You are on page 1of 24

Federal Register / Vol. 72, No.

103 / Wednesday, May 30, 2007 / Rules and Regulations 29851

electronic funds transfer or other means (b) If the Intermediary does not have Dated: May 17, 2007.
as specified in the loan documents. an existing loan with RUS, the Douglas L. Faulkner,
Intermediary will submit a copy of its Deputy Under Secretary, Rural Development.
§ 4280.54 Construction procurement annual audit to Rural Development
requirements. [FR Doc. 07–2636 Filed 5–29–07; 8:45 am]
within 90 days of its completion. All BILLING CODE 3410–XY–U
Construction, including bidding and REDL audits must be conducted in
awarding of contracts, must be accordance with Generally Accepted
conducted in a manner that provides Government Auditing Standards or
maximum open and free competition. Generally Accepted Accounting DEPARTMENT OF HOMELAND
Principles and REDG audits in SECURITY
§ 4280.55 Monitoring responsibilities.
accordance with 7 CFR part 3052.
(a) The Intermediary must monitor the 8 CFR Part 103
Project to ensure that: (c) Rural Development may require
(1) Funds are used only for the Ultimate Recipients that receive loans [Docket No. USCIS–2006–0044; CIS No.
approved purposes as specified in the financed with Grant funds provided 2393–06]
legal documents; under the REDG Program to submit
RIN 1615–AB53
(2) Disbursements and expenditures annual audits to comply with Federal
of funds are properly supported with audit regulations. In accordance with 7 Adjustment of the Immigration and
certifications, invoices, contracts, bills CFR part 3052, Ultimate Recipients that Naturalization Benefit Application and
of sale, or other forms of evidence, are nonprofit entities, or a State or local Petition Fee Schedule
which are maintained on the premises government, may be required to submit
of the Intermediary; an audit subject to the threshold AGENCY: United States Citizenship and
(3) Project time schedules are being established in OMB Circular No. A–133. Immigration Services, DHS.
met, projected work by time periods is ACTION: Final rule.
§§ 4280.57–4280.61 [Reserved]
being accomplished, and other
performance objectives are being SUMMARY: This rule adjusts the fee
§ 4280.62 Appeals.
achieved; and schedule for U.S. Citizenship and
(4) The Project is in compliance with An Intermediary may appeal any Immigration Services (USCIS)
all applicable regulations. appealable adverse decision made by immigration and naturalization benefit
(b) Rural Development may inspect Rural Development that affects the applications and petitions, including
and copy records and documents that Intermediary in accordance with 7 CFR nonimmigrant applications and visa
pertain to the Project. The Intermediary part 11. petitions. These fees fund the cost of
must retain these records for the term of processing applications and petitions
§ 4280.63 Exception authority. for immigration benefits and services,
the Project loan plus 2 years. In
addition, Rural Development may also Except as specified in paragraphs (a) and USCIS’ associated operating costs.
perform Project site visits and reviews through (c) of this section, the RBS USCIS is revising these fees because the
of the use of loan or Grant proceeds. Administrator may, on a case-by-case current fee schedule does not
(c) Rural Development will review basis, make exceptions to any adequately reflect current USCIS
and monitor Grants in accordance with requirement or provision of this subpart, processes or recover the full costs of
7 CFR parts 3015, 3017, 3018, 3019, if such exception is necessary to services provided by USCIS. Without an
3021, and 3052. implement the intent of the authorizing immediate adjustment of the fee
statute in a time of national emergency schedule, USCIS cannot provide
§ 4280.56 Submission of reports and or in accordance with a Presidentially- adequate capacity to process all
audits. declared disaster, or when such an applications and petitions in a timely
(a) In addition to any reports required exception is in the best interests of the and efficient manner. In addition, the
by 7 CFR parts 3015 and 3019, the Federal Government and is otherwise revised fees will eliminate USCIS’
Intermediary must submit the following not in conflict with applicable law. dependency on revenue from interim
monitoring reports to Rural benefits, temporary programs, and
(a) Applicant eligibility. No exception
Development: premium processing fees. This rule also
to applicant eligibility can be made.
(1) Loan. The Intermediary must merges fees for certain applications and
submit Form RD 4280–1 ‘‘Survey of (b) Project eligibility. No exception to petitions so applicants and petitioners
Recipients of Rural Economic project eligibility can be made. will only have to pay a single fee. In
Development Loan and Grant Program’’ (c) Rural area definition. No addition, the rule expands the classes of
to Rural Development on an annual exception to the definition of rural area, aliens that will be exempt from paying
basis until it no longer owes money to as defined, can be made. filing fees for certain immigration
USDA under the REDLG Program. benefits, and modifies the criteria for
(2) Grant (Revolving Loan Fund). The §§ 4280.64–4280.99 [Reserved] waiving the filing fee due to an
Intermediary must submit the Form RD individual’s inability to pay. Based on
§ 4280.100 OMB control number.
4280–1 to Rural Development on an comments received by USCIS during the
annual basis until all projects financed The information collection public comment period, this rule
with Rural Development Grant proceeds requirements contained in this changes the fees for adjustment of status
have been repaid or are otherwise regulation have been approved by the applications, and the fee waiver and
retired, whichever occurs last. Office of Management and Budget exemption eligibility criteria for several
cprice-sewell on PRODPC61 with RULES

Thereafter, on a triennial basis until the (OMB) and have been assigned OMB immigration benefits. This final rule
fund is terminated, the Intermediary control number 0575–0035. A person is will provide sufficient funding for
will submit to Rural Development the not required to respond to this USCIS to meet national security,
Form RD 4280–1, reporting on the collection of information unless it customer service, and processing time
activity of all loans made from the displays a currently valid OMB control goals, and to sustain and improve
Revolving Loan Fund. number. service delivery.

VerDate Aug<31>2005 15:13 May 29, 2007 Jkt 211001 PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1
29852 Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Rules and Regulations

DATES: This rule is effective July 30, 9. Financial Audits (proposed rule); 63 FR 43604 (Aug. 14,
2007. Applications or petitions mailed, 10. Acceptance of Electronic Payment 1998) (final rule fee adjustment).
postmarked, or otherwise filed, on or options In 2004, the Government
after July 30, 2007 must include the new 11. Other USCIS Fees
Accountability Office (GAO) reported
IV. Statutory and Regulatory Reviews
fee. A. Regulatory Flexibility Act that the fees collected by USCIS were
FOR FURTHER INFORMATION CONTACT: Paul B. Unfunded Mandates Reform Act of 1995 insufficient to fund USCIS operations.
Schlesinger, Chief, Budget Division, C. Small Business Regulatory Enforcement GAO, Immigration Application Fees:
Office of Planning, Budget and Finance, Fairness Act of 1996 Current Fees are Not Sufficient to Fund
United States Citizenship and D. Executive Order 12866 U.S. Citizenship and Immigration
Immigration Services, Department of E. Executive Order 13132 Services’ Operations (GAO–04–309R,
Homeland Security, 20 Massachusetts F. Executive Order 12988 Jan. 5, 2004). GAO recommended that
G. Paperwork Reduction Act USCIS ‘‘perform a comprehensive fee
Avenue, NW., Suite 4052, Washington,
DC 20529, telephone (202) 272–1930. List of Acronyms and Abbreviations study to determine the costs to process
SUPPLEMENTARY INFORMATION: ABC—Activity-Based Costing new immigration applications.’’ Id. at 3.
BSS—Biometrics Storage System In response to GAO’s recommendations,
Table of Contents USCIS undertook a comprehensive fee
CBP—United States Customs and Border
I. Background Protection review to revise its application and
II. Final Rule DHS—Department of Homeland Security petition fees to ensure full recovery of
A. Application To Register Permanent EAD—Employment Authorization Document its operational costs.
Residence or Adjust Status FBI—Federal Bureau of Investigation
B. Intercountry Adoptions
As discussed in the proposed rule, the
FDNS—Fraud Detection and National
C. Fee Waivers and Exemptions Security
Immigration and Nationality Act of 1952
D. Miscellaneous Changes and Corrections FY—Fiscal Year (INA), as amended, provides for the
E. Summary of Final Fees GAO—Government Accountability Office collection of fees at a level that will
III. Public Comments on the Proposed Rule GDP—Gross Domestic Product ensure recovery of the full costs of
A. General Comments HSA—Homeland Security Act providing adjudication and
B. Relative Amount of Fees ICE—United States Immigration and Customs naturalization services, including the
1. Recovery of Additional Costs and Enforcement costs of providing similar services
Enhancements IEFA—Immigration Examinations Fee without charge to asylum applicants
2. Proposed Fees Are Unreasonably High Account
3. Improve Service, Reduce Inefficiencies
and certain other immigrants. INA
INA—Immigration and Nationality Act
4. Increases Relative to Time INS—Immigration and Naturalization Service
section 286(m), 8 U.S.C. 1356(m). The
5. Increases Relative to Other Standards IOAA—Independent Offices Appropriation INA also states that the fees may recover
6. Grandfathering Act administrative costs as well. Id. The fee
7. Budget Decisions Necessary To LPR—Lawful Permanent Resident revenue collected under INA section
Administer Immigration Benefits OIG—Office of Inspector General 286(m) remains available to provide
8. Reorganization OMB—Office of Management & Budget immigration and naturalization benefits
C. Alternative Sources of Funding OPT—Optional Practical Training and the collection of, safeguarding of,
1. Appropriated Funds PPBS—Planning Programming Budgeting and accounting for fees. INA section
2. Finding Other Revenue Sources System
D. Comments on Specific Benefit
286(n), 8 U.S.C. 1356(n).
SSA—Social Security Administration
Application and Petition Fees TPS—Temporary Protected Status USCIS must also conform to the
1. Naturalization Application USCIS—United States Citizenship and requirements of the Chief Financial
2. Application To Register Permanent Immigration Services Officers Act of 1990 (CFO Act), 31
Residence or Adjust Status VAWA—Violence Against Women Act U.S.C. 901–03. The CFO Act requires
3. Employment Authorization for Students ZBB—Zero Based Budget each agency’s Chief Financial Officer
4. Application for Advance Processing of (CFO) to ‘‘review, on a biennial basis,
Orphan Petition I. Background
the fees, royalties, rents, and other
5. Entrepreneurs
On February 1, 2007, U.S. Citizenship charges imposed by the agency for
6. Effect on Availability of Skilled Workers
E. Fee Waivers and Exemptions and Immigration Services (USCIS) services and things of value it provides,
1. Victims and Asylee Adjustment of Status published a notice of proposed and make recommendations on revising
Applications rulemaking proposing to adjust USCIS’ those charges to reflect costs incurred by
2. Special Immigrant—Juvenile immigration and naturalization benefit it in providing those services and things
3. Biometric Fee fee schedule. 72 FR 4888. USCIS’ of value.’’ Id. at 902(a)(8). This final rule
F. Authority To Set and Collect Fees current fee schedule does not establish reflects recommendations made by the
1. Authority Under the INA a level of funding sufficient to fully DHS CFO and USCIS CFO as required
2. General Authority for Charging Fees fund USCIS operations, allow for future under the CFO Act.
3. Surcharge for Asylum, Refugee and Fee
Waiver/Exemption Costs
requirements, ensure adequate staffing, Office of Management and Budget
4. OMB Circular A–25 or provide USCIS with funding (OMB) Circular A–25 establishes
5. Homeland Security Act sufficient for technological capabilities Federal policy regarding fees assessed
G. Methods Used To Determine Fee to continue or improve timely and for Government services and the basis
Amounts efficient processing of immigration upon which federal agencies set user
1. USCIS Costs benefits. The fees that fund the IEFA charges sufficient to recover the full cost
2. Alternative Budget Modeling were last updated on October 26, 2005, to the Federal Government. OMB
3. ‘‘Make Determination’’ Activity but merely to adjust the existing fee Circular A–25, User Charges (Revised),
4. Activity-Based Costing
cprice-sewell on PRODPC61 with RULES

