[Federal Register: May 30, 2007 (Volume 72, Number 103)]
[Rules and Regulations]
[Page 29851-29874]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30my07-4]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 103
[Docket No. USCIS-2006-0044; CIS No. 2393-06]
RIN 1615-AB53
Adjustment of the Immigration and Naturalization Benefit
Application and Petition Fee Schedule
AGENCY: United States Citizenship and Immigration Services, DHS.
ACTION: Final rule.
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SUMMARY: This rule adjusts the fee schedule for U.S. Citizenship and
Immigration Services (USCIS) immigration and naturalization benefit
applications and petitions, including nonimmigrant applications and
visa petitions. These fees fund the cost of processing applications and
petitions for immigration benefits and services, and USCIS' associated
operating costs. USCIS is revising these fees because the current fee
schedule does not adequately reflect current USCIS processes or recover
the full costs of services provided by USCIS. Without an immediate
adjustment of the fee schedule, USCIS cannot provide adequate capacity
to process all applications and petitions in a timely and efficient
manner. In addition, the revised fees will eliminate USCIS' dependency
on revenue from interim benefits, temporary programs, and premium
processing fees. This rule also merges fees for certain applications
and petitions so applicants and petitioners will only have to pay a
single fee. In addition, the rule expands the classes of aliens that
will be exempt from paying filing fees for certain immigration
benefits, and modifies the criteria for waiving the filing fee due to
an individual's inability to pay. Based on comments received by USCIS
during the public comment period, this rule changes the fees for
adjustment of status applications, and the fee waiver and exemption
eligibility criteria for several immigration benefits. This final rule
will provide sufficient funding for USCIS to meet national security,
customer service, and processing time goals, and to sustain and improve
service delivery.
[[Page 29852]]
DATES: This rule is effective July 30, 2007. Applications or petitions
mailed, postmarked, or otherwise filed, on or after July 30, 2007 must
include the new fee.
FOR FURTHER INFORMATION CONTACT: Paul Schlesinger, Chief, Budget
Division, Office of Planning, Budget and Finance, United States
Citizenship and Immigration Services, Department of Homeland Security,
20 Massachusetts Avenue, NW., Suite 4052, Washington, DC 20529,
telephone (202) 272-1930.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Final Rule
A. Application To Register Permanent Residence or Adjust Status
B. Intercountry Adoptions
C. Fee Waivers and Exemptions
D. Miscellaneous Changes and Corrections
E. Summary of Final Fees
III. Public Comments on the Proposed Rule
A. General Comments
B. Relative Amount of Fees
1. Recovery of Additional Costs and Enhancements
2. Proposed Fees Are Unreasonably High
3. Improve Service, Reduce Inefficiencies
4. Increases Relative to Time
5. Increases Relative to Other Standards
6. Grandfathering
7. Budget Decisions Necessary To Administer Immigration Benefits
8. Reorganization
C. Alternative Sources of Funding
1. Appropriated Funds
2. Finding Other Revenue Sources
D. Comments on Specific Benefit Application and Petition Fees
1. Naturalization Application
2. Application To Register Permanent Residence or Adjust Status
3. Employment Authorization for Students
4. Application for Advance Processing of Orphan Petition
5. Entrepreneurs
6. Effect on Availability of Skilled Workers
E. Fee Waivers and Exemptions
1. Victims and Asylee Adjustment of Status Applications
2. Special Immigrant--Juvenile
3. Biometric Fee
F. Authority To Set and Collect Fees
1. Authority Under the INA
2. General Authority for Charging Fees
3. Surcharge for Asylum, Refugee and Fee Waiver/Exemption Costs
4. OMB Circular A-25
5. Homeland Security Act
G. Methods Used To Determine Fee Amounts
1. USCIS Costs
2. Alternative Budget Modeling
3. ``Make Determination'' Activity
4. Activity-Based Costing
5. Calculating Specific Processing Requirements
6. Overhead Charges
7. Recovering Deficit From Current Operations
8. Charging a Flat Fee
9. Financial Audits
10. Acceptance of Electronic Payment options
11. Other USCIS Fees
IV. Statutory and Regulatory Reviews
A. Regulatory Flexibility Act
B. Unfunded Mandates Reform Act of 1995
C. Small Business Regulatory Enforcement Fairness Act of 1996
D. Executive Order 12866
E. Executive Order 13132
F. Executive Order 12988
G. Paperwork Reduction Act
List of Acronyms and Abbreviations
ABC--Activity-Based Costing
BSS--Biometrics Storage System
CBP--United States Customs and Border Protection
DHS--Department of Homeland Security
EAD--Employment Authorization Document
FBI--Federal Bureau of Investigation
FDNS--Fraud Detection and National Security
FY--Fiscal Year
GAO--Government Accountability Office
GDP--Gross Domestic Product
HSA--Homeland Security Act
ICE--United States Immigration and Customs Enforcement
IEFA--Immigration Examinations Fee Account
INA--Immigration and Nationality Act
INS--Immigration and Naturalization Service
IOAA--Independent Offices Appropriation Act
LPR--Lawful Permanent Resident
OIG--Office of Inspector General
OMB--Office of Management & Budget
OPT--Optional Practical Training
PPBS--Planning Programming Budgeting System
SSA--Social Security Administration
TPS--Temporary Protected Status
USCIS--United States Citizenship and Immigration Services
VAWA--Violence Against Women Act
ZBB--Zero Based Budget
I. Background
On February 1, 2007, U.S. Citizenship and Immigration Services
(USCIS) published a notice of proposed rulemaking proposing to adjust
USCIS' immigration and naturalization benefit fee schedule. 72 FR 4888.
USCIS' current fee schedule does not establish a level of funding
sufficient to fully fund USCIS operations, allow for future
requirements, ensure adequate staffing, or provide USCIS with funding
sufficient for technological capabilities to continue or improve timely
and efficient processing of immigration benefits. The fees that fund
the IEFA were last updated on October 26, 2005, but merely to adjust
the existing fee schedule to reflect inflation. See 70 FR 56182 (Sept.
26, 2005). The last comprehensive fee review was conducted in fiscal
year 1998 by the Immigration and Naturalization Service (INS). See 63
FR 1775 (Jan. 12, 1998) (proposed rule); 63 FR 43604 (Aug. 14, 1998)
(final rule fee adjustment).
In 2004, the Government Accountability Office (GAO) reported that
the fees collected by USCIS were insufficient to fund USCIS operations.
GAO, Immigration Application Fees: Current Fees are Not Sufficient to
Fund U.S. Citizenship and Immigration Services' Operations (GAO-04-
309R, Jan. 5, 2004). GAO recommended that USCIS ``perform a
comprehensive fee study to determine the costs to process new
immigration applications.'' Id. at 3. In response to GAO's
recommendations, USCIS undertook a comprehensive fee review to revise
its application and petition fees to ensure full recovery of its
operational costs.
As discussed in the proposed rule, the Immigration and Nationality
Act of 1952 (INA), as amended, provides for the collection of fees at a
level that will ensure recovery of the full costs of providing
adjudication and naturalization services, including the costs of
providing similar services without charge to asylum applicants and
certain other immigrants. INA section 286(m), 8 U.S.C. 1356(m). The INA
also states that the fees may recover administrative costs as well. Id.
The fee revenue collected under INA section 286(m) remains available to
provide immigration and naturalization benefits and the collection of,
safeguarding of, and accounting for fees. INA section 286(n), 8 U.S.C.
1356(n).
USCIS must also conform to the requirements of the Chief Financial
Officers Act of 1990 (CFO Act), 31 U.S.C. 901-03. The CFO Act requires
each agency's Chief Financial Officer (CFO) to ``review, on a biennial
basis, the fees, royalties, rents, and other charges imposed by the
agency for services and things of value it provides, and make
recommendations on revising those charges to reflect costs incurred by
it in providing those services and things of value.'' Id. at 902(a)(8).
This final rule reflects recommendations made by the DHS CFO and USCIS
CFO as required under the CFO Act.
Office of Management and Budget (OMB) Circular A-25 establishes
Federal policy regarding fees assessed for Government services and the
basis upon which federal agencies set user charges sufficient to
recover the full cost to the Federal Government. OMB Circular A-25,
User Charges (Revised), section 6, 58 FR 38142 (July 15, 1993) (OMB
Circular A-25). Under OMB Circular A-25, the objective of the United
States Government is to ensure that it recovers the full costs of
providing specific services to users. Full
[[Page 29853]]
costs include, but are not limited to, an appropriate share of--
(a) Direct and indirect personnel costs, including salaries and
fringe benefits such as medical insurance and retirement;
(b) Physical overhead, consulting, and other indirect costs,
including material and supply costs, utilities, insurance, travel and
rents or imputed rents on land, buildings, and equipment; and,
(c) Management and supervisory costs.
Full costs are determined based upon the best available records of
the agency. Id; see also OMB Circular A-11, section 31.12 (June 30,
2006) (Fiscal Year (FY) 2008 budget formulation and execution policy
regarding user fees), found at http://www.whitehouse.gov/omb/circulars/a11/current_year/a11_toc.html.
When developing fees for services,
USCIS also looks to the Federal Accounting Standards Advisory Board
(FASAB) which defines ``full cost'' to include ``direct and indirect
costs that contribute to the output, regardless of funding sources.''
Federal Accounting Standards Advisory Board, Statement of Financial
Accounting Standards No. 4: Managerial Cost Accounting Concepts and
Standards for the Federal Government 36 (July 31, 1995). To obtain full
cost, FASAB identifies various classifications of costs to be included,
and recommends various methods of cost assignment. Id. at 33-42.
USCIS entered supporting fee review documentation for this
rulemaking and its methodology, including budget methodology analyses
and regulatory flexibility analyses, into the public docket. See http://www.regulations.gov
, docket number USCIS-2006-0044. A more detailed
discussion of USCIS' fee review can be found in the proposed rule for
this rulemaking action at 72 FR 4888.
II. Final Rule
This fee rule sets out fees to recover the full costs of USCIS
operations. Without these fee adjustments, USCIS will not be able to
maintain critical business functions, properly address fraud and
national security issues, or process incoming applications and
petitions in a timely manner. The revised fee schedule will close
existing funding gaps and allow USCIS to take specific and demonstrable
steps to strengthen the security and integrity of the immigration
system, improve customer service, and modernize business operations.
The fee revenue generated by the revised fee schedule will support
increased security and fundamentally transform and automate USCIS
business operations, all of which will greatly strengthen the ability
of USCIS to perform its mission and place USCIS in a better position to
support possible future legislative reforms. This fee rule assumes that
no new appropriation will be enacted.
This final rule largely implements the fee structure described in
the proposed rule, but makes some adjustments to the fee schedule based
on public comments received. This rule also expands the proposed fee
waiver policy to include additional classes of applicants and
petitioners who may apply for a waiver of certain application and
petition fees for certain services. The rationale for each change is
discussed in the section of the rule that discusses comments on that
issue. The specific changes made are summarized as follows.
A. Application To Register Permanent Residence or Adjust Status
In the proposed rule, the proposed fee of $905 for an Application
to Register Permanent Residence or Adjust Status, Form I-485, was based
on USCIS' projected overall cost of processing the average application,
regardless of the applicant's age. Under the final rule, the standard
fee for filing a Form I-485 by an individual will be $930; the fee for
a child under the age of fourteen years will be $600 when submitted
concurrently for adjudication with the application of a parent under
sections 201(b)(A)(i), 203(a)(2)(A), or 203(d) of the INA. The comments
received on this issue and the rationale for making this change are
discussed in section III.D.2 below.
B. Intercountry Adoptions
In the proposed rule, the proposed fee of $670 for filing an
Application for Advance Processing of Orphan Petition, Form I-600A, was
based on USCIS' projected overall cost of processing the average
application. This final rule does not change that proposed fee,
retaining it at $670. However, the final rule provides that the first
request for extension of the approval of an Application for Advance
Processing of Orphan Petition will be accepted without a fee if the
request is filed in advance of the expiration of the Notice of
Favorable Determination Concerning Application for Advance Processing
of Orphan Petition, Form I-171H, and no Petition to Classify Orphan as
Immediate Relative, Form I-600, has been filed with USCIS for
adjudication. This no charge extension is limited to only one occasion.
