by refugees and
asylees in connection with Form I-730. DHS recognizes that we are
providing a fee exemption for a Form I-290B filed by other populations
in this final rule that have characteristics that resemble the
population that files Form I-730. However, USCIS Form I-290B fee
payment data indicates that affordability or accessibility has not
generally been a problem for this population. Most individuals filing
Form I-290B in association with a Form I-730 during FY 2019 through FY
2022 paid the filing fee. During this period, USCIS received a total of
376 Form I-290Bs filed in association with a Form I-730. Of those, only
57 (15 percent) were fee waived while 269 (72 percent) paid the full
fee. Additionally, rejections were low and decreased over time. Of the
376 total filings, 50 (13 percent) were rejected, with no rejections
occurring in FY 2021 and only two occurring in FY 2022. The
demonstrably low demand for fee waivers, combined with the low
incidence of rejection, does not support the need for a fee exemption
for this population. Additionally, DHS addresses the public's concerns
regarding fee waiver adjudication as discussed earlier in this preamble
by codifying eligibility requirements and providing clarifying
guidance.
DHS does not adopt the commenters' recommendation to add new fee
exemption to the final rule for Form I-290B when filed by refugees and
asylees in connection with Form I-485. The commenters did not provide
any explanation as to why specifically form I-485 filed by a refugee or
asylee should be entitled to a fee-exempt I-290B. Refugee-based I-485s
are fee exempt and asylum-based I-485s are eligible for fee waiver,
such that re-filing does not pose economic obstacles to economically
disadvantaged refugee and asylee adjustment applicants.
DHS does not adopt the commenter's recommendation that the fee for
asylees filing Form I-131 be prorated in accordance with the validity
period of the refugee travel document relative to the 10-year passport.
Consistent with U.S. treaty obligations, DHS does not charge a fee for
a Refugee Travel Document that is greater than the fee charged for a
U.S. passport.\199\ This final rule sets the fee for Refugee Travel
Documents using Form I-131, Application for Travel Document, at an
amount which is far less than the Refugee Travel Document fee-paying
unit cost \200\ and equivalent to the current U.S. passport fee.\201\
The requirement to match the fees is not related to the effective
period that a requestor may use either document. In
[[Page 6274]]
general, DHS does not set fees to reflect an estimated monetary value
of a benefit during its validity period. As explained earlier in this
preamble, DHS charges fees at a level to ``ensure recovery of the full
costs of providing all such services, including the costs of similar
services provided without charge to asylum applicants or other
immigrants.'' \202\ In this final rule, DHS maintains that the fee for
asylees filing Form I-131 to request a refugee travel document will be
kept below cost and consistent with the U.S. passport fee, increasing
from $135 to $165. See Table 1.
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\199\ See Article 28 of the 1951 Convention relating to the
Status of Refugees, as adopted by reference in the 1967 Protocol
relating to the Status of Refugees; 8 CFR 106.2(a)(7)(i) and (ii).
\200\ Compare Table 1, with Immigration Examinations Fee
Account, Fee Review Supporting Documentation with Addendum, Nov.
2023, Appendix Table 4. The fee-paying unit cost for I-131 Refugee
Travel Document is $535.
\201\ At the time of this rulemaking, the DOS passport fees for
a U.S. Passport Book consist of a $130 application fee and a $35
execution (acceptance) fee, for a total of $165. Children under 16
applying for a U.S. Passport Book pay a $100 application fee and a
$35 execution (acceptance) fee, for a total of $135. See U.S.
Department of State--Bureau of Consular Affairs, ``U.S. Passports,''
``Passport Fees,'' available at https://travel.state.gov/content/travel/en/passports/how-apply/fees.html (last viewed Sept. 15,
2023).
\202\ See INA sec. 286(m), 8 U.S.C. 1356(m). The longstanding
interpretation of DHS is that the ``including'' clause in section
286(m) does not constrain DHS's fee authority under the statute. The
``including'' clause offers only a non-exhaustive list of some of
the costs that DHS may consider part of the full costs of providing
adjudication and naturalization services. See 8 U.S.C. 1356(m); 84
FR 23930, 23932 n.1 (May 23, 2019); 81 FR 26903, 26906 n.10 (May 4,
2016).
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h. TPS
Comment: Commenters asked USCIS to retain the fee exemption for
Form I-765 filed by initial TPS applicants under age 14 and over age 65
because:
An EAD might be the only identification available to an
unaccompanied child and it plays a vital role in securing critical
support.