schedule to reflect inflation. See 70 FR section 6, 58 FR 38142 (July 15, 1993)

5. Calculating Specific Processing
56182 (Sept. 26, 2005). The last (OMB Circular A–25). Under OMB
6. Overhead Charges comprehensive fee review was Circular A–25, the objective of the
7. Recovering Deficit From Current conducted in fiscal year 1998 by the United States Government is to ensure
Operations Immigration and Naturalization Service that it recovers the full costs of
8. Charging a Flat Fee (INS). See 63 FR 1775 (Jan. 12, 1998) providing specific services to users. Full

VerDate Aug<31>2005 15:13 May 29, 2007 Jkt 211001 PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1
Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Rules and Regulations 29853

costs include, but are not limited to, an USCIS business operations, all of which This final rule also provides that no
appropriate share of— will greatly strengthen the ability of biometric fee will be charged for an
(a) Direct and indirect personnel USCIS to perform its mission and place update of an approved Application for
costs, including salaries and fringe USCIS in a better position to support Advance Processing of Orphan Petition.
benefits such as medical insurance and possible future legislative reforms. This Section III.D.4. below discusses the
retirement; fee rule assumes that no new comments received in this area and the
(b) Physical overhead, consulting, and appropriation will be enacted. reasons for making this change.
other indirect costs, including material This final rule largely implements the
and supply costs, utilities, insurance, C. Fee Waivers and Exemptions
fee structure described in the proposed
travel and rents or imputed rents on rule, but makes some adjustments to the The final rule alters the proposed rule
land, buildings, and equipment; and, fee schedule based on public comments regarding fee waivers in three important
(c) Management and supervisory ways:
received. This rule also expands the
proposed fee waiver policy to include • It permits an application for a fee
Full costs are determined based upon waiver for the Application for
the best available records of the agency. additional classes of applicants and
petitioners who may apply for a waiver Adjustment of Status from asylees,
Id; see also OMB Circular A–11, section victims of human trafficking (T visas),
31.12 (June 30, 2006) (Fiscal Year (FY) of certain application and petition fees
for certain services. The rationale for victims of violent crime (U visas), and
2008 budget formulation and execution Violence Against Women Act (VAWA)
policy regarding user fees), found at each change is discussed in the section
of the rule that discusses comments on self petitioners, and Special Immigrant—Juveniles.
circulars/a11/current_year/ that issue. The specific changes made
are summarized as follows. • It provides that a ‘‘Special
a11_toc.html. When developing fees for Immigrant—Juvenile’’ will not be
services, USCIS also looks to the Federal A. Application To Register Permanent charged a fee for submitting the Petition
Accounting Standards Advisory Board Residence or Adjust Status for Amerasian, Widow(er), or Special
(FASAB) which defines ‘‘full cost’’ to Immigrant, Form I–360.
include ‘‘direct and indirect costs that In the proposed rule, the proposed fee
of $905 for an Application to Register • It permits an application for fee
contribute to the output, regardless of waiver of the biometric fee.
funding sources.’’ Federal Accounting Permanent Residence or Adjust Status,
Form I–485, was based on USCIS’ These three changes represent a
Standards Advisory Board, Statement of significant expansion of the fee waiver
Financial Accounting Standards No. 4: projected overall cost of processing the
average application, regardless of the policy from what was proposed and will
Managerial Cost Accounting Concepts ensure that many applicants or
and Standards for the Federal applicant’s age. Under the final rule, the
standard fee for filing a Form I–485 by petitioners, who may have faced
Government 36 (July 31, 1995). To financial hardship as a result of these
obtain full cost, FASAB identifies an individual will be $930; the fee for
a child under the age of fourteen years fees, may now have that hardship
various classifications of costs to be alleviated. Section III.E. below discusses
included, and recommends various will be $600 when submitted
concurrently for adjudication with the these changes and the comments
methods of cost assignment. Id. at 33– received in this area more fully.
42. application of a parent under sections
USCIS entered supporting fee review 201(b)(A)(i), 203(a)(2)(A), or 203(d) of D. Miscellaneous Changes and
documentation for this rulemaking and the INA. The comments received on this Corrections
its methodology, including budget issue and the rationale for making this
The final rule makes a few clarifying
methodology analyses and regulatory change are discussed in section III.D.2
changes to the regulatory text in the
flexibility analyses, into the public below.
proposed rule. First, as a result of a
docket. See, B. Intercountry Adoptions comment, USCIS found that the fee
docket number USCIS–2006–0044. A schedule contained a form that was no
more detailed discussion of USCIS’ fee In the proposed rule, the proposed fee longer being used. As a result,
review can be found in the proposed of $670 for filing an Application for references to the entry for Application
rule for this rulemaking action at 72 FR Advance Processing of Orphan Petition, for Change of Nonimmigrant
4888. Form I–600A, was based on USCIS’ Classification, Form I–506, are removed
projected overall cost of processing the by this rule. Second, the explanation of
II. Final Rule average application. This final rule does the fee for a Motion, Form I–290B, was
This fee rule sets out fees to recover not change that proposed fee, retaining found to be outdated in that the section
the full costs of USCIS operations. it at $670. However, the final rule had not been updated to comport with
Without these fee adjustments, USCIS provides that the first request for changes that had been made to 8 CFR
will not be able to maintain critical extension of the approval of an part 242 and 8 CFR 1003.8. This rule
business functions, properly address Application for Advance Processing of also clarifies that fee to reflect current
fraud and national security issues, or Orphan Petition will be accepted procedures and policies and the
process incoming applications and without a fee if the request is filed in applicability of the Motion fee. Finally,
petitions in a timely manner. The advance of the expiration of the Notice the maximum fee proposed for
revised fee schedule will close existing of Favorable Determination Concerning Application to Adjust Status from
funding gaps and allow USCIS to take Application for Advance Processing of Temporary to Permanent Resident
specific and demonstrable steps to Orphan Petition, Form I–171H, and no (Under Section 245A of Public Law 99–
strengthen the security and integrity of Petition to Classify Orphan as 603),1 Form I–698, and Application for
cprice-sewell on PRODPC61 with RULES

the immigration system, improve Immediate Relative, Form I–600, has

Status as a Temporary Resident under
customer service, and modernize been filed with USCIS for adjudication.
Section 245A of the Immigration and
business operations. The fee revenue This no charge extension is limited to
generated by the revised fee schedule only one occasion. A complete 1 Immigration Reform and Control Act of 1986,
will support increased security and application and fee must be submitted Public Law 99–603, tit. II, sec. 201, 100 Stat. 3359,
fundamentally transform and automate for any subsequent application. 3394 (Nov. 6, 1986).