A complete application and fee must be submitted for any subsequent
application.
This final rule also provides that no biometric fee will be charged
for an update of an approved Application for Advance Processing of
Orphan Petition. Section III.D.4. below discusses the comments received
in this area and the reasons for making this change.
C. Fee Waivers and Exemptions
The final rule alters the proposed rule regarding fee waivers in
three important ways:
It permits an application for a fee waiver for the
Application for Adjustment of Status from asylees, victims of human
trafficking (T visas), victims of violent crime (U visas), and Violence
Against Women Act (VAWA) self petitioners, and Special Immigrant--
Juveniles.
It provides that a ``Special Immigrant--Juvenile'' will
not be charged a fee for submitting the Petition for Amerasian,
Widow(er), or Special Immigrant, Form I-360.
It permits an application for fee waiver of the biometric
fee.
These three changes represent a significant expansion of the fee
waiver policy from what was proposed and will ensure that many
applicants or petitioners, who may have faced financial hardship as a
result of these fees, may now have that hardship alleviated. Section
III.E. below discusses these changes and the comments received in this
area more fully.
D. Miscellaneous Changes and Corrections
The final rule makes a few clarifying changes to the regulatory
text in the proposed rule. First, as a result of a comment, USCIS found
that the fee schedule contained a form that was no longer being used.
As a result, references to the entry for Application for Change of
Nonimmigrant Classification, Form I-506, are removed by this rule.
Second, the explanation of the fee for a Motion, Form I-290B, was found
to be outdated in that the section had not been updated to comport with
changes that had been made to 8 CFR part 242 and 8 CFR 1003.8. This
rule also clarifies that fee to reflect current procedures and policies
and the applicability of the Motion fee. Finally, the maximum fee
proposed for Application to Adjust Status from Temporary to Permanent
Resident (Under Section 245A of Public Law 99-603),\1\ Form I-698, and
Application for Status as a Temporary Resident under Section 245A of
the Immigration and
[[Page 29854]]
Nationality Act, Form I-687, to be paid by a family with children under
eighteen years of age living at home was removed from the final rule.
The statutory eligibility requirements for adjustment of status under
Public Law 99-603 preclude anyone who is currently under age eighteen
from eligibility. Accordingly, that provision was obsolete.
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\1\ Immigration Reform and Control Act of 1986, Public Law 99-
603, tit. II, sec. 201, 100 Stat. 3359, 3394 (Nov. 6, 1986).
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E. Summary of Final Fees
The USCIS Immigration and Naturalization Benefit Application and
Petition Fee Schedule, the proposed fees, and the final fees
established by this rule are summarized in the attached table.
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Current Proposed
Form No. Description fees fees Final fees
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I-90.................................. Application to Replace Permanent $190 $290 $290
Resident Card.
I-102................................. Application for Replacement/ 160 320 320
Initial Non-immigrant Arrival-
Departure Record (I-94).
I-129................................. Petitions for a Nonimmigrant 190 320 320
Worker.
I-129F................................ Petition for Alien 170 455 455
Fianc[eacute](e).
I-130................................. Petition for Alien Relative...... 190 355 355
I-131................................. Application for Travel Document.. 170 305 305
I-140................................. Immigrant Petition for Alien 195 475 475
Worker.
I-191................................. Application for Advance 265 545 545
Permission to Return to
Unrelinquished Domicile.
I-192................................. Application for Advance 265 545 545
Permission to Enter As a
Nonimmigrant.
I-193................................. Application for Waiver of 265 545 545
Passport and/or Visa.
I-212................................. Application for Permission to 265 545 545
Reapply for Admission into the
United States After Deportation
or Removal.
I-360................................. Petition for Amerasian, 190 375 375
Widow(er), or Special Immigrant.
I-485................................. Application to Register Permanent 325 905 930
Residence or Adjust Status.
I-526................................. Immigrant Petition by Alien 480 1,435 1,435
Entrepreneur.
I-539................................. Application to Extend/Change 200 300 300
Nonimmigrant Status.
I-600/I-600A.......................... Petition to Classify Orphan as an 545 670 670
Immediate Relative/Application
for Advance Processing or Orphan
Petition.
I-601................................. Application for Waiver of Grounds 265 545 545
of Inadmissibility.
I-612................................. Application for Waiver of the 265 545 545
Foreign Residence Requirement.
I-687................................. For Filing Application for Status 255 710 710
as a Temporary Resident.
I-690................................. Application for Waiver of 95 185 185
Excludability.
I-694................................. Notice of Appeal of Decision..... 110 545 545
I-695................................. Application for Replacement 65 130 130
Employment Authorization or
Temporary Residence Card.
I-698................................. Application to Adjust Status from 180 1,370 1,370
Temporary to Permanent Resident.
I-751................................. Petition to Remove Conditions on 205 465 465
Residence.
I-765................................. Application for Employment 180 340 340
Authorization.
I-817................................. Application for Family Unity 200 440 440
Benefits.
I-824................................. Application for Action on an 200 340 340
Approved Application or Petition.
I-829................................. Petition by Entrepreneur to 475 2,850 2,850
Remove Conditions on Residence.
I-881................................. NACARA--Suspension of Deportation 285 285 285
or Application for Special Rule
Cancellation of Removal.
I-914................................. Application for T Nonimmigrant 270 0 0
Status.
N-300................................. Application to File Declaration 120 235 235
of Intention.
N-336................................. Request for Hearing on a Decision 265 605 605
in Naturalization Procedures.
N-400................................. Application for Naturalization... 330 595 595
N-470................................. Application to Preserve Residence 155 305 305
for Naturalization Purposes.
N-565................................. Application for Replacement of 220 380 380
Naturalization Citizenship
Document.
N-600................................. Application for Certification of 255 460 460
Citizenship.
N-600K................................ Application for Citizenship and 255 460 460
Issuance of Certificate under
Section 322.
Biometric Services............... 70 80 80
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III. Public Comments on the Proposed Rule
USCIS provided a 60-day comment period in the proposed rule and
received more than 3,900 comments.\2\ USCIS received comments from a
broad spectrum of individuals and organizations, including refugee and
immigrant service and advocacy organizations, public policy and
advocacy groups, State and local governmental entities, educational and
other not for profit institutions, labor organizations, corporations,
and individuals. Many comments addressed multiple issues. USCIS
received hundreds of comments through many distinct form letters and
mass mailings that were identical or nearly identical in content. Many
comments provided variations on the same substantive issues.
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\2\ All comments may be reviewed at the Federal Docket
Management System (FDMS) at http://www.regualtions.gov, docket number
USCIS-2006-0044. The public may also review the docket upon request
by contacting USCIS through the contact information listed in this
rule. [0]
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The comments ranged from strongly supportive of the increased fees
to strongly critical. Many comments provided critiques of the
methodology and the proposed fee schedule; some suggested alternative
methods and funding sources.
USCIS also invited the public to access the commercial software
utilized in executing the budget methodology and developing the
proposed rule to facilitate public understanding of the fee modeling
process explained in the supporting documentation. 72 FR 4889. USCIS
received no requests for such access to the modeling program.
On February 14, 2007, the House Committee on the Judiciary,
Subcommittee on Immigration, Citizenship, Refugees, Border Security,
[[Page 29855]]
and Immigration Law heard testimony from the USCIS Director on the fee
proposal during the public comment period. USCIS has included an
unofficial transcript of that hearing in the docket. See, Proposal to
Adjust the Immigration Benefit Application and Petition Fee Schedule,
110th Congress, 1st Sess. (Feb. 14, 2007).
USCIS leadership met with stakeholders and conducted ``question and
answer'' sessions during the public comment period at various cities
throughout the United States, including: Washington, DC.; Los Angeles,
California; New York, New York; Chicago, Illinois; Detroit, Michigan;
Boston, Massachusetts; San Francisco, California; San Jose, California;
Dallas, Texas; Phoenix, Arizona; and Denver, Colorado. Participants
were encouraged to submit written comments on the rule.
USCIS considered the comments received, the congressional hearing
transcript, the content of the public meetings, and all other materials
contained in the docket in preparing this final rule. Throughout the
comment period, USCIS conducted a ``rolling'' review process. Comments
were reviewed as soon as practical after receipt and re-reviewed in
light of subsequent comments. The review process was very resource
intensive and it permitted USCIS to develop a continuous understanding
of the issues presented and maturation of consideration of the issues
most commonly presented.
A number of comments were not relevant to the substance of the
proposed rule and criticized the rule for not addressing other
immigration law issues. Many commenters suggested changes in the
substantive regulations implementing the immigration laws by USCIS,
United States Customs and Border Protection (CBP), United States
Immigration and Customs Enforcement (ICE), and other agencies. These
comments are beyond the scope of this rulemaking.
The final rule does not address comments seeking changes in United
States statutes, changes in regulations or applications and petitions
unrelated to or not addressed by the proposed rule, changes in
procedures of other components within the Department of Homeland
Security (DHS) or other agencies, or the resolution of any other issues
not within the scope of the rulemaking or the authority of DHS.
The public may also review any item in the docket upon request by
contacting USCIS through the contact information listed in this rule.
A. General Comments
Numerous comments supported the rule, although many of those were
qualified by expectations that the fee increase will result in better
service. Many of these comments emphasized that the costly delays in
case processing are far more expensive to applicants and petitioners
than the cost of the discrete filing fee. Others emphasized that filing
fees are often a small portion of the total cost incurred by an
individual or family immigrating to the United States.
In addition, many comments criticized the level of fees and the
amount of the fee increase. A significant number of comments criticized
the proposed fee schedule, suggested that the fee increase would impede
immigration, or argued that specific fees should not be increased at
all or not by the amount proposed. Many commenters disagreed with the
budget decision to fund USCIS entirely from fees and argued that USCIS
should seek an appropriation from Congress.
B. Relative Amount of Fees
A significant number of commenters argued that the proposed fees
were too low. Some expressed general concerns about immigration levels.
Others argued that fees should be high enough to cover all immigration
related costs, not simply application and petition processing and
related USCIS costs, so taxpayers are not asked to pay for someone
entering, residing, or seeking services in the United States.
1. Recovery of Additional Costs and Enhancements
Many comments suggested that even greater increases could be used
to further improve customer service, stating that this result would
reduce the perceived need for an individual to seek the assistance of
an attorney to understand and navigate the immigration benefits
application and petition process. Other comments suggested that fees
should not be based on USCIS' costs of administration, but on the value
of the benefit received by the applicant (e.g., United States
citizenship). Additionally, some comments pointed out that many aliens
make large payments to those who help them enter the United States
illegally, suggesting that this demonstrated the willingness to pay
more to enter and remain in this country legally or illegally.
Some comments supporting the proposed fees, or even higher
increases, asserted that the fee increases are not significant when
viewed in a broader context. Some cited the value of naturalization
relative to the cost. Others noted that most people must be permanent
residents for five years before they can apply for United States
citizenship and the proposed fee requires saving less than $10 per
month toward that goal. Other examples were also cited, including the
fact that the fee for a petition for a relative, fianc[eacute], or
orphan is a very small part of the total cost of bringing that person
to the United States.
The filing fees proposed and established under this rule are
significantly higher than applicants and petitioners pay today. These
fees, however, are based only on the costs associated with adjudicating
applications.
Several comments suggested that the fee increases were overdue and
should have been implemented long ago. These commenters agreed with the
proposed rule that the fee increases were necessary to increase the
effectiveness of USCIS services. They recommended quick implementation
of this rule so USCIS could begin making the planned improvements to
its operations as soon as possible. As stated in the proposed rule, the
current fee schedule does not generate enough revenue for USCIS to even
process the current volumes of applications and petitions in a timely
manner. As the Director of USCIS stated in his testimony before
Congress on February 14, 2007, USCIS intends to implement this fee
increase in the summer of 2007 so that it can begin its efforts to
reduce average application processing times. This plan was also stated
in the USCIS press release of January 31, 2007. USCIS plans to begin
collecting these new fees in order to begin fully recovering its costs
and obtaining the resources necessary to timely process applications.