Increasing fees on children and retired or disabled adults
is inconsistent with the balancing of equities cited throughout the
proposed rule.
These applicants would be required to seek a fee waiver
with each application.
Response: DHS recognizes commenters' concerns but believes that our
rationale in the proposed rule remains valid and not retaining the Form
I-765 fee exemption for TPS applicants below age 14 and above age 65 is
the best policy choice. There continues to be no fee for Form I-821 TPS
re-registration and fee waivers are available for Form I-765 and
initial Form I-821 for eligible applicants. See 8 CFR 106.3(a)(3).
As explained in the proposed rule, USCIS no longer requires TPS
applicants to file Form I-765 for information collection purposes, and
only requires it if the TPS applicant wants an EAD. Persons applying
for TPS who do not wish to request employment authorization need only
file Form I-821. The reason that the INS fee exempted a Form I-765
filed by initial TPS applicants under age 14 and over age 65 from a fee
no longer exists. See 88 FR 463. Thus, DHS will maintain that all TPS
applicants requesting employment authorization must pay the filing fee
for Form I-765 or request a fee waiver.
i. Requests for Additional Fee Exemptions
Comment: Multiple commenters recommended that USCIS exempt fees for
all survivor or victim-based applications because poverty and barriers
to financial resources are felt across all survivor-based immigration
categories. The commenter also stated that immigrant survivors often
face additional financial burdens and safety risks when they try to
gather documents needed to support fee waivers that might be controlled
by abusers or exploitative employers.
One commenter recommended that DHS should exempt application fees
for all forms of humanitarian relief through adjustment of status,
since these populations face similar obstacles. The commenter added
that DHS should provide a fee exemption for I-765 renewal and
replacement applications for all humanitarian relief holders, including
those based on a pending application for adjustment of status. The
commenter stated that gaps in employment authorization can result in
job loss. The commenter said that exempting humanitarian applicants
from paying these fees would streamline the volume of fee waiver
requests to adjudicate, lower personnel cost, and help ensure the
continued economic independence of survivors.
Response: DHS acknowledges the commenters' concerns regarding the
financial burden to individuals seeking survivor or victim-based
immigration benefits. DHS weighed these considerations given the
commenters' feedback against the number of VAWA-, T-, and U-related
filings it receives each year and the transfer of costs to other
petitions and applications if these filings were fee exempt through
final adjudication of the adjustment of status application and
emphasizes the benefit to survivors in providing additional fee
exemptions, as well as the humanitarian nature of these programs, in
this final rule. As a result, DHS provides additional fee exemptions in
the final rule for VAWA, T nonimmigrant, and U nonimmigrant populations
to include adjustment of status and associated forms. See 106.3(b)(6);
see also Table 5B.
DHS declines to provide fee exemptions for all humanitarian
categories of requestors for all forms filed through adjustment of
status, as suggested by the commenter. DHS also notes that requests for
humanitarian relief such as asylum (Form I-589), T nonimmigrant (Form
I-914), U nonimmigrant (Form I-918), or VAWA self-petition (Form I-
360), are fee exempt. In this final rule DHS provides fee exemptions
and fee waiver eligibility for forms filed through adjustment and
associated ancillary forms by certain humanitarian categories of
requestors consistent with our fee-setting approach as explained in
this preamble.
DHS disagrees with the commenter's characterization of the
provision of additional fee exemptions for certain humanitarian
categories as ``arbitrary'' or ``unjustified'' as it applies to the
proposed rule and this final rule. As described throughout this
preamble, DHS maintains fee waivers, reduces fees, and provides new fee
exemptions to address accessibility and affordability where DHS has
determined that a different approach would inequitably impact the
ability of those who may be less able to afford the fees to seek an
immigration benefit for which they may be eligible. DHS believes this
final rule represents our best effort to balance access, affordability,
equity, and national interest while providing USCIS with the funding
necessary to maintain adequate services.
Comment: One commenter stated that DHS should make I-765
applications filed under category (c)(14) fee exempt for victims and
witnesses of workplace exploitation. The commenter said that applicants
requesting employment authorization under this category will have
either suffered or witnessed workplace abuse and will be at risk of
termination or retaliation by their abusive employers, and some may
also have recently lost their jobs or may be owed back wages. The
commenter added that, because this basis for requesting deferred action
and employment authorization is new, the anticipated volume of these
requests will be low and will not materially burden USCIS if the fees
for these Form I-765s are exempted.