VerDate Aug<31>2005 15:13 May 29, 2007 Jkt 211001 PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1
29854 Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Rules and Regulations

Nationality Act, Form I–687, to be paid currently under age eighteen from Petition Fee Schedule, the proposed
by a family with children under eligibility. Accordingly, that provision fees, and the final fees established by
eighteen years of age living at home was was obsolete. this rule are summarized in the attached
removed from the final rule. The table.
E. Summary of Final Fees
statutory eligibility requirements for
adjustment of status under Public Law The USCIS Immigration and
99–603 preclude anyone who is Naturalization Benefit Application and

Form No. Description Current fees Final fees

I–90 ................... Application to Replace Permanent Resident Card .................................................. $190 $290 $290
I–102 ................. Application for Replacement/Initial Non-immigrant Arrival-Departure Record (I– 160 320 320
I–129 ................. Petitions for a Nonimmigrant Worker ....................................................................... 190 320 320
I–129F ............... Petition for Alien Fiancé(e) ....................................................................................... 170 455 455
I–130 ................. Petition for Alien Relative ......................................................................................... 190 355 355
I–131 ................. Application for Travel Document .............................................................................. 170 305 305
I–140 ................. Immigrant Petition for Alien Worker ......................................................................... 195 475 475
I–191 ................. Application for Advance Permission to Return to Unrelinquished Domicile ............ 265 545 545
I–192 ................. Application for Advance Permission to Enter As a Nonimmigrant .......................... 265 545 545
I–193 ................. Application for Waiver of Passport and/or Visa ....................................................... 265 545 545
I–212 ................. Application for Permission to Reapply for Admission into the United States After 265 545 545
Deportation or Removal.
I–360 ................. Petition for Amerasian, Widow(er), or Special Immigrant ........................................ 190 375 375
I–485 ................. Application to Register Permanent Residence or Adjust Status ............................. 325 905 930
I–526 ................. Immigrant Petition by Alien Entrepreneur ................................................................ 480 1,435 1,435
I–539 ................. Application to Extend/Change Nonimmigrant Status ............................................... 200 300 300
I–600/I–600A ..... Petition to Classify Orphan as an Immediate Relative/Application for Advance 545 670 670
Processing or Orphan Petition.
I–601 ................. Application for Waiver of Grounds of Inadmissibility ............................................... 265 545 545
I–612 ................. Application for Waiver of the Foreign Residence Requirement .............................. 265 545 545
I–687 ................. For Filing Application for Status as a Temporary Resident ..................................... 255 710 710
I–690 ................. Application for Waiver of Excludability ..................................................................... 95 185 185
I–694 ................. Notice of Appeal of Decision .................................................................................... 110 545 545
I–695 ................. Application for Replacement Employment Authorization or Temporary Residence 65 130 130
I–698 ................. Application to Adjust Status from Temporary to Permanent Resident .................... 180 1,370 1,370
I–751 ................. Petition to Remove Conditions on Residence ......................................................... 205 465 465
I–765 ................. Application for Employment Authorization ............................................................... 180 340 340
I–817 ................. Application for Family Unity Benefits ....................................................................... 200 440 440
I–824 ................. Application for Action on an Approved Application or Petition ................................ 200 340 340
I–829 ................. Petition by Entrepreneur to Remove Conditions on Residence .............................. 475 2,850 2,850
I–881 ................. NACARA—Suspension of Deportation or Application for Special Rule Cancella- 285 285 285
tion of Removal.
I–914 ................. Application for T Nonimmigrant Status .................................................................... 270 0 0
N–300 ............... Application to File Declaration of Intention .............................................................. 120 235 235
N–336 ............... Request for Hearing on a Decision in Naturalization Procedures ........................... 265 605 605
N–400 ............... Application for Naturalization ................................................................................... 330 595 595
N–470 ............... Application to Preserve Residence for Naturalization Purposes ............................. 155 305 305
N–565 ............... Application for Replacement of Naturalization Citizenship Document .................... 220 380 380
N–600 ............... Application for Certification of Citizenship ............................................................... 255 460 460
N–600K ............. Application for Citizenship and Issuance of Certificate under Section 322 ............. 255 460 460
Biometric Services .................................................................................................... 70 80 80

III. Public Comments on the Proposed advocacy groups, State and local and the proposed fee schedule; some
Rule governmental entities, educational and suggested alternative methods and
other not for profit institutions, labor funding sources.
USCIS provided a 60-day comment
organizations, corporations, and USCIS also invited the public to
period in the proposed rule and
individuals. Many comments addressed access the commercial software utilized
received more than 3,900 comments.2
USCIS received comments from a broad multiple issues. USCIS received in executing the budget methodology
spectrum of individuals and hundreds of comments through many and developing the proposed rule to
organizations, including refugee and distinct form letters and mass mailings facilitate public understanding of the fee
immigrant service and advocacy that were identical or nearly identical in modeling process explained in the
organizations, public policy and content. Many comments provided supporting documentation. 72 FR 4889.
variations on the same substantive USCIS received no requests for such
cprice-sewell on PRODPC61 with RULES

2 All comments may be reviewed at the Federal issues. access to the modeling program.
Docket Management System (FDMS) at The comments ranged from strongly On February 14, 2007, the House, docket number USCIS–2006–
0044. The public may also review the docket upon
supportive of the increased fees to Committee on the Judiciary,
request by contacting USCIS through the contact strongly critical. Many comments Subcommittee on Immigration,
information listed in this rule. [0] provided critiques of the methodology Citizenship, Refugees, Border Security,

VerDate Aug<31>2005 15:13 May 29, 2007 Jkt 211001 PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1
Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Rules and Regulations 29855

and Immigration Law heard testimony A. General Comments naturalization relative to the cost.
from the USCIS Director on the fee Numerous comments supported the Others noted that most people must be
proposal during the public comment rule, although many of those were permanent residents for five years
period. USCIS has included an qualified by expectations that the fee before they can apply for United States
unofficial transcript of that hearing in increase will result in better service. citizenship and the proposed fee
the docket. See, Proposal to Adjust the requires saving less than $10 per month
Many of these comments emphasized
Immigration Benefit Application and toward that goal. Other examples were
that the costly delays in case processing
Petition Fee Schedule, 110th Congress, also cited, including the fact that the fee
are far more expensive to applicants and
1st Sess. (Feb. 14, 2007). for a petition for a relative, fiancé, or
petitioners than the cost of the discrete
USCIS leadership met with orphan is a very small part of the total
filing fee. Others emphasized that filing
stakeholders and conducted ‘‘question cost of bringing that person to the
fees are often a small portion of the total
and answer’’ sessions during the public United States.
cost incurred by an individual or family The filing fees proposed and
comment period at various cities immigrating to the United States.
throughout the United States, including: established under this rule are
In addition, many comments significantly higher than applicants and
Washington, DC.; Los Angeles, criticized the level of fees and the petitioners pay today. These fees,
California; New York, New York; amount of the fee increase. A significant however, are based only on the costs
Chicago, Illinois; Detroit, Michigan; number of comments criticized the associated with adjudicating
Boston, Massachusetts; San Francisco, proposed fee schedule, suggested that applications.
California; San Jose, California; Dallas, the fee increase would impede Several comments suggested that the
Texas; Phoenix, Arizona; and Denver, immigration, or argued that specific fees fee increases were overdue and should
Colorado. Participants were encouraged should not be increased at all or not by have been implemented long ago. These
to submit written comments on the rule. the amount proposed. Many commenters agreed with the proposed
USCIS considered the comments commenters disagreed with the budget rule that the fee increases were
received, the congressional hearing decision to fund USCIS entirely from necessary to increase the effectiveness
transcript, the content of the public fees and argued that USCIS should seek of USCIS services. They recommended
meetings, and all other materials an appropriation from Congress. quick implementation of this rule so
contained in the docket in preparing B. Relative Amount of Fees USCIS could begin making the planned
this final rule. Throughout the comment improvements to its operations as soon
period, USCIS conducted a ‘‘rolling’’ A significant number of commenters as possible. As stated in the proposed
review process. Comments were argued that the proposed fees were too rule, the current fee schedule does not
reviewed as soon as practical after low. Some expressed general concerns generate enough revenue for USCIS to
receipt and re-reviewed in light of about immigration levels. Others argued even process the current volumes of
subsequent comments. The review that fees should be high enough to cover applications and petitions in a timely
process was very resource intensive and all immigration related costs, not simply manner. As the Director of USCIS stated
it permitted USCIS to develop a application and petition processing and in his testimony before Congress on
continuous understanding of the issues related USCIS costs, so taxpayers are not February 14, 2007, USCIS intends to
presented and maturation of asked to pay for someone entering, implement this fee increase in the
consideration of the issues most residing, or seeking services in the summer of 2007 so that it can begin its
commonly presented. United States. efforts to reduce average application
A number of comments were not 1. Recovery of Additional Costs and processing times. This plan was also
relevant to the substance of the Enhancements stated in the USCIS press release of
proposed rule and criticized the rule for January 31, 2007. USCIS plans to begin
Many comments suggested that even collecting these new fees in order to
not addressing other immigration law
greater increases could be used to begin fully recovering its costs and
issues. Many commenters suggested
further improve customer service, obtaining the resources necessary to
changes in the substantive regulations
stating that this result would reduce the timely process applications. Thus, the
implementing the immigration laws by
perceived need for an individual to seek commenters’ suggestions are being
USCIS, United States Customs and
the assistance of an attorney to recognized, but they are in line with
Border Protection (CBP), United States
understand and navigate the original plans of USCIS.
Immigration and Customs Enforcement
immigration benefits application and Specific comments suggested that the
(ICE), and other agencies. These
petition process. Other comments application fee for a Petition for a
comments are beyond the scope of this
suggested that fees should not be based Nonimmigrant Worker, Form I–129
on USCIS’ costs of administration, but (Nonimmigrant Worker Petition), which
The final rule does not address on the value of the benefit received by is filed by businesses seeking to allow
comments seeking changes in United the applicant (e.g., United States aliens to work in the United States,
States statutes, changes in regulations or citizenship). Additionally, some should be increased. According to these
applications and petitions unrelated to comments pointed out that many aliens comments, higher fees should offset or
or not addressed by the proposed rule, make large payments to those who help alleviate the stress that these workers
changes in procedures of other them enter the United States illegally, placed on the infrastructure of the
components within the Department of suggesting that this demonstrated the United States, increased demand for
Homeland Security (DHS) or other willingness to pay more to enter and governmental services, impact on the
agencies, or the resolution of any other remain in this country legally or American labor market, reduced
issues not within the scope of the
cprice-sewell on PRODPC61 with RULES