Thus, the commenters' suggestions are being recognized, but they are in
line with original plans of USCIS.
Specific comments suggested that the application fee for a Petition
for a Nonimmigrant Worker, Form I-129 (Nonimmigrant Worker Petition),
which is filed by businesses seeking to allow aliens to work in the
United States, should be increased. According to these comments, higher
fees should offset or alleviate the stress that these workers placed on
the infrastructure of the United States, increased demand for
governmental services, impact on the American labor market, reduced
opportunities for citizens, and lowered salaries for American workers.
Similarly, some comments suggested that a portion of fees should
reimburse States for providing job training programs.
[[Page 29856]]
Although a number of comments suggested that USCIS increase fees
further it is important to note that the purpose of filing fees is to
only recover the costs associated with providing a benefit or service.
Filing fees are not designed to function like tariffs and generate
general revenue to support broader policy decisions, or like fines to
deter certain behaviors. The filing fees are not intended to influence
public policy in favor of or in opposition to immigration, limit
immigration, support broader infrastructure, or impact costs beyond
USCIS.
Other comments suggested that increasing specific fees, such as for
an Application to Extend/Change Nonimmigrant Status, Form I-539, would
serve as a deterrent to reinstatement applications and, instead, cause
more aliens to remain in the United States longer than their period of
authorized stay.
USCIS considered these suggestions and others and in some cases,
discussed further in this rule, made changes in response to public
comments. These changes though continue to follow the President's FY
2007 Budget which called for USCIS to reform its fee structure, and the
GAO recommendation that USCIS ``perform a comprehensive fee review to
determine the costs to process new immigration applications.'' This
rule is designed to establish fees sufficient to reimburse the full,
necessary, ongoing, and projected costs of processing immigration
benefit applications and petitions and the related operating costs of
USCIS.
While USCIS has authority to collect fees for certain broader costs
of administering the United States' immigration system, it has chosen
to structure the fees to only recover the full cost of operating USCIS.
USCIS believes that this decision is the most consistent with broader
Administration policy on user fees and the intent of Congress in the
enactment of, and amendments to, section 286(m) of the Immigration and
Nationality Act (INA), 8 U.S.C. 1356(m). Accordingly, USCIS has not
changed fees based on these comments.
2. Proposed Fees Are Unreasonably High
The largest number of comments opposed the proposed fee increases
in general terms or highlighted particular applications and petitions
and argued that the proposed fee increases would effectively exclude
aliens generally, or groups of aliens, from immigration benefits and
services. Some suggested that fee increases send the wrong message to
people who are attempting to comply with the immigration benefit
process and United States immigration laws in good faith, and that
higher fees may discourage legal immigration while encouraging aliens
to attempt to enter the United States and work illegally. These
comments reflect another specific position on the larger issues of
immigration law and policy that aliens should be induced to immigrate
to the United States. As noted above in relation to the opposite
position, the purpose of the fee schedule is not to establish policy,
but to recover the costs necessary to operate USCIS. Accordingly, the
final rule does not adjust the fee schedule in response to these
comments.
A portion of these comments argued that the fee increases would
result in a decrease in applications and petitions. Contrary to the
opinions expressed, USCIS records do not reflect any empirical evidence
suggesting a long-term reduction in the demand for immigration benefits
resulting from fee increases. While fees at an extremely high level
could be a factor in whether or not someone files an application with
USCIS, neither past fee increases nor the incremental increases in this
rule begin to approach the level necessary to have any significant
impact on the demand for USCIS benefits. USCIS acknowledges that short-
term increases in applications and petitions occur after a fee increase
has been announced, followed by short-term decreases in demand
immediately after the fee increases become effective. This fluctuation
is a normal result of an increase in the cost of any service, whether
governmental or private. Generally, applicants and petitioners with the
ability to file do so before fees increase. Individuals logically
choose to pay a lower price for a service if and when available.
However, USCIS records indicate that demand returns to normal shortly
after the effective date of a fee increase. When the Immigration and
Naturalization Service (INS) conducted the last comprehensive fee
review in FY 1998 and fees increased, on an average percentage basis,
more than they increase in this rule, the demand for immigration
benefits remained fairly constant shortly thereafter. In any case,
USCIS fees are generally believed to be only a portion of the total
expenses incurred by a typical applicant.
These comments infer that these temporary fluctuations undercut the
stability of the funding stream to be generated by the proposed fees.
USCIS acknowledges that slight fluctuations will occur and will be
reflected in the funding stream, but these fluctuations are not
significant enough, in the context of the overall USCIS budget, to
adversely affect services.
3. Improve Service, Reduce Inefficiencies
a. Service improvement and fees.
Many comments noted lengthy waiting times to process immigration
benefit applications and petitions and highlighted the need to improve
overall customer service. These comments suggested that, regardless of
whether the proposed fees were justified, applicants and petitioners
should not be asked to pay the full fee increase until USCIS improves
service. Others suggested that even if fees were increased before
service level improvements were made, there should be detailed
commitments to service level improvements to ensure that increased
revenues are used to improve service.
Some comments stated that USCIS has increased fees before with the
promise of enhanced services, but never fully delivered on that
promise. Other comments indicated that the proposed rule does not
outline an overall strategic plan for improvements, with measurable
benchmarks and tangible goals for implementing the needed upgrades, or
a specific timeline or completion schedule to assure interested parties
that these improvements will actually be accomplished. One commenter
complained that customer service and processing backlogs have not
improved enough to justify such a steep fee increase.
These comments illustrate the main distinction between the revised
fee schedule and current one in that the current fee schedule does not
reflect the existing costs of performance. The current fee schedule
does no more than sustain USCIS operations and provide for delivery of
benefits at an unacceptable level. Historically, USCIS balanced
resource requirements to allocate insufficient revenues from a fee
structure that did not recover full costs. The new fee structure is
designed to maintain sufficient capacity to meet appropriate
performance standards and goals, while sustaining performance through
investments to deliver continuous improvements into the foreseeable
future. USCIS acknowledges the commenters' concerns, and believes that
these concerns will be satisfied, at least in part, after
implementation of the new fee structure.
USCIS is required by law to review its fees at least once every two
years. 31 U.S.C. 902(a)(8). USCIS has established a dedicated staff in
its Office of Planning, Budget, and Finance to conduct future
comprehensive analyses. USCIS is firmly committed to seeking
[[Page 29857]]
improved ways of doing business and reengineering processes in order to
contain costs. The new fee structure will enable USCIS to make
improvements that may ultimately help avoid future increases and
possibly reduce costs. Process improvements implemented over the past
several years, as well as projected productivity increases, are taken
into account in the current fee review, keeping fees lower than they
might otherwise have been. Future productivity enhancements will
produce lower costs per unit that will be reflected in future price
adjustments.
The fees are based on the costs necessary to sustain the processing
of applications and petitions. If fees collected remain below
processing costs, the imbalance will, as it has in the past, result in
a backlog. Backlogs mean customers will not receive the benefits and
services for which they have applied in a timely manner. A structural
deficit between costs and fees will also mean USCIS cannot effectively
sustain operations because of insufficient capital to invest in
improvements. Over time, a structural deficit between costs and fees
will create and accelerate the growth of backlogs and deteriorate
service levels. Delays caused by the inability to meet demand resulting
from fees set below cost often have far more impact on the person than
the discrete application or petition fee.
The proposed fee adjustments and this final rule reflect these
concerns. Over the past several years, USCIS received appropriated
funds to reduce processing times and meet the President's goal of a
six-month or less processing time for nearly all immigration benefit
applications and petitions. By the end of FY 2006, the application and
petition backlog had fallen from a high of 3.8 million cases in January
2004 to less than 10,000 considered under USCIS control. The total
volume of pending cases is currently less than the backlog was at its
height, which shows real and substantial progress.
USCIS has also made many customer service improvements, including,
but not limited to, expanding online capabilities (such as online
filing, change of address and case status updates), INFOPASS
appointments (providing the ability to go online to make, cancel, or
reschedule appointments with a USCIS Immigration Information Officer),
and introducing a broad range of fact sheets to help the public
understand various benefits, eligibility criteria, and USCIS
procedures. These improvements were made prior to the proposed fee
increase. With the revenue generated from the new fee schedule, USCIS
will be able to deliver significant additional improvements. Until
USCIS aligns its fees with costs, however, it will be unable to afford
sufficient capacity to process incoming applications and petitions,
resulting in backlogs.
b. Inefficiency in business-related visas.
Some comments highlighted particular inefficiencies and suggested
that correcting these would mitigate the need for fee increases. An
example of inefficiency mentioned by many commenters was the long
processing delays for employment-based visa categories, including the
immigrant employment-based classifications and the nonimmigrant
classifications such as the temporary employee H nonimmigrant visa, and
the intra-company transferees L nonimmigrant visa.
USCIS acknowledges that it does not always quickly and efficiently
process the Immigrant Petition for Alien Worker, Form I-140 (Alien
Employee Petition) for firms requesting USCIS approval to hire a
foreign worker. Processing delays result from a number of factors that
are beyond the control of USCIS, including extensive Federal Bureau of
Investigation (FBI) name checks and retrogression of petition priority
dates caused by over-subscription of the applicable visa categories.
The solutions suggested by one commenter, however, such as mandatory
processing times, automatic fee refunds, or automatic approval, would
neither improve efficiency nor result in shorter processing time. The
suggestion that delays result in refunds would merely cause more
delays. Employers may use the premium processing service, if
applicable, to obtain faster processing of certain employment-based
petitions and applications, a process that may alleviate the
commenters' concerns.
The national interest is not served and immigration laws are not
complied with by automatically approving immigration benefits for
persons solely as a result of the passage of time. Each applicant or
petitioner must prove his or her eligibility for the benefit sought.
While a backlog still exists, USCIS has achieved an average processing
time for an Alien Employee Petition as of January 2007 of less than 135
days per case, which represents fifteen days faster than five years
ago, but with a much higher current monthly volume. With the additional
USCIS resources from this updated fee schedule, performance will be
enhanced even further.
c. Multiple biometric data requests.
Many commenters pointed to the fact that applicants or petitioners
must provide biometric data more than once. Some commenters considered
the expiration of fingerprints submissions to be inefficient. Others
suggested that it was inefficient for USCIS to again request
fingerprints when they apply for sequential benefit applications. USCIS
agrees that an applicant should not be required to provide biometric
data multiple times for a single application. USCIS is developing the
Biometrics Storage System (BSS) which will allow the re-use of
fingerprints and, if an application or petition has not been
adjudicated within the fifteen month validity period, USCIS will be
able to simply re-submit the stored fingerprints to the FBI, without
any involvement of the applicant or petitioner. See 72 FR 17172 (Apr.
6, 2007) (establishing a new system of records). Also, as a matter of
policy, when an application remains pending, USCIS does not charge the
applicant the biometric fee again because of a processing delay at
USCIS.
In the revised fee structure, the biometric fee is not simply a fee
for biometric collection or the USCIS cost of the applicant or
petitioner appearing at an Application Support Center. The biometric
fee also covers costs associated with the use of the collected
biometrics for FBI and other background checks. Thus, an applicant will
pay the biometric fee whenever he or she files another application that
requires the collection, updating, or use of biometrics for background
checks. At that point, USCIS can verify the identity of the applicant
by comparing the newly collected biometrics with those previously
submitted, providing an important security enhancement. USCIS believes
that this new process may result in some decreases in costs which may
offset the costs of background checks incorporated into the biometric
fee, and has already factored this impact into the fee structure along
with projected efficiency increases.
d. Petitions for aliens of extraordinary ability or performers.
USCIS received many comments requesting improved efficiency in the
processing of visa petitions for aliens of extraordinary ability in
science, art, education, business, or athletics, and their spouses and/
or children (the O visa category), or aliens coming to the United
States temporarily to perform at a specific athletic competition or as
a member of a foreign-based entertainment group (the P visa category).