Response: On October 12, 2021, DHS issued a Policy Statement in
support of the worksite enforcement efforts being conducted by the
Department of Labor (DOL) in conjunction with other government
agencies. The goal of DHS's policy is to ensure that we maximize the
impact through policy and practices that will reduce the demand for
illegal employment and help noncitizens navigate the USCIS process.
Noncitizens who fall within the scope of a labor agency investigation
and have been granted deferred action may be eligible for deferred
action-based employment authorization (Form I-765 (C14). However, the
C14 employment classification is not unique to these applicants. For
this reason, DHS declines to fee exempt the C14 classification for Form
I-765. However,
[[Page 6275]]
DHS has expanded the availability of fee waivers to ensure that the
most vulnerable applicants are able to access the relief that they
need. See 8 CFR 106.3.(a)(3)(ii)(E).\203\
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\203\ See DHS, ``Policy Statement 065-06: Worksite Enforcement:
The strategy to Protect the American Labor Market, the Conditions of
the American Worksite, and the Dignity of the Individual,''
available at https://www.dhs.gov/sites/default/files/publications/memo_from_secretary_mayorkas_on_worksite_enforcement.pdf (last
viewed Sept. 1, 2023).
---------------------------------------------------------------------------
Comment: Some commenters stated that it is unclear if Form I-824
would be fee exempt for certain humanitarian categories, and USCIS
should make it exempt for SIVs, U, T, VAWA, asylees, and refugees.
Other commenters said that Form I-824 should be free because it is used
when USCIS has made a mistake.
Response: DHS appreciates the commenters' concern that the proposed
fee exemptions for Form I-824 lacked clarity. In this final rule, DHS
provides a fee exemption for T visa applicants and T nonimmigrants, U
visa petitioners and U nonimmigrants, VAWA, abused spouses and children
categories, and SIVs for Form I-824. See 8 CFR 106.3(b); Table 5B. DHS
declines to provide a fee exemption for Form I-824 for asylees and
refugees as these populations may not use this form.
Comment: One commenter stated that for immigrant victims of crime
and abuse eligible for humanitarian immigration relief, including T
nonimmigrant status, U nonimmigrant status, relief under VAWA
(including Form I-751s), CAA, HRIFA, and the Nicaraguan Adjustment and
Central American Relief Act (NACARA), VAWA cancellation of removal,
VAWA suspension of deportation, and SIJ classification, the Form I--
290B should be fee exempt. The commenter explained that requiring
indigent immigrants to file a fee waiver for this form highlights the
problematic approach USCIS has historically taken to fee waiver
requests that impedes due process and cuts off low-income immigrant
crime victims from immigration relief they would otherwise be able to
receive. Similarly, other commenters expressed concern with the
exclusion of Form I-290B appeals of U-based adjustment of status from
the fee exemption provisions. Another commenter stated that limiting
fee exemptions for VAWA self-petitioners filing I-290Bs to when the I-
485 and I-360 are concurrently filed limits due process and access to
justice solely based on administrative technicality.
Multiple commenters stated that the Form I-290B should be exempt
for refugees and asylees to the same extent that it is for other
humanitarian immigration categories, though some also stated that Form
I-290B need not be fee exempt for every benefit sought by an asylee or
refugee. Commenters asserted that Form I-290B should be fee exempt when
filed in connection Form I-730. One commenter emphasized that the I-730
is the only vehicle for family reunification for asylees and refugees,
while another said that the lack of a fee exemption would result in
numerous petitioners each year suffering the devastating consequences
of family separation.
Additional commenters stated that adding fee exemptions for I-290Bs
filed by asylees and refugees would constitute a logical outgrowth of
the proposed regulation, which eases the fee burden on most
humanitarian categories of requestors. The comments said that DHS
should offset the cost of the I-290B fee exemption for refugees and
asylees when filed in connection with the I-730 by retaining the fee
requirement for I-131s filed by refugees because refugees with an
ability to travel internationally presumably have an ability to pay for
the I-131 and do not have the ``presumptive'' economic hardship that
justifies other fee exemptions for this population.