illegally. opportunities for citizens, and lowered

rulemaking or the authority of DHS. Some comments supporting the salaries for American workers.
The public may also review any item proposed fees, or even higher increases, Similarly, some comments suggested
in the docket upon request by asserted that the fee increases are not that a portion of fees should reimburse
contacting USCIS through the contact significant when viewed in a broader States for providing job training
information listed in this rule. context. Some cited the value of programs.

VerDate Aug<31>2005 15:13 May 29, 2007 Jkt 211001 PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1
29856 Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Rules and Regulations

Although a number of comments process and United States immigration context of the overall USCIS budget, to
suggested that USCIS increase fees laws in good faith, and that higher fees adversely affect services.
further it is important to note that the may discourage legal immigration while
3. Improve Service, Reduce
purpose of filing fees is to only recover encouraging aliens to attempt to enter
the costs associated with providing a the United States and work illegally.
benefit or service. Filing fees are not These comments reflect another specific a. Service improvement and fees.
designed to function like tariffs and position on the larger issues of Many comments noted lengthy
generate general revenue to support immigration law and policy that aliens waiting times to process immigration
broader policy decisions, or like fines to should be induced to immigrate to the benefit applications and petitions and
deter certain behaviors. The filing fees United States. As noted above in highlighted the need to improve overall
are not intended to influence public relation to the opposite position, the customer service. These comments
policy in favor of or in opposition to purpose of the fee schedule is not to suggested that, regardless of whether the
immigration, limit immigration, support establish policy, but to recover the costs proposed fees were justified, applicants
broader infrastructure, or impact costs necessary to operate USCIS. and petitioners should not be asked to
beyond USCIS. Accordingly, the final rule does not pay the full fee increase until USCIS
Other comments suggested that adjust the fee schedule in response to improves service. Others suggested that
increasing specific fees, such as for an these comments. even if fees were increased before
Application to Extend/Change A portion of these comments argued service level improvements were made,
Nonimmigrant Status, Form I–539, that the fee increases would result in a there should be detailed commitments
would serve as a deterrent to decrease in applications and petitions. to service level improvements to ensure
reinstatement applications and, instead, Contrary to the opinions expressed, that increased revenues are used to
cause more aliens to remain in the USCIS records do not reflect any improve service.
United States longer than their period of empirical evidence suggesting a long- Some comments stated that USCIS
authorized stay. term reduction in the demand for has increased fees before with the
USCIS considered these suggestions immigration benefits resulting from fee promise of enhanced services, but never
and others and in some cases, discussed increases. While fees at an extremely fully delivered on that promise. Other
further in this rule, made changes in high level could be a factor in whether comments indicated that the proposed
response to public comments. These or not someone files an application with rule does not outline an overall strategic
changes though continue to follow the USCIS, neither past fee increases nor the plan for improvements, with measurable
President’s FY 2007 Budget which incremental increases in this rule begin benchmarks and tangible goals for
called for USCIS to reform its fee to approach the level necessary to have implementing the needed upgrades, or a
structure, and the GAO any significant impact on the demand specific timeline or completion
recommendation that USCIS ‘‘perform a for USCIS benefits. USCIS schedule to assure interested parties
comprehensive fee review to determine acknowledges that short-term increases that these improvements will actually
the costs to process new immigration in applications and petitions occur after be accomplished. One commenter
applications.’’ This rule is designed to a fee increase has been announced, complained that customer service and
establish fees sufficient to reimburse the followed by short-term decreases in processing backlogs have not improved
full, necessary, ongoing, and projected demand immediately after the fee enough to justify such a steep fee
costs of processing immigration benefit increases become effective. This increase.
applications and petitions and the fluctuation is a normal result of an These comments illustrate the main
related operating costs of USCIS. increase in the cost of any service, distinction between the revised fee
While USCIS has authority to collect whether governmental or private. schedule and current one in that the
fees for certain broader costs of Generally, applicants and petitioners current fee schedule does not reflect the
administering the United States’ with the ability to file do so before fees existing costs of performance. The
immigration system, it has chosen to increase. Individuals logically choose to current fee schedule does no more than
structure the fees to only recover the full pay a lower price for a service if and sustain USCIS operations and provide
cost of operating USCIS. USCIS believes when available. However, USCIS for delivery of benefits at an
that this decision is the most consistent records indicate that demand returns to unacceptable level. Historically, USCIS
with broader Administration policy on normal shortly after the effective date of balanced resource requirements to
user fees and the intent of Congress in a fee increase. When the Immigration allocate insufficient revenues from a fee
the enactment of, and amendments to, and Naturalization Service (INS) structure that did not recover full costs.
section 286(m) of the Immigration and conducted the last comprehensive fee The new fee structure is designed to
Nationality Act (INA), 8 U.S.C. 1356(m). review in FY 1998 and fees increased, maintain sufficient capacity to meet
Accordingly, USCIS has not changed on an average percentage basis, more appropriate performance standards and
fees based on these comments. than they increase in this rule, the goals, while sustaining performance
demand for immigration benefits through investments to deliver
2. Proposed Fees Are Unreasonably continuous improvements into the
remained fairly constant shortly
High foreseeable future. USCIS acknowledges
thereafter. In any case, USCIS fees are
The largest number of comments generally believed to be only a portion the commenters’ concerns, and believes
opposed the proposed fee increases in of the total expenses incurred by a that these concerns will be satisfied, at
general terms or highlighted particular typical applicant. least in part, after implementation of the
applications and petitions and argued These comments infer that these new fee structure.
that the proposed fee increases would temporary fluctuations undercut the USCIS is required by law to review its
cprice-sewell on PRODPC61 with RULES

effectively exclude aliens generally, or stability of the funding stream to be fees at least once every two years. 31
groups of aliens, from immigration generated by the proposed fees. USCIS U.S.C. 902(a)(8). USCIS has established
benefits and services. Some suggested acknowledges that slight fluctuations a dedicated staff in its Office of
that fee increases send the wrong will occur and will be reflected in the Planning, Budget, and Finance to
message to people who are attempting to funding stream, but these fluctuations conduct future comprehensive analyses.
comply with the immigration benefit are not significant enough, in the USCIS is firmly committed to seeking

VerDate Aug<31>2005 15:13 May 29, 2007 Jkt 211001 PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1
Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Rules and Regulations 29857