Many O and P petitions are submitted on relatively short schedules,
i.e. the individual/group is scheduled to
[[Page 29858]]
visit the United States in the near future for a specific event.
These commenters stated that lengthy and uncertain O and P visa
processing periods complicated booking foreign artists for performances
and requested the implementation of a thirty-day maximum processing
period. This issue is not germane to this rule; however, because of the
volume of comments received, a brief response is provided.
The USCIS receipt notice received by an O and P petitioner after
filing states that the petition will be processed in 30-120 days, but
that time is a standardized estimate for all O and P petitions for many
types of performers and organizations. Still, USCIS does everything in
its control to adjudicate these petitions within 60 days. In spite of
this fact, cases may be delayed by a number of causes that are beyond
USCIS control, most commonly a lack of response to USCIS inquiries by
the sponsoring organization, labor unions and other representatives,
and the prospective visa recipient. For planning purposes, current
estimates of various visa classification processing times and
processing dates are posted on the USCIS website.
USCIS recently published a final rule to permit petitioners to file
O and P nonimmigrant petitions up to one year prior to the need for the
alien's services. 72 FR 18856 (April 17, 2007). Although that rule will
not resolve all of the commenters' concerns, the longer filing window
will better assure O and P petitioners that they will receive a
decision on their petitions in a timeframe that will allow them to
secure the services of the O or P nonimmigrant when such services are
needed. USCIS suggests, however, that the nature of the O and P visa
classifications creates a need to carefully plan performances and book
foreign entertainment acts. Fees collected after publication of this
rule will be used to cover USCIS costs and will assist in more reliable
and consistent adjudication of all applications and petitions,
including O and P visa petitions.
e. Pre-screening applications and petitions for lawful permanent
residence.
One commenter supported the recommendation of the USCIS Ombudsman
to require a comprehensive prescreening of Applications to Register
Permanent Residence or Adjust Status, Form I-485, prior to filing.
Citizenship and Immigration Services Ombudsman, Annual Report to
Congress, 50-55 (June 29, 2006) (Recommendation 27). Recognizing that
adoption of a prescreening process would reduce revenues, the commenter
posited that it would instead promote efficiency and integrity, and
enhance security.
USCIS is committed to a process that handles cases efficiently and
effectively, meeting all quality requirements in a way that protects
the national security and public safety of the United States. USCIS
cannot, however, agree with this recommendation at this time. The
suggestion for ``up-front processing'' is very similar to a process
that came to be known as ``front-desking''--a procedure followed by the
INS in which employees were instructed to review certain applications
in the presence of the applicant to correct facial deficiencies,
incomplete responses or errors before accepting the application for
filing, and not to accept those applications thought to be statutorily
deficient. Front-desking effectively precluded administrative and
judicial review of rejected applications because there was no formal
denial to appeal--only a return of an uncorrectable document. Reno v.
Catholic Social Services, 509 U.S. 43, 61-63 (1993). Legitimation of
the concept of up-front processing would require a fundamental change
in the regulations administered by USCIS and goes well beyond the scope
of this rulemaking. USCIS will not adopt this proposal as a part of
this rulemaking.
f. Transformation project and premium processing.
Some comments requested more information on transformation plans
and how premium processing revenues will be spent. Others suggested
that premium processing be expanded. Another commenter suggested that
transformation from a paper to electronic process would create
excessive costs and burdens that would create financial and paperwork
barriers to citizenship.
As required by statute, premium processing revenues are deposited
in the IEFA and will be fully isolated from other revenues and devoted
to the extra services provided to premium processing customers, and to
broader investments in a new technology and business process platform
to radically improve USCIS capabilities and service levels. INA Section
286(u), 8 U.S.C. 1356(u). USCIS has recognized that its existing
technology has not kept pace with changing demands and additional
requirements placed upon USCIS. Since the previous fee structure was
retrospective and did not include funds for real investments to sustain
and improve USCIS infrastructure, business choices have been limited to
those that can be supported by existing technology or no technology.
The premium processing fee ($1,000) is statutorily authorized for
employment based applications and petitions. USCIS cannot expand the
premium processing fee or the applications and petitions available for
premium processing beyond the statutory limitations.
USCIS plans to transform the current paper based process into an
electronic adjudicative process. This transformation will allow USCIS
to better detect and deter those who seek to do harm or violate the
laws of the United States, while facilitating benefits processing for
eligible, low-risk persons.
USCIS acknowledges that the transition from a paper-based to an
electronic adjudication system carries with it certain burdens, but
believes the benefits of the new process will significantly outweigh
those costs. The new adjudicative process will enable USCIS to enhance
national security, improve customer service, and increase efficiency by
increasing its ability to share data with immigration partners,
improving security by uniquely identifying individuals, improving
system integrity by creating customer accounts, and providing a single
worldwide case management system. Nonetheless, as some commenters
pointed out, not all applicants will have access to the Internet or
other electronic means of submission. For those individuals, paper
submissions will remain an option.
g. Actions planned to improve efficiency.
USCIS believes that, while sustainability of its operations focused
on continuous improvement is important, so is real and substantive
near-term improvement. USCIS structured the revised fee schedule to
allow it to commit to specific substantial improvements over the next
two years.
USCIS is committed to substantial reductions in processing times by
the end of FY 2008 for four key applications: (1) Application to Renew
or Replace a Permanent Resident Card, Form I-90 (Application for LPR
Card); (2) Application to Register Permanent Residence or Adjust
Status, Form I-485 (Adjustment of Status Application); (3) Immigrant
Petition for Alien Worker, Form I-140 (Alien Employee Petition), the
petition for an employer to sponsor a foreign worker for permanent
residence based on its job offer; and (4) Application for
Naturalization, Form N-400 (Naturalization Application), the petition
to become a United States Citizen through naturalization. These four
applications and petitions represent almost one-third of the USCIS
total workload. By the end of FY 2008,
[[Page 29859]]
USCIS plans to reduce processing times for each of these cases by two
months, from six months to four months (naturalization processing will
be reduced from seven months to five months when the ceremony at which
a person takes the oath of allegiance is included as part of the
process). Thus, applicants and petitioners will see a significant
improvement in the first full fiscal year following these fee
adjustments. Further, as also indicated in the proposed rule, USCIS is
committed to a twenty-percent average reduction in case processing
times by the end of FY 2009, which will extend improvements in
processing times and service delivery across the spectrum of
applications and petitions.
The proposed fee structure commits USCIS to real improvements as it
is not built simply on today's productivity rates, but on anticipated
increases in productivity (four percent for the Adjustment of Status
Application, and two percent for all other products). USCIS is
accountable for these productivity increases in order for fees to
support operations as intended.
Another commenter suggested that hiring more permanent employees
would improve USCIS efficiency. USCIS agrees with the commenter that
sufficient staffing is directly related to the ability to collect
sufficient fees for service as explained in the proposed rule and this
final rule. As presented in the President's FY 2008 Budget, USCIS plans
to add 1,004 Adjudication Officers and support staff. However, twenty
percent of the new staff will be other than permanent employees. Most
of that staff will handle application and petition volume surges, a
critical resource to ensure that the backlog does not increase due to
sudden and unpredictable workload increases. However, the comment
suggests no regulatory changes. Thus, no changes are made to the final
rule.
One commenter questioned how quickly USCIS will be able to
implement all of the resources outlined in the additional resource
requirements. The commenter also questioned whether USCIS took into
consideration ongoing expenses versus one-time expenses. USCIS has
factored into the fee schedule the appropriate start up costs. USCIS
did differentiate one-time costs versus recurring costs in its fee
calculations. For example, one-time costs such as background
investigations and computer equipment for new hires were included in
the FY 2008 costs, but not in the FY 2009 costs. These calculations are
accurately identified in the fee review supporting documentation.
4. Increases Relative to Time
Some comments suggested that some fees were excessive for certain
applications and petitions relative to the time it takes to process the
application or petition. As mentioned above and in the proposed rule,
the primary basis of the USCIS fee model is the administrative
complexity, which is the amount of time that it takes to process a
particular kind of application or petition (identified as ``Make
Determination'' activity in the proposed rule). The calculation also
factors in other direct costs, such as the cost of manufacturing and
delivering a document when that is part of the processing of a
particular benefit.
In addition to these costs, the fee calculation model factors in
the full costs of USCIS operations, including services provided to
other applicants and petitioners at no charge, overhead costs (e.g.,
office rent, equipment, and supplies) associated with the adjudication
of the application or petition, and other processing costs. These
latter costs include responding to inquiries from the public (``Inform
the Public'' activity), application and petition data capture and fee
receipting (``Intake'' activity), conducting background checks
(``Conduct Interagency Border Inspection System Checks'' activity), the
acquisition and creation of files (``Review Records'' activity),
preventing and detecting fraud (``Fraud Prevention and Detection''
activity), and, when applicable, producing and distributing secure
cards (``Issue Document'' activity) and electronically capturing
applicants' fingerprints, photographs, and signatures (``Capture
Biometrics'' activity). In total, all application and petition fees
include a total of $72 in ``surcharges'' to recover asylum and refugee
costs, and fee waiver and exemption costs.
5. Increases Relative to Other Standards
Many commenters suggested that the fee average or weighted average
fee increases were out of line with, for example, the Social Security
Administration's (SSA) 2007 basic cost of living increase, the increase
in the Gross Domestic Product (GDP), or the federal General Schedule
salary increase. USCIS appreciates the concerns expressed, but these
external indicators of costs are not comparable with USCIS' costs. For
example, SSA's basic cost of living increase is a benefit increase tied
to inflation, whereas the USCIS fees recover all of the costs of
operating USCIS, including enhancements required to meet congressional
mandates, improve efficiency, detect fraud, secure the immigration
system, and to consolidate elements such as federal salary increases
into base costs. The real GDP or ``real gross domestic product,'' on
the other hand, is an estimate of the output of goods and services
produced by labor and property located in the United States by the
United States Department of Commerce Bureau of Economic Analysis. GDP
bears no relation to the cost models that must generate the fees to be
charged by USCIS.
Many commenters stated that the increase in the fee for the
Application for Replacement Naturalization/Citizenship Document, Form
N-565, from $220 to $380, was unreasonable when compared with
replacement of other documentation. Most of these commenters compared
the fee for replacing a citizenship certificate with replacing a Social
Security card, which the Social Security Administration provides for
free, or replacing state documents (e.g. driver's licenses) that many
states provide for a nominal charge.
Replacement of a social security card, driver's license, voter
registration card, or passport is substantially different from
replacement of a certificate of citizenship. USCIS incurs substantial
costs in determining the validity of the naturalization for which the
certificate was issued before it can issue a new certificate. As stated
in the proposed rule and above, this fee schedule is based on the
relative complexity of adjudication of a benefit application and
reflects the average relative cost of adjudication of all such
applications. The fees charged for replacing secure documents reflect
the full costs incurred by USCIS in replacing those documents.
Regardless of the type of change requested, USCIS must obtain the
original records and issue a new certificate after the appropriate
review and decisions. Charging $380 for adjudication of Form N-565 for
an infant may recover more fees than that specific adjudication may
require, however, $380 fails to recover the resources expended to
determine the validity of the more complicated applications such as in
the case of an adult who requires significant background investigation.
Therefore, the Form N-565 fee was not adjusted from what was proposed.
Other comments stated that some fees should reflect validity
periods with lower fees for benefits with shorter validity periods.
This argument is similar to that advanced by many who advocated higher
fees--that the fees should not be based just on costs, but
[[Page 29860]]
on the real or perceived value of the benefit. USCIS' methodology is
based on the complexity of the adjudication, not the validity period.
USCIS establishes maximum allowable time periods that may pass between
its approval of a benefit and the applicant's receipt of the benefit
based on the type of case and how passage of time influences the need
for updates in the information used to make the determination. The
approval validity period is not designed to generate revenue through
unnecessary repeat filings. USCIS believes that the current methodology
is fair and complies with Federal fee guidelines. Decreasing the fee
for applications for benefits with shorter validity would only shift
costs to other immigration benefit applications and petitions based on
considerations that are not applicable. The comment will not be
adopted.