Response: In this final rule, DHS provides a fee exemption for Form
I-290B if it is filed for a motion or appeal of a denial of any benefit
request before adjusting status or for Form I-485 and associated
ancillary forms for the following humanitarian categories: T and U
nonimmigrant status, VAWA, abused spouses and children adjusting status
under CAA and HRIFA, SIV, and SIJ. See 8 CFR 106.3(b); Table 5B. DHS
declines to provide additional fee exemptions for asylees and refugees
in this final rule for the reasons discussed elsewhere in this
preamble.
Comment: Some commenters recommended that DHS create fee exemptions
for Form N-400s in certain situations, specifically:
There should be an automatic fee waiver for all Form N-400
applicants with Form N-648 that meets the requirements for the medical
certificate for disability exceptions.
DHS should also provide fee exemptions for naturalization
applications filed by refugees because the Refugee Convention calls on
participants to facilitate the assimilation and naturalization of
refugees as far as possible, and that DHS is obligated to ensure that
the increased naturalization fees do not hinder the naturalization of
refugees.
Response: DHS appreciates that many applicants filing Form N-648,
Medical Certification for Disability Exceptions, may be unable to pay
the Form N-400, Application for Naturalization, filing fee but declines
to provide a general fee exemption in this situation. Fee-exemption
eligibility must be determined at the time a form is received by USCIS.
The adjudication of Form N-648 is performed at the time of the N-400
interview after an Immigration Services Officer (ISO) has verified that
the N-648 relates to the applicant.\204\ USCIS would be unable to
determine whether the Form N-648 meets the requirements before
exempting the Form N-400 fee. Furthermore, were USCIS to adjudicate
Form N-648 at the time of receipt, before Form N-400, this would still
require a full review of the applicant's A-file.\205\ Because the ISO
adjudicating the N-400 would be required to perform another full review
of the applicant's A-file,\206\ this would result in an inefficient
duplication of USCIS efforts. In addition, not all applicants filing
Form N-648 are unable to pay the Form N-400 fee. Form N-648 does not
have any fee and applicants can still request a fee waiver or reduced-
fee Form N-400 ($380) if they are unable to pay the online filing fee
of $710, a $50 savings over the paper-based filing fee of $760.
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\204\ See USCIS, ``USCIS Policy Manual,'' Vol. 12, ``Citizenship
& Naturalization,'' Part E, ``English & Civics Testing &
Exceptions,'' Chp. 3, ``Medical Disability Exception (Form N-648)''
[12 USCIS-PM E.3], available at https://www.uscis.gov/policy-manual/volume-12-part-e-chapter-3 (last visited Aug. 25, 2023).
\205\ Id.
\206\ USCIS, ``USCIS Policy Manual,'' Vol. 12, ``Citizenship &
Naturalization,'' Part B, ``Naturalization Examination,'' Chp. 3,
``Naturalization Interview,'' Section B, ``Preliminary Review of
Application'' [12 USCIS-PM B.3(B)], available at https://www.uscis.gov/policy-manual/volume-12-part-b-chapter-3 (last visited
Aug. 25, 2023).
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Currently, refugees are provided fee exemptions for their immediate
needs upon arrival and generally would not be eligible for
naturalization until 5 years after entry into the United States. DHS
believes that at the time refugees are for applying for naturalization
they may be employed and able to pay fees. Additionally, the Refugee
Convention calls on States to facilitate the assimilation and
naturalization of refugees; however, fee exemptions are not a
requirement under the Convention. Article 34 of the Refugee Convention
states in part that States shall make every effort to reduce the cost
of naturalization proceedings.\207\
[[Page 6276]]
Although DHS has decided not to extend fee exemptions for
naturalization to refugees, USCIS offers reduced fee options, and some
applicants may be eligible for fee waivers.
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\207\ While the United States is not a party to the 1951 Refugee
Convention, it is party to the 1967 Refugee Protocol, under which
States agree to apply articles 2 through 34 of the Convention. See
Protocol relating to the Status of Refugees art. 1, Dec. 16, 1966,
19 U.S.T. 6223.
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G. Fee Changes by Benefit Category
1. General Fee Provisions
a. Fee Payment and Receipt Requirements
Comment: A commenter stated that applicants should retain the right
to request credit card refunds, stating that this is one of the few
means of recourse applicants have when facing apparently non-responsive
government services. They stated that barring credit card disputes
would diminish government transparency. A commenter stated that, where
USCIS error prejudices individuals, filing fees should be refunded. A
commenter wrote that the USCIS fee structure may confuse applicants and
recommended that USCIS send a follow-up invoice rather than reject
applications submitted with incomplete fees.