improved ways of doing business and new fee schedule, USCIS will be able to Many commenters pointed to the fact
reengineering processes in order to deliver significant additional that applicants or petitioners must
contain costs. The new fee structure will improvements. Until USCIS aligns its provide biometric data more than once.
enable USCIS to make improvements fees with costs, however, it will be Some commenters considered the
that may ultimately help avoid future unable to afford sufficient capacity to expiration of fingerprints submissions to
increases and possibly reduce costs. process incoming applications and be inefficient. Others suggested that it
Process improvements implemented petitions, resulting in backlogs. was inefficient for USCIS to again
over the past several years, as well as b. Inefficiency in business-related request fingerprints when they apply for
projected productivity increases, are visas. sequential benefit applications. USCIS
taken into account in the current fee Some comments highlighted agrees that an applicant should not be
review, keeping fees lower than they particular inefficiencies and suggested required to provide biometric data
might otherwise have been. Future that correcting these would mitigate the multiple times for a single application.
productivity enhancements will need for fee increases. An example of USCIS is developing the Biometrics
produce lower costs per unit that will be inefficiency mentioned by many Storage System (BSS) which will allow
reflected in future price adjustments. commenters was the long processing the re-use of fingerprints and, if an
The fees are based on the costs delays for employment-based visa application or petition has not been
necessary to sustain the processing of categories, including the immigrant adjudicated within the fifteen month
applications and petitions. If fees employment-based classifications and validity period, USCIS will be able to
collected remain below processing the nonimmigrant classifications such simply re-submit the stored fingerprints
costs, the imbalance will, as it has in the as the temporary employee H to the FBI, without any involvement of
past, result in a backlog. Backlogs mean nonimmigrant visa, and the intra- the applicant or petitioner. See 72 FR
customers will not receive the benefits company transferees L nonimmigrant 17172 (Apr. 6, 2007) (establishing a new
and services for which they have visa. system of records). Also, as a matter of
applied in a timely manner. A structural USCIS acknowledges that it does not policy, when an application remains
deficit between costs and fees will also always quickly and efficiently process pending, USCIS does not charge the
mean USCIS cannot effectively sustain the Immigrant Petition for Alien
applicant the biometric fee again
operations because of insufficient Worker, Form I–140 (Alien Employee
because of a processing delay at USCIS.
capital to invest in improvements. Over Petition) for firms requesting USCIS
approval to hire a foreign worker. In the revised fee structure, the
time, a structural deficit between costs biometric fee is not simply a fee for
and fees will create and accelerate the Processing delays result from a number
of factors that are beyond the control of biometric collection or the USCIS cost
growth of backlogs and deteriorate of the applicant or petitioner appearing
service levels. Delays caused by the USCIS, including extensive Federal
Bureau of Investigation (FBI) name at an Application Support Center. The
inability to meet demand resulting from
checks and retrogression of petition biometric fee also covers costs
fees set below cost often have far more
priority dates caused by over- associated with the use of the collected
impact on the person than the discrete
subscription of the applicable visa biometrics for FBI and other background
application or petition fee.
The proposed fee adjustments and categories. The solutions suggested by checks. Thus, an applicant will pay the
this final rule reflect these concerns. one commenter, however, such as biometric fee whenever he or she files
Over the past several years, USCIS mandatory processing times, automatic another application that requires the
received appropriated funds to reduce fee refunds, or automatic approval, collection, updating, or use of
processing times and meet the would neither improve efficiency nor biometrics for background checks. At
President’s goal of a six-month or less result in shorter processing time. The that point, USCIS can verify the identity
processing time for nearly all suggestion that delays result in refunds of the applicant by comparing the newly
immigration benefit applications and would merely cause more delays. collected biometrics with those
petitions. By the end of FY 2006, the Employers may use the premium previously submitted, providing an
application and petition backlog had processing service, if applicable, to important security enhancement. USCIS
fallen from a high of 3.8 million cases obtain faster processing of certain believes that this new process may
in January 2004 to less than 10,000 employment-based petitions and result in some decreases in costs which
considered under USCIS control. The applications, a process that may may offset the costs of background
total volume of pending cases is alleviate the commenters’ concerns. checks incorporated into the biometric
currently less than the backlog was at its The national interest is not served and fee, and has already factored this impact
height, which shows real and immigration laws are not complied with into the fee structure along with
substantial progress. by automatically approving immigration projected efficiency increases.
USCIS has also made many customer benefits for persons solely as a result of d. Petitions for aliens of extraordinary
service improvements, including, but the passage of time. Each applicant or ability or performers.
not limited to, expanding online petitioner must prove his or her USCIS received many comments
capabilities (such as online filing, eligibility for the benefit sought. While requesting improved efficiency in the
change of address and case status a backlog still exists, USCIS has processing of visa petitions for aliens of
updates), INFOPASS appointments achieved an average processing time for extraordinary ability in science, art,
(providing the ability to go online to an Alien Employee Petition as of education, business, or athletics, and
make, cancel, or reschedule January 2007 of less than 135 days per their spouses and/or children (the O
appointments with a USCIS case, which represents fifteen days visa category), or aliens coming to the
Immigration Information Officer), and faster than five years ago, but with a United States temporarily to perform at
cprice-sewell on PRODPC61 with RULES

introducing a broad range of fact sheets much higher current monthly volume. a specific athletic competition or as a
to help the public understand various With the additional USCIS resources member of a foreign-based
benefits, eligibility criteria, and USCIS from this updated fee schedule, entertainment group (the P visa
procedures. These improvements were performance will be enhanced even category). Many O and P petitions are
made prior to the proposed fee increase. further. submitted on relatively short schedules,
With the revenue generated from the c. Multiple biometric data requests. i.e. the individual/group is scheduled to

VerDate Aug<31>2005 15:13 May 29, 2007 Jkt 211001 PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1
29858 Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Rules and Regulations

visit the United States in the near future would instead promote efficiency and The premium processing fee ($1,000)
for a specific event. integrity, and enhance security. is statutorily authorized for employment
These commenters stated that lengthy USCIS is committed to a process that based applications and petitions. USCIS
and uncertain O and P visa processing handles cases efficiently and effectively, cannot expand the premium processing
periods complicated booking foreign meeting all quality requirements in a fee or the applications and petitions
artists for performances and requested way that protects the national security available for premium processing
the implementation of a thirty-day and public safety of the United States. beyond the statutory limitations.
maximum processing period. This issue USCIS cannot, however, agree with this USCIS plans to transform the current
is not germane to this rule; however, recommendation at this time. The paper based process into an electronic
because of the volume of comments suggestion for ‘‘up-front processing’’ is adjudicative process. This
received, a brief response is provided. very similar to a process that came to be transformation will allow USCIS to
The USCIS receipt notice received by known as ‘‘front-desking’’—a procedure better detect and deter those who seek
an O and P petitioner after filing states followed by the INS in which to do harm or violate the laws of the
that the petition will be processed in employees were instructed to review United States, while facilitating benefits
30–120 days, but that time is a certain applications in the presence of processing for eligible, low-risk persons.
standardized estimate for all O and P the applicant to correct facial USCIS acknowledges that the
petitions for many types of performers deficiencies, incomplete responses or transition from a paper-based to an
and organizations. Still, USCIS does errors before accepting the application electronic adjudication system carries
everything in its control to adjudicate for filing, and not to accept those with it certain burdens, but believes the
these petitions within 60 days. In spite applications thought to be statutorily benefits of the new process will
of this fact, cases may be delayed by a deficient. Front-desking effectively significantly outweigh those costs. The
number of causes that are beyond USCIS precluded administrative and judicial new adjudicative process will enable
control, most commonly a lack of review of rejected applications because USCIS to enhance national security,
response to USCIS inquiries by the there was no formal denial to appeal— improve customer service, and increase
sponsoring organization, labor unions only a return of an uncorrectable efficiency by increasing its ability to
and other representatives, and the document. Reno v. Catholic Social share data with immigration partners,
prospective visa recipient. For planning Services, 509 U.S. 43, 61–63 (1993).
improving security by uniquely
purposes, current estimates of various identifying individuals, improving
Legitimation of the concept of up-front
visa classification processing times and system integrity by creating customer
processing would require a fundamental
processing dates are posted on the accounts, and providing a single
change in the regulations administered
USCIS website. worldwide case management system.
USCIS recently published a final rule by USCIS and goes well beyond the
Nonetheless, as some commenters
to permit petitioners to file O and P scope of this rulemaking. USCIS will
pointed out, not all applicants will have
nonimmigrant petitions up to one year not adopt this proposal as a part of this
access to the Internet or other electronic
prior to the need for the alien’s services. rulemaking.
means of submission. For those
72 FR 18856 (April 17, 2007). Although f. Transformation project and individuals, paper submissions will
that rule will not resolve all of the premium processing. remain an option.
commenters’ concerns, the longer filing Some comments requested more g. Actions planned to improve
window will better assure O and P information on transformation plans efficiency.
petitioners that they will receive a and how premium processing revenues USCIS believes that, while
decision on their petitions in a will be spent. Others suggested that sustainability of its operations focused
timeframe that will allow them to secure premium processing be expanded. on continuous improvement is
the services of the O or P nonimmigrant Another commenter suggested that important, so is real and substantive
when such services are needed. USCIS transformation from a paper to near-term improvement. USCIS
suggests, however, that the nature of the electronic process would create structured the revised fee schedule to
O and P visa classifications creates a excessive costs and burdens that would allow it to commit to specific
need to carefully plan performances and create financial and paperwork barriers substantial improvements over the next
book foreign entertainment acts. Fees to citizenship. two years.
collected after publication of this rule As required by statute, premium USCIS is committed to substantial
will be used to cover USCIS costs and processing revenues are deposited in the reductions in processing times by the
will assist in more reliable and IEFA and will be fully isolated from end of FY 2008 for four key
consistent adjudication of all other revenues and devoted to the extra applications: (1) Application to Renew
applications and petitions, including O services provided to premium or Replace a Permanent Resident Card,
and P visa petitions. processing customers, and to broader Form I–90 (Application for LPR Card);
e. Pre-screening applications and investments in a new technology and (2) Application to Register Permanent
petitions for lawful permanent business process platform to radically Residence or Adjust Status, Form I–485
residence. improve USCIS capabilities and service (Adjustment of Status Application); (3)
One commenter supported the levels. INA Section 286(u), 8 U.S.C. Immigrant Petition for Alien Worker,
recommendation of the USCIS 1356(u). USCIS has recognized that its Form I–140 (Alien Employee Petition),
Ombudsman to require a comprehensive existing technology has not kept pace the petition for an employer to sponsor
prescreening of Applications to Register with changing demands and additional a foreign worker for permanent
Permanent Residence or Adjust Status, requirements placed upon USCIS. Since residence based on its job offer; and (4)
Form I–485, prior to filing. Citizenship the previous fee structure was Application for Naturalization, Form N–
cprice-sewell on PRODPC61 with RULES

and Immigration Services Ombudsman, retrospective and did not include funds 400 (Naturalization Application), the
Annual Report to Congress, 50–55 (June for real investments to sustain and petition to become a United States
29, 2006) (Recommendation 27). improve USCIS infrastructure, business Citizen through naturalization. These
Recognizing that adoption of a choices have been limited to those that four applications and petitions
prescreening process would reduce can be supported by existing technology represent almost one-third of the USCIS
revenues, the commenter posited that it or no technology. total workload. By the end of FY 2008,