6. Grandfathering
Some comments recommended phasing in the fee increase over a period
of years, or fixing fees at current levels for those who already
applied for one or more immigration benefits in the past, effectively
grandfathering fees for those who are already in the USCIS system.
Deferring fee increases would directly result in service delays. In
addition, setting fees lower for any class of applicants or petitioners
would merely transfer costs to other applicants. Thus, USCIS has not
incorporated these recommendations.
7. Budget Decisions Necessary To Administer Immigration Benefits
Many comments highlighted a critical aspect of the fee structure--
operations must be sustainable. The real cost of processing a type of
application or petition is more than the discrete cost of processing a
particular individual case today. It includes the cost of sustaining
operations and making investments to continually improve service
delivery and performance. The proposed fee structure is designed to
meet performance standards and make continuous improvements through
investments in training to ensure a high performance workforce,
facilities to provide services that are more accessible to our
customers, systems to support operations and performance, and resources
to improve quality and performance management. These goals are
consistent with the principles of Office of Management and Budget (OMB)
Circular A-25.
8. Reorganization
Another commenter suggested that efficiency could be improved by
reorganizing USCIS in accordance with the recommendations of the USCIS
Ombudsman. USCIS has recently reorganized its functions and expects
this reorganization to provide greater efficiency once it has gained
traction. See 71 FR 67623. Those expectations were incorporated into
the proposed rule and this final rule.
C. Alternative Sources of Funding
Many comments did not dispute the methodology and costs, but
asserted that applicants and petitioners simply should not be required
to bear the burden of these fee increases. Many pointed to the benefits
of immigration and assimilation and argued that because the United
States benefits as a whole from immigration, as a matter of public
policy immigrants should not bear the entire cost of processing. Many
asserted that USCIS should find ways to keep fees down, even if it
means operating at a deficit. Others suggested substituting
appropriated monies for user fees to offset particular fees or
activities or subsidize general USCIS operations.
1. Appropriated Funds
Many comments recommended that USCIS seek appropriated funds to
close funding gaps, meaning that taxpayers should subsidize particular
applications and petitions, certain processes, activities not directly
related to the adjudication of the particular kind of application or
petition, or fees in general. Some highlighted the public good and
positive impact resulting from immigration, naturalization, or certain
procedures (i.e., background checks) and argued that the public good
merited the use of tax dollars to offset costs. Many comments suggested
that appropriations be used to either subsidize specific benefit
application or petition fees or all fees in general. Some comments
suggested that fees should be the last recourse for funding immigration
services; that is, USCIS should be required to have exhausted all
possible means of seeking appropriated funds before imposing fee
increases. One commenter faulted USCIS for not engaging Congress to
cooperatively work on this issue. Others suggested funds be
appropriated for discrete purposes to offset the cost of a particular
activity associated with case processing or overall management of
USCIS.
Other comments point out that section 286(m) of the INA, 8 U.S.C.
1356(m), authorizes the recovery of the full cost of providing
immigration and naturalization services, including services provided
without charge to many applicants. These comments point out, however,
that section 286(m) does not mandate full cost recovery, and that USCIS
still has the option of seeking appropriations and choosing to recover
less than full cost through user fees. Some commenters urged support
for specific legislation that would alter the fee development process
or affect this specific fee review process.
Finally, one commenter suggested that USCIS use appropriated funds
to fund unusual or atypical expenses from its fee calculation. The
commenter suggested that these infrastructure costs represent an
``investment'' that should not be funded by current immigration and
naturalization applicants and must not be included in the fee
calculation.
These comments go beyond the scope of the regulation and raise
questions of whether Congress should alter the immigration laws of the
United States or appropriate general funds for USCIS. In effect, these
comments suggest that USCIS should take other actions outside the
rulemaking and the authorization for this rulemaking under INA section
286(m), 8 U.S.C. 1356(m).
Law and policy have long supported the proposition that the costs
of providing immigration benefits should be borne by those applying for
those benefits. Thus, in this final rule, USCIS is adopting a fee
schedule to recover its costs through user fees. While it is true that
Congress has enacted intermittent appropriations to subsidize the
operations of USCIS, the President's budget for FY 2008 does not
request such an appropriated subsidy, except specific funds for
expansion of an Employment Eligibility Verification program. Even if an
appropriation were to be requested, receipt of sufficient funds
(without adjusting the fee schedule) to cover the costs of USCIS
operations may be doubtful. USCIS must fund the services it provides
through the legal means at its disposal. Deferring the recovery of full
costs while USCIS explores other funding options will delay service
delivery to applicants and petitioners.
2. Finding Other Revenue Sources
Some comments suggested funding USCIS through fines assessed
against employers who hire aliens who are not authorized to work in the
United States. Other comments suggested a variation on the methodology,
such as charging employers more than individuals or charging additional
fees at the time of naturalization.
USCIS is statutorily barred from using fines assessed against
employers. Unless specified in law, all fines and penalties under the
immigration laws become miscellaneous United States Treasury
[[Page 29861]]
receipts and are deposited into the general fund, not the IEFA. INA
section 286(c), 8 U.S.C. 1356(c). Those additional sources of USCIS
revenue that are authorized, such as the DHS share of certain
supplemental fees collected under section 286(v) of the INA, 8 U.S.C.
1356(v), have been taken into account in USCIS budgeting and fee
setting.
USCIS believes that the methodology used to develop these fees--a
methodology based on the complexity of the specific application or
petition--is the most appropriate process to equitably allocate costs
and provide long-term stable and reliable funding. Part of USCIS'
funding problem has been reliance on temporary funding sources,
including appropriated funding. This new fee schedule will establish a
more stable source of funding. As the number of applications and
petitions increases, USCIS will be better able to respond to increasing
workload changes and will no longer be compelled to sacrifice customer
service or rely on unreliable funding sources.
D. Comments on Specific Benefit Application and Petition Fees
Many comments that suggested that USCIS seek appropriated funds or
other subsidies, or other means to reduce fees from the proposed
levels, also emphasized issues and impacts related to particular
applications and petitions. The fee development methodology is
sensitive to the costs of adjudicating each type of application or
petition based on the complexity of adjudicating it.
1. Naturalization Application
The fee for the Naturalization Application generated a large number
of comments from a wide spectrum of commenters. The proposed rule would
raise this fee from $400 to $675, including the required biometrics
fee, or a 69 percent increase. Many comments highlighted the public
interest in promoting citizenship and recommended reducing this fee.
USCIS understands the sentiment expressed by the commenters that
becoming a citizen of the United States is an honor to be cherished.
USCIS disagrees with the commenters who suggested that the proposed fee
increase is inconsistent with our tradition of welcoming and
integrating immigrants and that increasing the fee would send the wrong
message to intending citizens.
The fee for a Naturalization Application is established at $595 in
this final rule and properly reflects the intensive scrutiny with which
a request for such an honor should be reviewed. Naturalization
applicants who are initially found eligible must be examined under oath
to assure compliance with the many requirements for citizenship under
the INA including competency in English, knowledge and understanding of
United States Government and history, physical presence and maintenance
of resident status in the United States, and facts and conduct
reflecting their moral character and attachment to the United States
Constitution and law. 8 U.S.C. 1401 et seq.
In adjudicating some naturalization applications, USCIS
adjudicators must resolve complex subsidiary applications for certain
exemptions, such as the Application to Preserve Residence for
Naturalization Purposes, Form N-470, or the Medical Certification for
Disability Exceptions, Form N-648 (which is processed and adjudicated
without charge). Further, criminal and national security record checks
are required for naturalization applications and may require the
involvement of numerous USCIS personnel. In addition, the
naturalization adjudication process may require multiple interviews,
and solicitation and consideration of additional evidence bearing on
eligibility. Finally, in the event of an adverse decision on the
application or petition, the applicant is entitled to request a new
hearing by a different adjudicator. All of these factors are reflected
in the fee charged to recover the cost of adjudication.
Two factors in this final rule mitigate the Naturalization
Application fee increase. First, the final rule maintains the current
USCIS policy of permitting naturalization applicants to request an
individual fee waiver. In determining inability to pay, USCIS officers
consider all factors, circumstances, and evidence supplied by the
applicant including age, disability, household income, and
qualification within the past 180 days for a federal means tested
benefit, as well as other factors associated with each specific case.
For those applicants not granted a fee waiver, USCIS will charge a fee
of $595 for processing naturalization applications. Additionally, the
cost of fingerprints has been reduced slightly, resulting in a
decreased overall cost for naturalization applicants. Accordingly,
USCIS has determined that the effort and resources expended to process
Naturalization Applications justifies this level of fee increase.
2. Application To Register Permanent Residence or Adjust Status
Many comments emphasized the overall size of the proposed increase
for the Adjustment of Status Application fee from $325 to $905, or 178
percent. Most of the proposed fee increase for the Form I-485 was
driven by the packaging or ``bundling'' of related benefits with no
separate fee. As indicated in the proposed rule, factoring in separate
fees, applicants typically pay for additional services related to the
Form I-485 for which they will no longer pay separately. In this rule,
after consolidating the fees for the Adjustment of Status Application
and the requests for interim benefits that previously required
additional fees, the increase in the fee from $865 to $1,010 (17%),
including the biometric fee, is significantly below the average
increase for all fees.
A few comments suggested that incorporating the fee for the
Application for Employment Authorization, Form I-765, (Application for
EAD) and the fee for the Application for Travel Document, Form I-131,
(Application for Travel Document) into the Adjustment of Status
Application should only be an option. USCIS issues an Employment
Authorization Document (EAD) to the alien after it approves an
Application for Employment Authorization. An alien submits an
Application for Travel Document to apply for a travel document, reentry
permit, refugee travel document, or advance parole. EAD and travel
documents are commonly referred to as ``interim benefits.''
These commenters suggested that children may not need or desire
travel documents or work authorization, so the fee for an Adjustment of
Status Application should be consequently reduced for a child or a
family. Other comments suggested that, like refugees, asylees should
not be required to pay the portion of the new Adjustment of Status
Application fee attributable to the interim benefits, because
eligibility to work is incident to their status. Finally, several
commenters suggested that USCIS apply the fee consolidation for the
Adjustment of Status Application, Application for EAD, and Application
for Travel Document to all currently pending Adjustment of Status
Applications.
USCIS has made no adjustment in this final rule as a result of
these comments. USCIS determined that a change in the fee schedule was
not justified because a type of applicant mentioned by the commenters
may not need or want interim benefits. Neither does this rule adopt the
suggestion to process Applications for EADs or Applications for Travel
Documents for currently pending Adjustment of Status Applications
without fee. USCIS records indicate that most applicants who
[[Page 29862]]
initially choose not to apply for an EAD or travel documents soon do so
because they find that they need interim benefits almost immediately.
As for asylees and refugees, asylees are authorized to work, but USCIS
records indicate that most asylees and refugees obtain an EAD to
provide to employers as readily accepted proof that they are authorized
to work in the United States. The fees collected by USCIS for EAD
Applications fund the costs incurred by USCIS for issuing EADs. USCIS
incurs costs for adjudicating the Application for EAD which is a
different issue from an asylee's authorization to work incident to
asylee status. Further, although refugees are not required to submit a
fee for their initial Adjustment of Status Application, they are
required to pay the fee for an Application for EAD or for the
Application for Travel Document to request a refugee travel document.
Providing multiple fee options based on who typically requests interim
benefits, when records indicate that the vast majority of applicants do
request interim benefits, would be too complicated and costly for USCIS
to administer. Applicants with a pending Adjustment of Status
Application who did not pay a fee that incorporates the cost of an
Application for EAD and an Application for Travel Document must
continue to file separate interim benefit applications with the
appropriate fee for each service.