Response: USCIS is committed to meeting its processing time goals
and reducing the immigration benefit request processing backlog. USCIS
acknowledges that since it last adjusted fees in FY 2016, USCIS has
experienced elevated processing times compared to the goals established
in the 2007 fee rule. See 72 FR 29851, 29858-29859 (May 30, 2007).
Processing delays have contributed to case processing backlogs.
However, with the high volume of submissions that USCIS continues to
experience, steps that may delay adjudication of a request or require
special handling, such as holding cases while USCIS bills for unpaid or
partially unpaid fees, would only exacerbate backlogs. Therefore, USCIS
fees generally are non-refundable and must be paid when the benefit
request is filed. See 8 CFR 103.2(a).
As explained in the proposed rule, credit card disputes are
generally filed by requestors whose requests have been denied, who have
changed their mind about their requests, or who have asserted that the
service was not provided or was unreasonably delayed. See 88 FR 402,
483-484 (Jan. 4, 2023). USCIS makes its no-refund policy clear on its
website.\208\ Filing and biometric service fees are final and non-
refundable, regardless of any action USCIS takes on an application,
petition, or request, or if requestors withdraw a request. However,
when USCIS receives a payment in error, it may refund it. For example,
USCIS refunds fees for Form I-131, Application for Travel Document,
when erroneously paid for humanitarian parole on behalf of a
beneficiary who is a Ukrainian citizen.\209\ USCIS provides other
examples on its website.\210\ Often, USCIS has processed the request to
completion and performed the work for which the fee was charged when
the credit card dispute is lodged. DHS understands that no one wants to
be determined ineligible and denied when they complete, submit, and pay
for an immigration benefit request. However, DHS is authorized to
charge fees to cover the cost of adjudicating requests and paying a fee
is not a guarantee of a particular outcome.
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\208\ See USCIS, Filing Fees, available at https://www.uscis.gov/forms/paying-uscis-fees (last viewed on Sept. 22,
2022).
\209\ See USCIS, Uniting for Ukraine, https://www.uscis.gov/ukraine (last reviewed/updated: June 1, 2023).
\210\ E.g., USCIS, USCIS Removes Biometrics Requirement for Form
I-526E, Immigrant Petition by Regional Center Investor, petitioners,
https://www.uscis.gov/newsroom/alerts/uscis-removes-biometrics-requirement-for-form-i-526e-petitioners (last reviewed/updated: Mar.
15, 2023); USCIS, Certain Petitioners for U Nonimmigrant Status May
Receive a Refund for Applications for Employment Authorization
Submitted Before Sept. 30, 2021, https://www.uscis.gov/newsroom/alerts/certain-petitioners-for-u-nonimmigrant-status-may-receive-a-refund-for-applications-for-employment (last reviewed/updated: Nov.
22, 2021).
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USCIS also has fee payments withdrawn due to credit card disputes
after the request is approved. When certain benefit request fee
payments are dishonored or declined, or where an approved applicant
successfully disputes their USCIS fee payment with their credit or
debit card company, USCIS may send the requester an invoice for the
unpaid fee. However, USCIS will generally send the requester a notice
of intent to revoke (NOIR) the approval for the payment deficiency. The
NOIR usually results in the amount due being paid, but if not, USCIS
may revoke the approved benefit request. See 8 CFR 103.7(a)(2)(iii).
USCIS data indicates that the credit card dispute process defaults
to the consumer, and it has become a popular method for credit card
holders whose immigration benefit requests are denied and delayed
getting their money back. When USCIS performs services for which a fee
has not been paid, such as when a chargeback of the fee payment occurs,
the costs incurred result in a drain on IEFA reserves that are meant
for other uses. Longstanding DHS regulations at 8 CFR 103.2(a)(1)
provide that fees paid to USCIS for immigration benefit requests will
not be refunded regardless of the result of the benefit request or how
much time the adjudication requires. Consistent with that limitation,
DHS proposed that fees paid to USCIS using a credit or debit card are
not subject to dispute by the cardholder or charge-back by the issuing
financial institution. See 8 CFR 106.1(e). USCIS is almost entirely fee
funded. If every customer who experiences delays or is denied a benefit
would be able to successfully dispute their USCIS fee payment with
their credit card company, it could impose significant financial harm
on USCIS. As stated elsewhere in this preamble, USCIS is working to
reduce processing delays, and we have reduced the budget to be
recovered by fees in this final rule as a result of increased
efficiencies. DHS declines to make any changes to the final rule in
response to these comments.