VerDate Aug<31>2005 15:13 May 29, 2007 Jkt 211001 PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1
Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Rules and Regulations 29859

USCIS plans to reduce processing times 4. Increases Relative to Time congressional mandates, improve
for each of these cases by two months, Some comments suggested that some efficiency, detect fraud, secure the
from six months to four months fees were excessive for certain immigration system, and to consolidate
(naturalization processing will be applications and petitions relative to the elements such as federal salary
reduced from seven months to five time it takes to process the application increases into base costs. The real GDP
months when the ceremony at which a or petition. As mentioned above and in or ‘‘real gross domestic product,’’ on the
person takes the oath of allegiance is the proposed rule, the primary basis of other hand, is an estimate of the output
included as part of the process). Thus, the USCIS fee model is the of goods and services produced by labor
applicants and petitioners will see a administrative complexity, which is the and property located in the United
significant improvement in the first full amount of time that it takes to process
States by the United States Department
fiscal year following these fee of Commerce Bureau of Economic
a particular kind of application or
adjustments. Further, as also indicated Analysis. GDP bears no relation to the
petition (identified as ‘‘Make
in the proposed rule, USCIS is cost models that must generate the fees
Determination’’ activity in the proposed
committed to a twenty-percent average to be charged by USCIS.
rule). The calculation also factors in Many commenters stated that the
reduction in case processing times by
other direct costs, such as the cost of increase in the fee for the Application
the end of FY 2009, which will extend
manufacturing and delivering a for Replacement Naturalization/
improvements in processing times and
document when that is part of the Citizenship Document, Form N–565,
service delivery across the spectrum of
processing of a particular benefit. from $220 to $380, was unreasonable
applications and petitions.
The proposed fee structure commits In addition to these costs, the fee when compared with replacement of
USCIS to real improvements as it is not calculation model factors in the full other documentation. Most of these
built simply on today’s productivity costs of USCIS operations, including commenters compared the fee for
rates, but on anticipated increases in services provided to other applicants replacing a citizenship certificate with
productivity (four percent for the and petitioners at no charge, overhead replacing a Social Security card, which
Adjustment of Status Application, and costs (e.g., office rent, equipment, and the Social Security Administration
two percent for all other products). supplies) associated with the provides for free, or replacing state
USCIS is accountable for these adjudication of the application or documents (e.g. driver’s licenses) that
productivity increases in order for fees petition, and other processing costs. many states provide for a nominal
to support operations as intended. These latter costs include responding to charge.
Another commenter suggested that inquiries from the public (‘‘Inform the Replacement of a social security card,
hiring more permanent employees Public’’ activity), application and driver’s license, voter registration card,
would improve USCIS efficiency. USCIS petition data capture and fee receipting or passport is substantially different
agrees with the commenter that (‘‘Intake’’ activity), conducting from replacement of a certificate of
sufficient staffing is directly related to background checks (‘‘Conduct citizenship. USCIS incurs substantial
the ability to collect sufficient fees for Interagency Border Inspection System costs in determining the validity of the
service as explained in the proposed Checks’’ activity), the acquisition and naturalization for which the certificate
rule and this final rule. As presented in creation of files (‘‘Review Records’’ was issued before it can issue a new
the President’s FY 2008 Budget, USCIS activity), preventing and detecting fraud certificate. As stated in the proposed
plans to add 1,004 Adjudication Officers (‘‘Fraud Prevention and Detection’’ rule and above, this fee schedule is
and support staff. However, twenty activity), and, when applicable, based on the relative complexity of
percent of the new staff will be other producing and distributing secure cards adjudication of a benefit application and
than permanent employees. Most of that (‘‘Issue Document’’ activity) and reflects the average relative cost of
staff will handle application and electronically capturing applicants’ adjudication of all such applications.
petition volume surges, a critical fingerprints, photographs, and The fees charged for replacing secure
resource to ensure that the backlog does signatures (‘‘Capture Biometrics’’ documents reflect the full costs incurred
not increase due to sudden and activity). In total, all application and by USCIS in replacing those documents.
unpredictable workload increases. petition fees include a total of $72 in Regardless of the type of change
However, the comment suggests no ‘‘surcharges’’ to recover asylum and requested, USCIS must obtain the
regulatory changes. Thus, no changes refugee costs, and fee waiver and original records and issue a new
are made to the final rule. exemption costs. certificate after the appropriate review
One commenter questioned how and decisions. Charging $380 for
5. Increases Relative to Other Standards
quickly USCIS will be able to adjudication of Form N–565 for an
implement all of the resources outlined Many commenters suggested that the infant may recover more fees than that
in the additional resource requirements. fee average or weighted average fee specific adjudication may require,
The commenter also questioned increases were out of line with, for however, $380 fails to recover the
whether USCIS took into consideration example, the Social Security resources expended to determine the
ongoing expenses versus one-time Administration’s (SSA) 2007 basic cost validity of the more complicated
expenses. USCIS has factored into the of living increase, the increase in the applications such as in the case of an
fee schedule the appropriate start up Gross Domestic Product (GDP), or the adult who requires significant
costs. USCIS did differentiate one-time federal General Schedule salary background investigation. Therefore, the
costs versus recurring costs in its fee increase. USCIS appreciates the Form N–565 fee was not adjusted from
calculations. For example, one-time concerns expressed, but these external what was proposed.
costs such as background investigations indicators of costs are not comparable Other comments stated that some fees
cprice-sewell on PRODPC61 with RULES

and computer equipment for new hires with USCIS’ costs. For example, SSA’s should reflect validity periods with
were included in the FY 2008 costs, but basic cost of living increase is a benefit lower fees for benefits with shorter
not in the FY 2009 costs. These increase tied to inflation, whereas the validity periods. This argument is
calculations are accurately identified in USCIS fees recover all of the costs of similar to that advanced by many who
the fee review supporting operating USCIS, including advocated higher fees—that the fees
documentation. enhancements required to meet should not be based just on costs, but

VerDate Aug<31>2005 15:13 May 29, 2007 Jkt 211001 PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1
29860 Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Rules and Regulations