A number of comments pointed out that the packaging of these
services and the fee increase means that the total fees a family will
pay for concurrently filed Adjustment of Status Applications will
increase substantially, and argued for some form of family cap on the
total fee to be collected. These commenters pointed out that the child
fee level under the fee schedule was almost one-third lower than the
adult fee, but the $100 difference under the proposed fees represents
only an eleven percent differential between an adult's and a child's
Adjustment of Status Application fees. These comments added that this
effect exacerbated the impact of the fee changes on families. Other
commenters were concerned that, while refugees are charged no fee for
their Adjustment of Status Applications, the proposed rule provides
that asylees must pay a fee for an Adjustment of Status Application and
suggested that this treatment was disparate.
USCIS considered the suggestion that it institute a maximum fee for
a family where several members submit simultaneous Adjustment of Status
Applications (family cap). USCIS analyzed a number of scenarios to
determine at what level a family cap would not result in a significant
transfer of the direct costs for adjudicating Adjustment of Status
Applications for entire large families to individuals or smaller
families. USCIS also weighed whether or not to transfer the costs of
adjudicating Adjustment of Status Applications for large families to
only other adjustment of status applicants or to all other benefit
applications. Unfortunately, USCIS was unable to determine the size of
the family at which it was no more administratively burdensome to
process an Adjustment of Status Application for an additional relative
when processing multiple, simultaneous Adjustment of Status
Applications from family members. In the end, USCIS determined that the
policy or humanitarian considerations inherent in the decisions made in
this final rule to allow additional fee waivers is not sufficiently
prevalent in the case of family Adjustment of Status Applications to
warrant a family cap, absent such data on the requisite burden based on
size. Thus, USCIS then turned to consideration of the variation in
Adjustment of Status Application fees based on the applicant's age.
As pointed out by some comments, the fee for the Adjustment of
Status Application was $325 for aliens fourteen years of age or older,
but for aliens under fourteen years of age, the fee was $225. This
amounted to a 31 percent difference in the base filing fee. In response
to these comments, USCIS evaluated the difference in actual processing
time and costs associated with the ``Make Determination'' activity for
Adjustment of Status Applications. While the proposed fee for an
Adjustment of Status Application was based on the overall cost of
processing the average application, regardless of the applicant's age,
the large majority of Adjustment of Status Applications are filed by
persons fourteen or older. USCIS conducted an analysis of Adjustment of
Status Applications submitted concurrently as part of an application
from a family. For the application to be filed concurrently, the child
must be a derivative applicant of the adult or the child's status must
be based on the same legal authority as the adult's. This analysis
found that there is a 35 percent difference in the average time it
takes to process an Adjustment of Status Application filed by someone
under fourteen years of age versus the time it takes to process a case
filed by someone age fourteen or older. This calculation was consistent
with the methodology employed by the proposed rule in that an
identifiable adjudication was segregated and the relative complexity of
processing the benefit for a subset of applicants was determined.
Applying this difference to the fee model reduces the fee for an
Adjustment of Status Application for a family member under age fourteen
from $805 to $600, and adjusts the fee for family members age fourteen
and older from $905 to $930. Since the fee will drop for every
concurrently-filed adjustment of status application for someone under
14, families with children who all file concurrently will see a drop in
their collective adjustment fee. For example, a family of two adults
and one child will see their total adjustment application fees drop by
$155 relative to what they would have paid without this change, and a
family with two adults and two children will see their collective fees
drop by $360. A family with two adults and four children will see their
fees drop by $770.
USCIS explored establishing a child discount in other immigration
and naturalization benefit areas and has determined that a discount for
adjudication of a child is only appropriate in the case of an
Adjustment of Status Application. The Adjustment of Status Application
requires adjudication of a distinct and separate application for a
child, although it can be submitted simultaneously with other family
members. Other benefits that require submission of a separate
application from family members, but allow the family members to submit
them concurrently for processing are distinguishable. For example, no
fee is charged for the Registration for Classification as Refugee, I-
590, and the fee for the Application for Temporary Protected Status,
Form I-821, is statutorily capped at $50 per applicant, which is
substantially below its adjudication costs. Similarly, besides
children, there are no other subgroups of applicants for adjustment of
status who possess qualities that would provide for segregation of
relative adjudicative complexity that would provide sufficient data for
a separate fee calculation.
Likewise, the maximum amount payable by a family was removed from
the fee proposed for Application to Adjust Status from Temporary to
Permanent Resident (under Section 245A of Pub. L. 99-603), Form I-698,
and the Application for Status as a Temporary Resident Under Section
245A of the Immigration and Nationality Act, Form I-687. That change
was made mainly because Immigration Reform and Control Act of 1986
(Pub. L. 99-603, November 6, 1986) requires an applicant under that
[[Page 29863]]
Act to have entered the United States before January 1, 1982, which
would exclude anyone currently under the age of 18. Further, the family
cap for fees charged filing Form I-698 and Form I-687 was a policy
established by INS for legalization and established at three times the
fee for an individual. As explained earlier, a family cap that is not
based on adjudicative complexity does not comport with the methods used
for establishing the fee schedule in this rule. Therefore, beyond
reducing Adjustment of Status Application fees for children, USCIS will
not provide any discount for families based on size, and USCIS has
decided to base Adjustment of Status Application fees on the direct
costs associated with that service.
With regard to the different treatment for refugees and asylees,
the exception for a fee for refugees is based on the requirement that a
refugee must apply for adjustment of status within one year of
admission as a refugee. INA section 209(a), 8 U.S.C. 1159(a). Further,
while refugees have been affirmatively invited by the United States
Government to come to the United States for permanent resettlement,
asylees have sought admission of their own accord and requested to be
allowed to stay. While USCIS agrees that both asylees and refugees
should receive full protection from persecution, it is a reasonable
policy choice to be more generous in awarding immigration benefits to
those who are invited. Nonetheless, in response to comments on this
subject, USCIS has decided to allow asylees to request a waiver of the
Adjustment of Status Application fee on an individual basis. Section
III.E addresses changes in fee waivers in more detail below.
3. Employment Authorization for Students
Many educational institutions and their representatives submitted
nearly verbatim comments on the proposed fee increase for an
Application for EAD. These commenters expressed significant concerns
about the size of the fee and its effect on the limited financial
capability of most international students in F visa status and their
ability to apply for work authorization when they choose to participate
in the Optional Practical Training (OPT) program. These comments noted
that international students on F-1 visas are limited to 20 hours per
week of on-campus employment and the money to pay the Application for
EAD fee will curtail their ability to buy food and pay rent. Similarly,
these same commenters, for the most part, expressed general concerns
about the immigration benefit application expenses for international
students and their family members, who typically are of limited means.
For international students, F-1 status allows a student to remain
in the United States as long as they are a properly registered full-
time student. To maintain full-time status, a student must take at
least four courses per semester at the undergraduate level, and
depending on the academic program, three or four courses per semester
at the graduate level. Also, under F-1 status, a student may work part-
time in an on-campus job and in a ``practical training'' job directly
related to the student's field of study for twelve months during or
after the completion of studies. The OPT program mentioned by the
commenters grants temporary employment authorization to provide F-1
students with an opportunity to apply knowledge gained in the classroom
to a practical work experience off campus. To be eligible for OPT, a
student must have been in full time student status for at least one
full academic year preceding the submission of their application for
OPT, be maintaining valid F-1 status at the time of the application,
and intend to work in a position directly related to his or her major
field of study.
The United States places a very high value on attracting
international students and scholars to this country. The contributions
to the academic experience for all students provided by the existence
of a diverse international student body are invaluable. The resources
devoted to delivering immigration benefits to deserving students show
the importance of this goal to USCIS. USCIS also understands that
international students already face significant hurdles, including
financial hurdles, which is why the fee structure consolidated fees
where consolidation made sense, and kept fees to a minimum.
Nonetheless, substantial resources are expended by USCIS for
adjudication of the student's eligibility for employment documents and
the fee for an Application for EAD was established based on those
needs. Further, while USCIS acknowledges that the salaries provided by
OPT are helpful, the emphasis of OPT is on training students in their
fields of study, not as a source of income. To that end, the $340 cost
of requesting an Application for EAD is a very small portion of the
total expenses incurred by an alien pursuing studies in the United
States. EAD applicants may request an individual fee waiver based on
inability to pay. For Applications for EAD that are not granted a fee
waiver, USCIS will charge a fee of $340 for processing based on the
effort and resources expended to process this benefit.
4. Application for Advance Processing of Orphan Petition
Many comments focused specifically on the fees for a Petition to
Classify Orphan as Immediate Relative, Form I-600, and an Application
for Advance Processing of Orphan Petition, Form I-600A. Several
comments suggested that USCIS should reduce the fee and offer fee
waivers for orphan petitions. These commenters effectively request that
USCIS shift the costs of this program to other immigration benefit
applications and petitions.
Adjudicating orphan petitions involves some of the most complex
decision-making within immigration services because adjudication of
Petitions to Classify Orphan as Immediate Relative and Applications for
Advance Processing of Orphan Petition requires knowledge of many state
adoption regulations and statutes and foreign country adoption
requirements. Each petition must be accompanied by a home study,
background checks, and evidence that must be carefully examined.
Approval of parents as suitable to adopt is time sensitive as a result
of the potential changes in a household that may impact the suitability
of the home for an adopted orphan, such as loss of a job or divorce.
Such changes often prevent reconsideration of the parents' petition. As
a result of this approval expiration period, currently set as eighteen
months, prospective adoptive parents must submit a new petition and all
supporting documents if they wish to continue with the adoption process
if they have not been matched with a child. USCIS sometimes works with
a case for months, involving frequent contact with adoption agencies,
social workers, and prospective adoptive parents. Finally,
international orphan adoption adjudications require an investigation
and information verification, and may require travel. This fee increase
will allow USCIS to automate case management of adoption cases, further
reducing any real or perceived delays in the manual, paper-based
process currently in place.
Orphan petitioners must attest that the beneficiary will not become
a public charge in order to be approved as a suitable adoptive parent.
Further, the orphan petition fee is a small part of what a United
States citizen petitioner chooses to accept as part of the overall
process and cost of adopting a child from overseas and raising that
child. The financial circumstances required to be eligible for this
benefit directly contradict the rationale for shifting costs related to
these applications to others,
[[Page 29864]]
or for offering a waiver of the fee because of inability to pay.
A significant number of comments suggested that USCIS mitigate the
cost by extending the validity of approved orphan petitions and the
results of background checks. Commenters complained that processing in
the country from which the child comes often takes longer than the
current approval validity, which creates re-work and additional fees.
The length of the validity of the approval of any petitioner or
applicant for a benefit was not mentioned in the proposed rule and
cannot be amended by this final rule. Thus, these comments are beyond
the scope of this rule.
The final rule provides, as does the current USCIS fee schedule,
that when more than one petition is submitted by the same petitioner on
behalf of orphans who are brothers or sisters, only one fee will be
required. No fee is collected on additional siblings because USCIS
determined that processing efficiencies provided by the ability to
adjudicate two siblings simultaneously did not justify an additional
fee. However, in the case of multi-child simultaneous petitions when
the orphans are not siblings, USCIS requires separate fees for each
child because of the processing requirements of determining eligibility
of each child. In addition, if a filing fee is paid at the time of
filing an Application for Advance Processing of Orphan Petition, a fee
is not required again to file a Petition to Classify Orphan as
Immediate Relative.
Since a large number of commenters ardently mentioned this issue as
part of their comments, USCIS has decided to allow a prospective
adoptive parent to receive one extension of the approval of the
Application for Advance Processing of Orphan Petition at no charge.
Prospective adoptive parents, who have not found a suitable child for
adoption as evidenced by their failure to submit a Petition to Classify
Orphan as Immediate Relative after approval of their Application for
Advance Processing of Orphan Petition, will be allowed to request one
extension of the approval without charge, including the biometric fee.
This final rule does not change the proposed petition fee of $670. The
request from the applicant for an extension of the approval must be in
writing and received by USCIS prior to the expiration date of approval
indicated on the Notice of Favorable Determination Concerning
Application for Advance Processing of Orphan Petition, Form I-171H.
This no charge extension is limited to only one occasion. A complete
application and fee must be submitted for any subsequent application.