In addition, DHS is adding a clarifying provision to its
regulations at 8 CFR 103.2(a)(7) governing the submission of benefit
requests to ameliorate the risks that may result from the changes being
made in the final rule. DHS is adding several fee discounts, fee waiver
eligibility and fee exemptions in this final rule to address the
concerns of commenters about the negative impacts of the new fees on
low income, small employer, nonprofit, military, elderly, and young
requestors. See 8 CFR 106.3(b) (new exemptions); 8 CFR 106.2(a)(3),
(4), (11), and (c)(13) (discounts for small employers and nonprofits);
8 CFR 106.2(a)(3) & (4) (Form I-129 fee discounts); 8 CFR
106.2(a)(20)(ii) (child's fee for Form I-485, Application to Register
Permanent Residence or Adjust Status); 8 CFR 106.2(b)(3)(ii) (discount
for Form N-400, Application for Naturalization); 8 CFR 106.2(a)(32) and
(46) (adoption fee exemptions); 8 CFR 106.2(b)(7)(ii) and (8) (adoption
fee exemptions). USCIS will review the filing to determine if the
requestor qualifies for a fee waiver, fee exemption, or lower fee when
the request is received. However, to protect USCIS from requestors that
may submit a lower fee for which they may not qualify and that USCIS
may not catch at intake, DHS provides that if USCIS accepts a benefit
request and determines later that the request was not accompanied with
the correct fee, USCIS may deny the request. 8 CFR
103.2(a)(7)(ii)(D)(1); see also 88 FR 402, 481-482. Further, because
USCIS may adjudicate certain requests in a few days, if the benefit
request was approved before USCIS determines the correct fee was not
paid, the approval may be revoked upon notice. Id.
Comment: Commenters opposed the proposal to allow USCIS to require
that
[[Page 6277]]
certain fees be paid using a certain payment method or that certain
fees cannot be paid using a particular method. See 8 CFR 106.1(b). The
commenters stated that this could disallow payment methods such as
cashier's checks or money orders, to the detriment of low-income
applicants and petitioners who may not have internet access, U.S. bank
accounts, established credit-scores, or access to reloadable debit
cards necessary for some forms of payment. The commenters requested
that USCIS accept cashier's checks and money orders as methods of
payment for all applications, petitions, and requests. Some stated that
access to internet and prepaid debit cards is limited for low-income
applicants. Some stated that USCIS should not rely on public libraries
to meet the need for internet access because of libraries' under-
utilization. A commenter requested that any changes to acceptable
payment methods should be accompanied with a widespread notice to the
public of this change and a grace period to facilitate smooth
processing and promote overall fairness.
A commenter stated that Form G-1450 payments are often improperly
rejected even when all the information supplied is correct and legible
and USCIS should allow submission of cashier's checks and money orders.
Commenters also requested that Form I-140 and I-907 fees be payable
from outside of the United States. A commenter suggested that a single
check or money order be sufficient for all fees related to a single
application to simplify returning funds from a money order.
Response: In this final rule, DHS does not restrict the method of
payment for any immigration benefit request. This final rule clarifies
the authority for DHS to prescribe certain types of payments for
specific immigration benefits or methods of submission. DHS does not
have data specific to USCIS benefit requestors' access to the internet
or banking but understands that populations submitting requests may
have attributes that make access to a bank account challenging. DHS
acknowledges that some requestors may not use banks or use them on a
limited basis for several reasons. It appears, however, that a person
can alternatively purchase a pre-paid debit card, cashier check or
money order that can be used to pay their benefit request fee.\211\ In
addition, since 2018, requesters have been able to use a credit card to
pay for a USCIS form filing fee that gets sent to and processed by one
of the USCIS lockboxes or, for credit card transactions that do not
exceed the limits set forth in the Treasury Financial Manual, split the
fees between more than one credit card.\212\ More recently, USCIS
expanded a pilot program that allows credit card payments for service
center filings.\213\ The credit card used does not have to be the
applicant's; however, the person who is the owner of the credit card
must authorize use of his or her credit card. In addition, comments
that libraries are underused indicate they remain available for free
online services, access to information and computers that the public
may use to read, complete, print or submit benefit requests.