on the real or perceived value of the reorganizing USCIS in accordance with out, however, that section 286(m) does
benefit. USCIS’ methodology is based on the recommendations of the USCIS not mandate full cost recovery, and that
the complexity of the adjudication, not Ombudsman. USCIS has recently USCIS still has the option of seeking
the validity period. USCIS establishes reorganized its functions and expects appropriations and choosing to recover
maximum allowable time periods that this reorganization to provide greater less than full cost through user fees.
may pass between its approval of a efficiency once it has gained traction. Some commenters urged support for
benefit and the applicant’s receipt of the See 71 FR 67623. Those expectations specific legislation that would alter the
benefit based on the type of case and were incorporated into the proposed fee development process or affect this
how passage of time influences the need rule and this final rule. specific fee review process.
for updates in the information used to Finally, one commenter suggested
C. Alternative Sources of Funding that USCIS use appropriated funds to
make the determination. The approval
validity period is not designed to Many comments did not dispute the fund unusual or atypical expenses from
generate revenue through unnecessary methodology and costs, but asserted that its fee calculation. The commenter
repeat filings. USCIS believes that the applicants and petitioners simply suggested that these infrastructure costs
current methodology is fair and should not be required to bear the represent an ‘‘investment’’ that should
complies with Federal fee guidelines. burden of these fee increases. Many not be funded by current immigration
Decreasing the fee for applications for pointed to the benefits of immigration and naturalization applicants and must
benefits with shorter validity would and assimilation and argued that not be included in the fee calculation.
only shift costs to other immigration because the United States benefits as a These comments go beyond the scope
benefit applications and petitions based whole from immigration, as a matter of of the regulation and raise questions of
on considerations that are not public policy immigrants should not whether Congress should alter the
applicable. The comment will not be bear the entire cost of processing. Many immigration laws of the United States or
adopted. asserted that USCIS should find ways to appropriate general funds for USCIS. In
keep fees down, even if it means effect, these comments suggest that
6. Grandfathering operating at a deficit. Others suggested USCIS should take other actions outside
Some comments recommended substituting appropriated monies for the rulemaking and the authorization for
phasing in the fee increase over a period user fees to offset particular fees or this rulemaking under INA section
of years, or fixing fees at current levels activities or subsidize general USCIS 286(m), 8 U.S.C. 1356(m).
for those who already applied for one or operations. Law and policy have long supported
more immigration benefits in the past, the proposition that the costs of
1. Appropriated Funds
effectively grandfathering fees for those providing immigration benefits should
who are already in the USCIS system. Many comments recommended that be borne by those applying for those
Deferring fee increases would directly USCIS seek appropriated funds to close benefits. Thus, in this final rule, USCIS
result in service delays. In addition, funding gaps, meaning that taxpayers is adopting a fee schedule to recover its
setting fees lower for any class of should subsidize particular applications costs through user fees. While it is true
applicants or petitioners would merely and petitions, certain processes, that Congress has enacted intermittent
transfer costs to other applicants. Thus, activities not directly related to the appropriations to subsidize the
USCIS has not incorporated these adjudication of the particular kind of operations of USCIS, the President’s
recommendations. application or petition, or fees in budget for FY 2008 does not request
general. Some highlighted the public such an appropriated subsidy, except
7. Budget Decisions Necessary To good and positive impact resulting from specific funds for expansion of an
Administer Immigration Benefits immigration, naturalization, or certain Employment Eligibility Verification
Many comments highlighted a critical procedures (i.e., background checks) program. Even if an appropriation were
aspect of the fee structure—operations and argued that the public good merited to be requested, receipt of sufficient
must be sustainable. The real cost of the use of tax dollars to offset costs. funds (without adjusting the fee
processing a type of application or Many comments suggested that schedule) to cover the costs of USCIS
petition is more than the discrete cost of appropriations be used to either operations may be doubtful. USCIS
processing a particular individual case subsidize specific benefit application or must fund the services it provides
today. It includes the cost of sustaining petition fees or all fees in general. Some through the legal means at its disposal.
operations and making investments to comments suggested that fees should be Deferring the recovery of full costs
continually improve service delivery the last recourse for funding while USCIS explores other funding
and performance. The proposed fee immigration services; that is, USCIS options will delay service delivery to
structure is designed to meet should be required to have exhausted all applicants and petitioners.
performance standards and make possible means of seeking appropriated
continuous improvements through funds before imposing fee increases. 2. Finding Other Revenue Sources
investments in training to ensure a high One commenter faulted USCIS for not Some comments suggested funding
performance workforce, facilities to engaging Congress to cooperatively USCIS through fines assessed against
provide services that are more work on this issue. Others suggested employers who hire aliens who are not
accessible to our customers, systems to funds be appropriated for discrete authorized to work in the United States.
support operations and performance, purposes to offset the cost of a particular Other comments suggested a variation
and resources to improve quality and activity associated with case processing on the methodology, such as charging
performance management. These goals or overall management of USCIS. employers more than individuals or
are consistent with the principles of Other comments point out that charging additional fees at the time of
cprice-sewell on PRODPC61 with RULES

Office of Management and Budget section 286(m) of the INA, 8 U.S.C. naturalization.
(OMB) Circular A–25. 1356(m), authorizes the recovery of the USCIS is statutorily barred from using
full cost of providing immigration and fines assessed against employers. Unless
8. Reorganization naturalization services, including specified in law, all fines and penalties
Another commenter suggested that services provided without charge to under the immigration laws become
efficiency could be improved by many applicants. These comments point miscellaneous United States Treasury

VerDate Aug<31>2005 15:13 May 29, 2007 Jkt 211001 PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1
Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Rules and Regulations 29861

receipts and are deposited into the Naturalization applicants who are the Adjustment of Status Application
general fund, not the IEFA. INA section initially found eligible must be fee from $325 to $905, or 178 percent.
286(c), 8 U.S.C. 1356(c). Those examined under oath to assure Most of the proposed fee increase for the
additional sources of USCIS revenue compliance with the many requirements Form I–485 was driven by the packaging
that are authorized, such as the DHS for citizenship under the INA including or ‘‘bundling’’ of related benefits with
share of certain supplemental fees competency in English, knowledge and no separate fee. As indicated in the
collected under section 286(v) of the understanding of United States proposed rule, factoring in separate fees,
INA, 8 U.S.C. 1356(v), have been taken Government and history, physical applicants typically pay for additional
into account in USCIS budgeting and fee presence and maintenance of resident services related to the Form I–485 for
setting. status in the United States, and facts which they will no longer pay
USCIS believes that the methodology and conduct reflecting their moral separately. In this rule, after
used to develop these fees—a character and attachment to the United consolidating the fees for the
methodology based on the complexity of States Constitution and law. 8 U.S.C. Adjustment of Status Application and
the specific application or petition—is 1401 et seq. the requests for interim benefits that
the most appropriate process to In adjudicating some naturalization previously required additional fees, the
equitably allocate costs and provide applications, USCIS adjudicators must increase in the fee from $865 to $1,010
long-term stable and reliable funding. resolve complex subsidiary applications (17%), including the biometric fee, is
Part of USCIS’ funding problem has for certain exemptions, such as the significantly below the average increase
been reliance on temporary funding Application to Preserve Residence for for all fees.
sources, including appropriated Naturalization Purposes, Form N–470, A few comments suggested that
funding. This new fee schedule will or the Medical Certification for incorporating the fee for the Application
establish a more stable source of Disability Exceptions, Form N–648 for Employment Authorization, Form I–
funding. As the number of applications (which is processed and adjudicated 765, (Application for EAD) and the fee
and petitions increases, USCIS will be without charge). Further, criminal and for the Application for Travel
better able to respond to increasing national security record checks are Document, Form I–131, (Application for
workload changes and will no longer be required for naturalization applications Travel Document) into the Adjustment
compelled to sacrifice customer service and may require the involvement of of Status Application should only be an
or rely on unreliable funding sources. numerous USCIS personnel. In addition, option. USCIS issues an Employment
the naturalization adjudication process Authorization Document (EAD) to the
D. Comments on Specific Benefit may require multiple interviews, and alien after it approves an Application
Application and Petition Fees solicitation and consideration of for Employment Authorization. An alien
Many comments that suggested that additional evidence bearing on submits an Application for Travel
USCIS seek appropriated funds or other eligibility. Finally, in the event of an Document to apply for a travel
subsidies, or other means to reduce fees adverse decision on the application or document, reentry permit, refugee travel
from the proposed levels, also petition, the applicant is entitled to document, or advance parole. EAD and
emphasized issues and impacts related request a new hearing by a different travel documents are commonly referred
to particular applications and petitions. adjudicator. All of these factors are to as ‘‘interim benefits.’’
The fee development methodology is reflected in the fee charged to recover These commenters suggested that
sensitive to the costs of adjudicating the cost of adjudication. children may not need or desire travel
each type of application or petition Two factors in this final rule mitigate documents or work authorization, so the
based on the complexity of adjudicating the Naturalization Application fee fee for an Adjustment of Status
it. increase. First, the final rule maintains Application should be consequently
the current USCIS policy of permitting reduced for a child or a family. Other
1. Naturalization Application naturalization applicants to request an comments suggested that, like refugees,
The fee for the Naturalization individual fee waiver. In determining asylees should not be required to pay
Application generated a large number of inability to pay, USCIS officers consider the portion of the new Adjustment of
comments from a wide spectrum of all factors, circumstances, and evidence Status Application fee attributable to the
commenters. The proposed rule would supplied by the applicant including age, interim benefits, because eligibility to
raise this fee from $400 to $675, disability, household income, and work is incident to their status. Finally,
including the required biometrics fee, or qualification within the past 180 days several commenters suggested that
a 69 percent increase. Many comments for a federal means tested benefit, as USCIS apply the fee consolidation for
highlighted the public interest in well as other factors associated with the Adjustment of Status Application,
promoting citizenship and each specific case. For those applicants Application for EAD, and Application
recommended reducing this fee. not granted a fee waiver, USCIS will for Travel Document to all currently
USCIS understands the sentiment charge a fee of $595 for processing pending Adjustment of Status
expressed by the commenters that naturalization applications. Applications.
becoming a citizen of the United States Additionally, the cost of fingerprints has USCIS has made no adjustment in this
is an honor to be cherished. USCIS been reduced slightly, resulting in a final rule as a result of these comments.
disagrees with the commenters who decreased overall cost for naturalization USCIS determined that a change in the
suggested that the proposed fee increase applicants. Accordingly, USCIS has fee schedule was not justified because a
is inconsistent with our tradition of determined that the effort and resources type of applicant mentioned by the
welcoming and integrating immigrants expended to process Naturalization commenters may not need or want
and that increasing the fee would send Applications justifies this level of fee interim benefits. Neither does this rule
cprice-sewell on PRODPC61 with RULES

the wrong message to intending citizens. increase. adopt the suggestion to process
The fee for a Naturalization Applications for EADs or Applications
Application is established at $595 in 2. Application To Register Permanent for Travel Documents for currently
this final rule and properly reflects the Residence or Adjust Status pending Adjustment of Status
intensive scrutiny with which a request Many comments emphasized the Applications without fee. USCIS records
for such an honor should be reviewed. overall size of the proposed increase for indicate that most applicants who