This final rule also provides that no biometric service fee will be
charged for an update of the biometrics required for an extension of an
approved Application for Advance Processing of Orphan Petition. The
same limitations apply.
USCIS determined that the costs of processing an initial extension
were minimal when it results only from the parents' inability to match
with a child within the first approval period and the update process
begins before expiration actually occurs. The full fee will be charged,
however, for adjudicating a new application when a child has not been
matched after the first extension (the second approval period). Because
of the length of time involved (three years) and the need for
substantial updates, the second update often involves the same
complexity as the initial application. Similarly, when the approval
expires and a new application is submitted as a result of the first
child selected by the prospective adoptive parents not being adopted
(denial of Petition to Classify Orphan as Immediate Relative, Form I-
600), the resources expended to adjudicate the first Petition to
Classify Orphan as Immediate Relative require a new fee for beginning
the process anew for a new orphan from the same country or a different
foreign country as the first application.
5. Entrepreneurs
One commenter, representing an association of affected individuals,
claimed that the fee for the Immigrant Petition by Alien Entrepreneur,
Form I-526, is incorrect because this benefit is only adjudicated at
USCIS service centers, not at USCIS local offices as stated in the
proposed rule. In addition, the commenter stated that USCIS has not
shown why the percentage increase for the Immigrant Petition by Alien
Entrepreneur (for EB-5 status) filing fees should be higher than
others, especially when compared to the Petition by Entrepreneur to
Remove Conditions, Form I-829. The commenter stated that petitions to
remove conditions generally should take less time to adjudicate the
original entrepreneur petition, which has a lower proposed fee. USCIS
recognizes that the Immigrant Petition by Alien Entrepreneur is indeed
adjudicated at local offices. USCIS service centers will refer certain
cases to local offices for interview, however, the volumes of Immigrant
Petition by Alien Entrepreneur filings referred are relatively small
(three percent), and the resulting cost impact is minimal.
The Immigrant Petition by Alien Entrepreneur and the Petition by
Entrepreneur to Remove Conditions are two of the more labor intensive
petitions that USCIS processes, as evidenced by the high completion
rates in the proposed rule. As stated in the proposed rule, the more
complex an immigration or naturalization benefit application or
petition is to adjudicate, the higher the unit costs. Although the
completion rates for the entrepreneur petition and the petition to
remove conditions are approximately the same, the fees are
substantially different because the costs are being spread across a
smaller number of petitions (600 for immigrant entrepreneur petitions
compared to 45 for Petitions By Entrepreneur to Remove Conditions),
resulting in a higher unit cost for the petition to remove conditions.
USCIS explained this reasoning in the proposed rule and it remains
valid.
6. Effect on Availability of Skilled Workers
Some commenters specifically argued that an increase in fees will
deter employers from seeking skilled workers from outside the United
States to fill gaps in the workforce, adversely affecting the
competitiveness of the United States. USCIS disagrees with the notion
that an increase in fees will deter employers from seeking skilled
workers for employment in the United States. There is no evidence
suggesting that fee increases deter skilled workers from coming to the
United States, as these comments suggested. In addition, this rule does
not require an individual alien to pay his own petition fees since the
fees for employment-based visa petitions are generally paid by the
firms hiring an alien for a position. Moreover, in most employment-
based visa categories, the demand for immigrants greatly exceeds the
maximum number of visas permitted each year under the INA. For example,
applications for H-1B visas exceeded the FY 2007 statutory cap on the
first day that applications were accepted.
USCIS expects substantial demand for these visas to continue
following the implementation of this rule. Similarly, there is no
evidence suggesting a direct correlation between a fee increase of this
magnitude for immigration benefits and illegal immigration, as some
comments have suggested.
One commenter, representing an association of agricultural
employers, claimed that the proposed fee for the Nonimmigrant Worker
Petition is unfair because the cost to adjudicate this benefit varies
greatly depending on the type of petitioner. The commenter suggested
that H-2A employers are subsidizing the other, more complicated
petitions of this form type. USCIS
[[Page 29865]]
recognizes that some adjudications within a particular form type are
more expensive than others, and that the more complex petitions are
subsidized by the simpler ones since the fee is calculated as an
average. While USCIS understands the position of this commenter, it
would be far too complex and expensive to administer a fee schedule
based on the type of applicant or petitioner within a particular
benefit. USCIS disagrees with this recommendation as it would further
increase fees to recover the additional costs necessary to administer
this change.
E. Fee Waivers and Exemptions
A number of comments focused on applicants or petitioners who would
not be required to pay a filing fee for immigration benefits, relating
to fee exemptions for classes of applicants or petitioners and requests
for fee waivers due to inability to pay, as set forth in 8 CFR
103.7(c). Some comments argued that class fee exemptions and fee
waivers should be further limited because they simply transfer costs to
other applicants or petitioners. Others argued that fee waivers should
be granted on a far wider basis. In response to comments, USCIS
reconsidered the fee waiver provisions of the proposed rule.
A fee waiver based on inability to pay requires that other
applicants or petitioners pay for the same service and for a portion of
the fee being waived for that applicant or petitioner. Fee waivers
represent approximately one percent of the total applications and
petitions filed with USCIS each year.
Many comments implied that waiving fees in such a small percentage
of cases suggests that the current fee waiver policy is far too
stringent, and should be liberalized rather than further restricted.
However, while the number of fee waivers USCIS grants represents a
small percentage of total filings, USCIS has historically granted most
of the fee waiver requests received. Another reason why the number of
fee waivers may be seen by some as low is that individual fee waivers
are granted in addition to fee exemptions granted to certain classes of
individuals. Taken together, on a transactional basis, USCIS does not
collect a fee in over seven percent of the cases received. Excluding
business petitions to bring in foreign workers, nonimmigrant matters
where the aliens must be able to support themselves to be eligible for
status, and cases involving international travel, fee waivers represent
over eight percent of the remaining workload. Given the complexity of
asylum and refugee processing, from a workload perspective, fee waivers
represent well over ten percent of the remaining effort.
In addition, the application fee for Temporary Protected Status
(TPS) is limited by statute to $50. INA section 244(c)(1)(B), 8 U.S.C.
1254a(c)(1)(B). USCIS has historically waived the filing fee for TPS
status for aliens unable to pay even this statutorily capped fee. 8 CFR
244.20.
1. Victims and Asylee Adjustment of Status Applications
USCIS proposed to exempt certain classes of aliens from paying a
filing fee where it believes that the incidence of fee waivers due to
inability to pay would be very high. In the proposed rule, USCIS
proposed to expand the class fee exemptions to three small volume
programs: Victims of human trafficking (T visas), victims of violent
crime (U visas), and Violence Against Women Act (VAWA) self
petitioners. See INA sections 101(a)(15)(T) or (U), 8 U.S.C.
1101(a)(15)(T) and (U), and Public Law 109-162, secs. 811-817, 119
Stat. 2960, 3057 (Jan. 5, 2006). Those programs involve the personal
well being of a few applicants and petitioners, and the decision to
waive these fees reflects the humanitarian purposes of the authorizing
statutes. The final rule maintains this blanket fee exemption because
it is consistent with the legislative intent to assist persons in these
circumstances. Anecdotal evidence indicates that applicants under these
programs are generally deserving of a fee waiver. Thus, USCIS
determined that these programs would likely result in such a high
number of waiver requests that adjudication of those requests would
overtake the adjudication of the benefit requests themselves.
After reviewing the potential numbers of such applicants, USCIS has
decided to allow these classes of aliens to request a fee waiver for
when filing an Adjustment of Status Application. USCIS has made this
determination for all of the reasons stated above, but tempered by the
fact that an application to adjust status cannot be filed for a
significant time after the alien has been granted T, or U status.
Accordingly, this rule provides that a Form I-485 may be subject to a
fee waiver when the person's eligibility for adjustment of status stems
from asylum status, T status (victims of human trafficking), U status
(victims of violent crime who assist in the prosecution), self
petitioners under the Violence Against Women Act, or where by law the
person otherwise is not required to demonstrate that he or she will not
become a public charge, including but not limited to, Adjustment of
Status Applications for Special Immigrant--Juveniles, or based on the
Cuban Adjustment Act, Haitian Refugee Immigration Fairness Act, and the
Nicaraguan Adjustment and Central American Relief Act. This final rule
does not expand fee waiver eligibility further in adjustment of status
cases. The changes made to the fee waiver and exemption eligibility
criteria did increase fee waiver and exemption costs somewhat, but this
had no impact on the resulting fee schedule given the insignificant
volume numbers associated with the affected applications and petitions.
2. Special Immigrant--Juvenile
A number of commenters suggested that ``Special Immigrant--
Juveniles'' also should be exempt from certain fees. A ``Special
Immigrant--Juvenile'' is an immigrant under the age of 21, unmarried,
who is a ward of a court in the United States (for the most part State
courts) or eligible for long-term foster care or in custody of a state
agency, and judicial proceedings have determined that it would not be
in that Special Immigrant--Juvenile's best interests to be returned to
his or her home country.
USCIS has determined that a fee exemption for this petition would
be consistent with the exemptions granted for other classes of aliens
and the humanitarian purpose of the statute. Therefore, the final rule
exempts ``Special Immigrant--Juveniles'' from the fee for submitting a
Petition for Amerasian, Widow(er), or Special Immigrant, Form I-360.
This fee exemption is a change from the proposed rule in addition to
the change allowing a Special Immigrant--Juvenile to apply for an
individual waiver of the fee for an Adjustment of Status Application.
3. Biometric Fee
Numerous comments suggested that the biometric fee was a burden for
those aliens who could not afford it. In response, USCIS conducted an
analysis of the costs to USCIS if such waivers were allowed. As with
any other waiver, the loss of that fee revenue would necessarily be
spread across all other benefit applications and petitions, having the
potential to increase those fees.
To analyze this issue, USCIS determined the total number of
requests for waivers received in FY 2006, the number of fee waivers
approved, and the number approved that were for applications where
biometrics were required. USCIS determined that, had the biometric fee
been waived for those
[[Page 29866]]
applicants or petitioners whose waiver request for the underlying
application or petition was approved, the associated costs for
collecting the biometrics spread across all paying applicants would
have added only one dollar to the biometric collection fee. Because all
fees are rounded to the nearest $5 increment, the model showed that
allowing a fee waiver for the biometric fee would result in no
increase. Therefore, USCIS decided to accept the commenters'
suggestion. This final rule provides discretion to USCIS officials to
waive the biometric fee, following the same general guidelines used to
consider all other requests for fee waivers such as financial hardship.
Beyond these limited programs, and those for asylees and refugees,
USCIS has decided not to shift the costs of processing any other
specific immigration benefit applications and petitions to others.
F. Authority To Set and Collect Fees
Some comments suggested that the proposed rule exceeded USCIS'
statutory authority to collect fees. Some comments suggested that
administrative and overhead costs were not related to the provision of
services and should be excluded. Other comments suggested that
enforcement costs should be excluded from the fees, while others
posited that all of the enforcement costs of immigration and law
enforcement agencies should be recovered by fees. Underlying these
comments is the issue of compliance with the authorizing statute and
internal Executive Branch guidance. On the other hand, one commenter
particularly noted that while USCIS is permitted to fund all of its
operations from fees, there is no statutory mandate requiring it to do
so. These comments raise the issue of the general structure of the fee
account, and whether user fees can legally recover certain costs.
Accordingly, a more detailed explanation of the legislative authority
and management guidance is provided.
1. Authority Under the INA
Before the IEFA was created in 1988, all activities related to case
processing were funded by appropriations. Public Law 100-459, sec. 209,
102 Stat. 2186 (Oct. 1, 1988). While fees were charged prior to 1988,
the fees were treated as miscellaneous receipts of United States
Treasury and deposited in the general fund; those fees were not
available to USCIS for spending. The fee account was created to provide
an alternative to appropriations. As many of the comments stated, the
law does not preclude the use of appropriations to subsidize fee
receipts to fund operations. In the absence of appropriations, however,
the only funding source is fee revenue. The President's FY 2008 budget
is based on user fee funding for USCIS operations (other than expansion
of employment verification) and will fund all other USCIS operations
from fee receipts. Accordingly, the proposed rule was issued in
conjunction with the FY 2008 budget proposal.