Nevertheless, in evaluating future changes to acceptable means of
payment for each immigration benefit request, DHS will consider the
availability of internet access and different means of payment to the
affected populations.
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\211\ DHS understands that some commenters are concerned about
the hidden fees of certain prepaid debit cards; however, many cards
exist with no fees. See, e.g., CardRates.com, 6 Best Prepaid Debit
Cards with No Fees (Oct. 2023), available at https://www.cardrates.com/advice/best-prepaid-debit-cards-with-no-fees/
(last viewed Oct. 20, 2023).
\212\ See USCIS Expands Credit Card Payment Option for Fees,
https://www.uscis.gov/news/news-releases/uscis-expands-credit-card-payment-option-fees (last reviewed/updated Feb. 14, 2018).
\213\ See USCIS Service Center Expands Credit Card Payment Pilot
Program to Most Forms, available at https://www.uscis.gov/newsroom/alerts/uscis-service-center-expands-credit-card-payment-pilot-program-to-most-forms (last reviewed/updated Mar. 30, 2022).
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Regarding public notice, proposed changes to USCIS forms and
instructions are typically published in the Federal Register for notice
and comment. When USCIS finalizes a revised form, there is typically a
grace period or advance notice before customers are required to use a
revised version of the form. USCIS announces these changes on its
website. When DHS expands or limits acceptable instruments locally,
nationwide, or for certain USCIS benefit requests, it issues multiple
communications and provides sufficient advance public notice to
minimize adverse effects on any person who may have plans to pay using
methods that may no longer be accepted.\214\ Nevertheless, in response
to the public comments and to provide more certainty to stakeholders,
DHS has codified a 30-day advance public notification requirement
before a payment method will be changed. 8 CFR 106.1(b).
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\214\ See, e.g., USCIS Service Center Expands Credit Card
Payment Pilot Program to Most Forms, available at https://www.uscis.gov/newsroom/alerts/uscis-service-center-expands-credit-card-payment-pilot-program-to-most-forms (last reviewed/updated Mar.
30, 2022); USCIS Updates Fee Payment System Used in Field Offices,
available at https://www.uscis.gov/news/news-releases/uscis-updates-fee-payment-system-used-field-offices (last reviewed/updated Mar. 7,
2019).
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b. Biometric Services
Comment: A few commenters wrote support for eliminating the
separation of biometrics fees from the fee associated with their
underlying application. Commenters wrote:
Combining fees would reduce confusion and promote
efficiency.
They supported including biometric fees but disagreed that
doing so would lower fees overall.
A commenter requested an online scheduling system for
biometric appointments.
They recommended reusing immutable or persistent
biometrics, especially for highly iterative applications with shorter
grant periods biometrics to mitigate administrative burdens.
No fee should be paid when biometrics are reused.
A few commenters opposed absorbing the biometric services fee into
other fees, stating:
Not everyone is required to submit biometrics and people
should not be required to pay for something that is not needed.
It is disingenuous to suggest that integrating the
biometrics fee into the required filing fee reduces fee burdens while
simultaneously seeking to double the fees an individual would pay to
adjust status.
USCIS should eliminate the biometrics requirements for O-3
applicants, consistent with H and L applications to reduce confusion
and streamline the application process because there is no reason to
require biometrics information from O-3 applicants.
USCIS could lower its costs by improving its
communications with EOIR, especially for the purposes of coordinating
asylum and I-94 grants.
Response: DHS agrees with the comments in favor of incorporating
the cost of biometric services into the underlying immigration benefit
request fees. This approach aims to simplify the fee structure, create
a more user-friendly experience, reduce rejections of benefit requests
for failure to include a separate biometric services fee, and better
reflect how USCIS uses biometric information. As explained in the
proposed rule, the biometric services information used to calculate the
proposed fees included when USCIS may reuse information it already
collected. See 88 FR at 484-485 (Jan. 4, 2023). As explained elsewhere
in this rule, DHS limited the fee increases for some immigration
benefit requests by inflation or a lower
[[Page 6278]]
percentage from the proposed rule. This includes benefit requests that
typically require biometric services, such as Form I-90, Application to
Replace Permanent Resident Card, Form I-485, and Form N-400. As such,
the final fee for these forms is sometimes less than in the proposed
rule.