INA Section 286(m), 8 U.S.C. 1356(m), provides that the United
States may collect fees at a level that will ensure recovery of the
full costs of providing adjudication and naturalization services,
including the costs of providing similar services without charge to
asylum applicants and certain other immigrants:
Notwithstanding any other provisions of law, all adjudication
fees as are designated by the [Secretary] in regulations shall be
deposited as offsetting receipts into a separate account entitled
``Immigration Examinations Fee Account'' in the Treasury of the
United States, * * *: Provided further, 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, including the costs of similar services provided without
charge to asylum applicants or other immigrants. Such fees may also
be set at a level that will recover any additional costs associated
with the administration of the fees collected.
Under this authority, user fees are employed not only for the benefit
of the payor of the fee and any collateral benefit resulting to the
public, but also provide a benefit to certain others, particularly
asylum applicants and refugees and others whose fees are waived.
2. General Authority for Charging Fees
Comments suggested that only the activities directly relating to
specific adjudications should be charged to those who apply for the
benefits. These comments rely on statutory authority separate from the
authority for these fees. The general authority for the federal
government to collect fees stems from the Independent Offices
Appropriation Act, 1952 (IOAA), 31 U.S.C. 9701(b). Under the IOAA, a
``value'' to the recipient is a key threshold factor and the costs of
``public interest'' have been effectively included within the fees.
National Cable Television Ass'n v. United States, 415 U.S. 336 (1974);
FPC v. New England Power Co., 415 U.S. 345 (1974); Seafarers Internat'l
Union v. Coast Guard, 81 F.3d 179, 183 (D.C. Cir. 1996). In New England
Power Co., the Supreme Court held that the IOAA authorizes ``a
reasonable charge'' to be made to ``each identifiable recipient for a
measurable unit or amount of Government service or property from which
[the recipient] derives a special benefit.'' 415 U.S. at 349 (quoting
Bureau of the Budget Circular No. A-25 (Sept. 23, 1959)). Such fees may
be assessed even when the service redounds in part to the benefit of
the public as a whole. National Cable Television Ass'n, 415 U.S. at
343-44. So long as the service provides a special benefit above and
beyond that which accrues to the public at large to a readily-
identifiable individual, the fee is permissible. New England Power, 415
U.S. at 349-51 & n. 3.
Prior to the enactment of section 286(m) of the INA, fees charged
for immigration services were governed by the IOAA and were judicially
reviewed under the IOAA. A more elementary cost analysis than that
currently used was upheld by the courts. Ayuda, Inc. v. Attorney
General, 661 F. Supp. 33 (D.D.C. 1987), aff'd, 848 F.2d 1297 (D.C. Cir.
1988). As the Court of Appeals in Ayuda stressed, the procedures were
``triggered only at the instance of the individual who seeks,
obviously, to benefit from them.'' 848 F.2d at 1301.
The United States is a nation largely built by immigrants and
immigration continues to refresh this country. Accordingly, USCIS
agrees that there is a certain undeniable public interest in
immigration. The costs reflected in the proposed fees exist, however,
because applicants and petitioners seek immigration benefits and
services. There are also public interests in discrete processes such as
background checks. Background checks are an integral part of
determining the applicant's eligibility for a benefit, and thus, their
costs are appropriate for full recovery through a fee. Were it not for
the underlying application or petition for immigration benefits, these
specific security checks would not have been conducted.
USCIS authority under section 286(m) of the INA is an exception to
any limitation of the IOAA. 31 U.S.C. 9701(c). The relevant, second
proviso was added to the INA after the Court of Appeals decided Ayuda
under the IOAA. Public Law 101-515, sec. 210(d)(1), (2), 104 Stat.
2120, 2121 (Nov. 5, 1990). The statutory provisions in section 286(m)
of the INA are broader than the IOAA, authorizing USCIS to recover the
full cost of providing benefits and ensuring sufficient revenues to
invest in improved service and technology. Even though the requirements
of the IOAA do not apply in developing these fees, USCIS is mindful of
the need to explain the
[[Page 29867]]
process to the general public. Cf. Engine Manufacturers Assoc. v. EPA,
20 F.3d 1177 (D.C. Cir. 1994).
3. Surcharge for Asylum, Refugee and Fee Waiver/Exemption Costs
Some comments questioned whether fees should include the surcharge
for services USCIS provides without fee or where it waives a fee, and
asserted that these costs should not be transferred to other
applicants. Pursuant to section 286(m) of the INA, USCIS does include
these surcharges in other application and petition fees.
USCIS could charge a specific fee to apply for asylum and that fee
would be limited to the ``costs in adjudicating the applications.''
Section 208(d)(3) of the INA, 8 U.S.C. 1158(d)(3). The humanitarian
nature of the asylum process gives USCIS good reason not to exercise
this authority. USCIS has never charged fees for an Application for
Asylum, Form I-589. For the same reasons, asylum applicants are exempt
from the requirement to submit the fee for fingerprinting with the
application for asylum. 8 CFR 103.2(e)(4)(ii)(B).
4. OMB Circular A-25
When a service enables the beneficiary to obtain more immediate or
substantial gains or values than those that accrue to the general
public, a user fee is appropriate. The fact that a process benefits the
public interest as well as a private party does not mean that process
cannot be funded by a user fee. The entire legal immigration and
citizenship process, with respect to both grants of benefits and
denials for national security or other reasons, is one that benefits
the public as well as private interests, but focuses on the
adjudication of eligibility for individual benefits. A fee-based
structure is appropriate even when the public as a whole benefits. As
OMB Circular A-25 makes clear, ``when the public obtains benefits as a
necessary consequence of an agency's provision of special benefits to
an identifiable recipient (i.e., the public benefits are not
independent of, but merely incidental to the special benefits), an
agency need not allocate any costs to the public and should seek to
recover from the identifiable recipient either the full cost to the
Federal Government of providing the special benefit or the market
price, whichever applies.'' OMB Circular A-25, ] 6.a.3. Accordingly,
the proposed fees do not conflict with the guidance in OMB Circular A-
25.
Moreover, OMB Circular A-25 is one of a series of circulars,
bulletins and memoranda issued by OMB for the internal management of
the Executive Branch. To be transparent, the circulars and agency use
of the circulars are often publicly spelled out in regulations and
other public statements. In this case, as with any fee rule of this
nature and magnitude, the proposed rule and this final rule have been
considered by OMB and other Executive offices in accordance with the
appropriate Executive Orders, including Executive Order 12866, as
amended, and other management instructions and directives.
While section 286(m) of the INA is a separate authority for the
cost analysis and fees, as stated earlier, USCIS follows the procedures
outlined in OMB Circular A-25 and standard accounting procedures as
discussed in the proposed rule to the extent that they are applicable.
Further, the ``full cost'' concept also includes the amount required to
manage USCIS or ``overhead.'' The proposed rule described the types of
costs that USCIS considered as overheard when determining the proposed
fee levels.
One commenter provided a detailed but limiting analysis of USCIS'
authority under section 286(m) of the INA, 8 U.S.C. 1356(m), suggesting
that ``full cost'' was more limited than suggested in the proposed rule
and limited to specific ``activities,'' and suggesting that most of the
enhancements fell outside USCIS authority to recover as fees. USCIS
disagrees.
Section 286(m) permits USCIS wide latitude in determining the
degree to which fees will be used to support operations. USCIS, in
conjunction with DHS and OMB, has determined that fees should recover
all, but not more, than the cost of operation for USCIS. Accordingly,
the Administration has not requested an appropriation for USCIS, except
specific funds for expansion of a voluntary employment verification
program, for which USCIS is prohibited by statute from charging fees
for this program. Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Public Law 104-208, tit. IV, sec.
402(c)(1), 110 Stat. 3009-657 (Sept. 30, 1996).
The ``full cost'' of services may be interpreted, and USCIS
interprets the full cost of services to mean all of the support costs
for such service within USCIS. The activities that may be included are
not strictly those with a direct effect on a specific application or
petition, but may include those activities that support the
determination, including determining whether fraud is being perpetrated
against the immigration system and providing public information to help
improve understanding of both the specific applications and petitions
and the manner in which immigration benefits are adjudicated.
Accordingly, USCIS believes that all of the costs identified in the
proposed rule may be recovered through fees.
Finally, the costs of all of the 27 identified enhancements may be
recovered. Some of these enhancements are designed to comply with
Congressional mandates for the operation of the government; others are
designed to ensure that USCIS operates securely and efficiently. While
these costs and many other enhancements could be the basis for
disagreement, USCIS acts within its discretion to account for them
within the fees to be charged.
5. Homeland Security Act
A commenter suggested that the proposed rule, if promulgated in
final form, exceeded the authority provided to DHS in the Homeland
Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 1135 (Nov.
26, 2002). In particular, the commenter suggested that the division of
functions between USCIS under section 451 of the HSA, 6 U.S.C. 271, and
the then-Under-Secretary for Border and Transportation Security under
section 441 of the HSA, 6 U.S.C. 251, required a more limited scope for
USCIS fees, excluding any law enforcement or national security
functions under the Fraud Detection and National Security operations.
Another commenter suggested that USCIS authority was even more
restricted to the functions of the former Adjudications Branch of the
INS that were transferred to DHS. By contrast, another commenter
conceded that while USCIS is permitted to fund all of its operations
from fees, there is no statutory mandate requiring it to do so.
DHS disagrees with these suggested restrictions and agrees that it
may fund, as a matter of discretion, all of USCIS operations, or more,
from fees. Congress provided the Secretary with reorganization
authority to allocate or reallocate functions within DHS. HSA, section
872, 6 U.S.C. 452. The division of functions transferred by the HSA is
subject to the direction and management of the Secretary. HSA sections
101, 102; 6 U.S.C. 111, 112. Accordingly, the Secretary may adjust the
functions within USCIS or across component lines as appropriate.
The reorganization of functions within USCIS to create the FDNS was
a consolidation of specific previous functions to streamline
operations. Accordingly, USCIS disagrees that the inclusion of FDNS in
the fee calculation is inappropriate and will continue to fund that
function through fees.
[[Page 29868]]
Furthermore, the functions performed by USCIS are entirely consistent
with those transferred from INS to USCIS by the HSA.
Accordingly, this final rule establishes a level of fees sufficient
to recover the full cost of operating USCIS. The rule has not been
amended to include other costs that could be legally charged or to
exclude any costs of operating USCIS.
G. Methods Used To Determine Fee Amounts
The cost of providing the right benefit to the right person in an
appropriate amount of time without compromising security is a complex,
carefully administered process. The fees promulgated in this final rule
reflect the costs resulting from the complexity of the various
immigration benefits that USCIS administers and the costs of the large
number of benefits provided for which there is no charge. By recovering
the full cost of doing business, the revised fee schedule will enable
USCIS to reduce application and petition processing times and improve
customer service, and in the long run, make the legal immigration
process more secure, efficient, and welcoming to all immigrants.
1. USCIS Costs
A number of comments questioned or asked for additional information
on the methodology used to determine USCIS costs. Others questioned the
costs and calculations provided in the proposed rule, while some
requested an invoice that details the costs of services. USCIS is
making no changes to the final rule as a result of these comments.
Detailed information on the methodology and the cost components and
calculations was provided in the proposed rule and remains on the
docket of this rule, and will be provided directly by USCIS upon
request. The underlying supporting elements, such as independent legal
requirements, the General Schedule pay scales, or travel reimbursement
rates, are all publicly available. In the notice of proposed
rulemaking, USCIS offered to provide the public with an opportunity to
review the functioning of the computerized cost model used by USCIS
through onsite viewing on its computer system. While USCIS cannot
provide complete access to the computer software purchased under
license, USCIS' fee determination is, within reason, an open process,
and a summary of how calculations were made and results achieved were
available for review upon request. USCIS did not receive any requests
to access the modeling program.
Finally, preparation of an ``invoice'' would be an ad