The INA provides DHS with the specific authority to collect or
require submission of biometrics in several sections. See, e.g., INA
section 235(d)(3), 8 U.S.C. 1225(d)(3) (``to take and consider evidence
of or from any person touching the privilege of any alien or person he
believes or suspects to be an alien to enter, reenter, transit through,
or reside in the United States or concerning any matter which is
material and relevant to the enforcement of this chapter and the
administration of the Service''); INA section 287(b), 8 U.S.C. 1357(b)
(powers of immigration officers and employees to administer oaths and
take evidence); INA sections 333 and 335, 8 U.S.C. 1444 (requirement to
furnish photographs for naturalization) and 1446 (investigation and
examination of applicants for naturalization); INA section 262(a), 8
U.S.C. 1302(a) (requirement for noncitizens to register and be
fingerprinted); INA section 264(a), 8 U.S.C. 1304(a) (authority to
prescribe contents of forms required for alien registration); see also
INA section 103(a)(3), 8 U.S.C. 1103(a)(3) (conferring broad authority
on the Secretary to ``establish such regulations; prescribe such forms
of bond, reports, entries, and other papers; issue such instructions;
and perform such other acts as he deems necessary for carrying out his
authority under the'' immigration laws). DHS regulations at 8 CFR
103.2(b)(9) accordingly provide that USCIS may require any applicant,
petitioner, sponsor, beneficiary, or individual filing a benefit
request, to submit biometrics, and pay the biometric services fee.
As USCIS has tried to adjust its biometrics policies over the
years, it has been stymied by the separate fee requirement and how it
would be collected. In addition, the separate fee results in many
requests being rejected for failure of the preparer to accurately
calculate the impact of the biometric services fee on the amount owed.
This rule will provide DHS flexibility in its biometrics submission
practices and policies to ensure that necessary adjustments can be made
to meet emerging needs, conduct biometrics-based background checks,
produce documents, and verify identities, while reducing filing
rejections.
In June 2023, USCIS launched a new tool which allows customers to
reschedule most biometric appointments before the date of the
appointment.\215\ USCIS periodically changes policies related to
biometric collection, such as the forms requiring biometric
services.\216\ Removing the biometrics services fee as a separate
requirement will streamline the ability of DHS and USCIS to change
biometrics polices and need and workload dictates. However, those
changes may be beyond the scope of the fee rule.
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\215\ USCIS, USCIS Launches Online Rescheduling of Biometrics
Appointments, available at https://www.uscis.gov/newsroom/news-releases/uscis-launches-online-rescheduling-of-biometrics-appointments (last reviewed/updated July 6, 2023).
\216\ See, e.g., USCIS, USCIS Extends Temporary Suspension of
Biometrics Submission for Certain Form I-539 Applicants, available
at https://www.uscis.gov/newsroom/alerts/uscis-extends-temporary-suspension-of-biometrics-submission-for-certain-form-i-539-applicants (last reviewed/updated Apr. 19, 2023).
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c. Online/Electronic Filing
Comment: Many comments were received on the proposed changes to
online and electronic filing. The commenters who were opposed to the
different fees for online and paper filing wrote:
They opposed having separate fees for online filing and
paper filings without providing additional rationale.
Paper filing fees should not differ from online filing
because it would result in financial and digital inequities, contravene
the objectives of E.O. 14012, burden applicants with low financial
inclusion, discriminate against individuals with lower income, certain
disabilities, low literacy, inability to use technology, people living
in rural or remote areas, who lack access to broadband and computers;
citing a 2021 Pew Research Center research on race and access to
internet and computers, and a 2022 study showing that one-in-five U.S.
households including many racial and ethnic minority households are not
connected to the internet.
2020 study on the ``Digital Divide'' during the COVID-19
pandemic; a 2020 DHS study on poverty and internet access indicating
that one in six people living in poverty in the United States have no
internet access, multiple sources on internet access in various
locations, a 2021 Pew Research study of which older Americans seldom
use the internet, and a 2022 publication on low rates of smartphone
ownership among seniors.
The fees would result in chaos and confusion for
unrepresented people, including missed deadlines, rejected cases, and
delays.
Applicants should not be punished for being unable to file
online.
Many applicants cannot file online due to language
barriers, lack of computer skills, as well as access and resources to
submit online.
The proposal would subject applicants with low tech
literacy, such as seniors and people with lower education, to scams
claiming to assist in digital filing.
The proposal would disadvantage survivors of domestic
violence, human trafficking, and other serious crimes who are not able
to file applications for protected case types online.