VerDate Aug<31>2005 15:13 May 29, 2007 Jkt 211001 PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1
29862 Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Rules and Regulations

initially choose not to apply for an EAD would not result in a significant transfer complexity of processing the benefit for
or travel documents soon do so because of the direct costs for adjudicating a subset of applicants was determined.
they find that they need interim benefits Adjustment of Status Applications for Applying this difference to the fee
almost immediately. As for asylees and entire large families to individuals or model reduces the fee for an Adjustment
refugees, asylees are authorized to work, smaller families. USCIS also weighed of Status Application for a family
but USCIS records indicate that most whether or not to transfer the costs of member under age fourteen from $805
asylees and refugees obtain an EAD to adjudicating Adjustment of Status to $600, and adjusts the fee for family
provide to employers as readily Applications for large families to only members age fourteen and older from
accepted proof that they are authorized other adjustment of status applicants or $905 to $930. Since the fee will drop for
to work in the United States. The fees to all other benefit applications. every concurrently-filed adjustment of
collected by USCIS for EAD Unfortunately, USCIS was unable to status application for someone under
Applications fund the costs incurred by determine the size of the family at 14, families with children who all file
USCIS for issuing EADs. USCIS incurs which it was no more administratively concurrently will see a drop in their
costs for adjudicating the Application burdensome to process an Adjustment collective adjustment fee. For example,
for EAD which is a different issue from of Status Application for an additional a family of two adults and one child
an asylee’s authorization to work relative when processing multiple, will see their total adjustment
incident to asylee status. Further, simultaneous Adjustment of Status application fees drop by $155 relative to
although refugees are not required to Applications from family members. In what they would have paid without this
submit a fee for their initial Adjustment the end, USCIS determined that the change, and a family with two adults
of Status Application, they are required policy or humanitarian considerations and two children will see their
to pay the fee for an Application for inherent in the decisions made in this collective fees drop by $360. A family
EAD or for the Application for Travel final rule to allow additional fee waivers with two adults and four children will
Document to request a refugee travel is not sufficiently prevalent in the case see their fees drop by $770.
document. Providing multiple fee of family Adjustment of Status USCIS explored establishing a child
options based on who typically requests Applications to warrant a family cap, discount in other immigration and
interim benefits, when records indicate absent such data on the requisite burden naturalization benefit areas and has
that the vast majority of applicants do based on size. Thus, USCIS then turned determined that a discount for
request interim benefits, would be too to consideration of the variation in adjudication of a child is only
complicated and costly for USCIS to Adjustment of Status Application fees appropriate in the case of an
administer. Applicants with a pending based on the applicant’s age. Adjustment of Status Application. The
Adjustment of Status Application who Adjustment of Status Application
As pointed out by some comments, requires adjudication of a distinct and
did not pay a fee that incorporates the
the fee for the Adjustment of Status separate application for a child,
cost of an Application for EAD and an
Application was $325 for aliens although it can be submitted
Application for Travel Document must
fourteen years of age or older, but for simultaneously with other family
continue to file separate interim benefit
aliens under fourteen years of age, the members. Other benefits that require
applications with the appropriate fee for
each service. fee was $225. This amounted to a 31 submission of a separate application
A number of comments pointed out percent difference in the base filing fee. from family members, but allow the
that the packaging of these services and In response to these comments, USCIS family members to submit them
the fee increase means that the total fees evaluated the difference in actual concurrently for processing are
a family will pay for concurrently filed processing time and costs associated distinguishable. For example, no fee is
Adjustment of Status Applications will with the ‘‘Make Determination’’ activity charged for the Registration for
increase substantially, and argued for for Adjustment of Status Applications. Classification as Refugee, I–590, and the
some form of family cap on the total fee While the proposed fee for an fee for the Application for Temporary
to be collected. These commenters Adjustment of Status Application was Protected Status, Form I–821, is
pointed out that the child fee level based on the overall cost of processing statutorily capped at $50 per applicant,
under the fee schedule was almost one- the average application, regardless of which is substantially below its
third lower than the adult fee, but the the applicant’s age, the large majority of adjudication costs. Similarly, besides
$100 difference under the proposed fees Adjustment of Status Applications are children, there are no other subgroups
represents only an eleven percent filed by persons fourteen or older. of applicants for adjustment of status
differential between an adult’s and a USCIS conducted an analysis of who possess qualities that would
child’s Adjustment of Status Adjustment of Status Applications provide for segregation of relative
Application fees. These comments submitted concurrently as part of an adjudicative complexity that would
added that this effect exacerbated the application from a family. For the provide sufficient data for a separate fee
impact of the fee changes on families. application to be filed concurrently, the calculation.
Other commenters were concerned that, child must be a derivative applicant of Likewise, the maximum amount
while refugees are charged no fee for the adult or the child’s status must be payable by a family was removed from
their Adjustment of Status Applications, based on the same legal authority as the the fee proposed for Application to
the proposed rule provides that asylees adult’s. This analysis found that there is Adjust Status from Temporary to
must pay a fee for an Adjustment of a 35 percent difference in the average Permanent Resident (under Section
Status Application and suggested that time it takes to process an Adjustment 245A of Pub. L. 99–603), Form I–698,
this treatment was disparate. of Status Application filed by someone and the Application for Status as a
USCIS considered the suggestion that under fourteen years of age versus the Temporary Resident Under Section
cprice-sewell on PRODPC61 with RULES

it institute a maximum fee for a family time it takes to process a case filed by 245A of the Immigration and
where several members submit someone age fourteen or older. This Nationality Act, Form I–687. That
simultaneous Adjustment of Status calculation was consistent with the change was made mainly because
Applications (family cap). USCIS methodology employed by the proposed Immigration Reform and Control Act of
analyzed a number of scenarios to rule in that an identifiable adjudication 1986 (Pub. L. 99–603, November 6,
determine at what level a family cap was segregated and the relative 1986) requires an applicant under that

VerDate Aug<31>2005 15:13 May 29, 2007 Jkt 211001 PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1
Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Rules and Regulations 29863

Act to have entered the United States students and their family members, who 4. Application for Advance Processing
before January 1, 1982, which would typically are of limited means. of Orphan Petition
exclude anyone currently under the age For international students, F–1 status Many comments focused specifically
of 18. Further, the family cap for fees allows a student to remain in the United on the fees for a Petition to Classify
charged filing Form I–698 and Form I– States as long as they are a properly Orphan as Immediate Relative, Form I–
687 was a policy established by INS for registered full-time student. To maintain 600, and an Application for Advance
legalization and established at three full-time status, a student must take at
Processing of Orphan Petition, Form I–
times the fee for an individual. As least four courses per semester at the
600A. Several comments suggested that
explained earlier, a family cap that is undergraduate level, and depending on
USCIS should reduce the fee and offer
not based on adjudicative complexity the academic program, three or four
fee waivers for orphan petitions. These
does not comport with the methods courses per semester at the graduate
commenters effectively request that
used for establishing the fee schedule in level. Also, under F–1 status, a student
USCIS shift the costs of this program to
this rule. Therefore, beyond reducing may work part-time in an on-campus job
other immigration benefit applications
Adjustment of Status Application fees and in a ‘‘practical training’’ job directly
and petitions.
for children, USCIS will not provide any related to the student’s field of study for
Adjudicating orphan petitions
discount for families based on size, and twelve months during or after the
involves some of the most complex
USCIS has decided to base Adjustment completion of studies. The OPT
decision-making within immigration
of Status Application fees on the direct program mentioned by the commenters
services because adjudication of
costs associated with that service. grants temporary employment
Petitions to Classify Orphan as
With regard to the different treatment authorization to provide F–1 students
Immediate Relative and Applications for
for refugees and asylees, the exception with an opportunity to apply knowledge
Advance Processing of Orphan Petition
for a fee for refugees is based on the gained in the classroom to a practical
requires knowledge of many state
requirement that a refugee must apply work experience off campus. To be
for adjustment of status within one year eligible for OPT, a student must have adoption regulations and statutes and
of admission as a refugee. INA section been in full time student status for at foreign country adoption requirements.
209(a), 8 U.S.C. 1159(a). Further, while least one full academic year preceding Each petition must be accompanied by
refugees have been affirmatively invited the submission of their application for a home study, background checks, and
by the United States Government to OPT, be maintaining valid F–1 status at evidence that must be carefully
come to the United States for permanent the time of the application, and intend examined. Approval of parents as
resettlement, asylees have sought to work in a position directly related to suitable to adopt is time sensitive as a
admission of their own accord and his or her major field of study. result of the potential changes in a
requested to be allowed to stay. While The United States places a very high household that may impact the
USCIS agrees that both asylees and value on attracting international suitability of the home for an adopted
refugees should receive full protection students and scholars to this country. orphan, such as loss of a job or divorce.
from persecution, it is a reasonable The contributions to the academic Such changes often prevent
policy choice to be more generous in experience for all students provided by reconsideration of the parents’ petition.
awarding immigration benefits to those the existence of a diverse international As a result of this approval expiration
who are invited. Nonetheless, in student body are invaluable. The period, currently set as eighteen
response to comments on this subject, resources devoted to delivering months, prospective adoptive parents
USCIS has decided to allow asylees to immigration benefits to deserving must submit a new petition and all
request a waiver of the Adjustment of students show the importance of this supporting documents if they wish to
Status Application fee on an individual goal to USCIS. USCIS also understands continue with the adoption process if
basis. Section III.E addresses changes in that international students already face they have not been matched with a
fee waivers in more detail below. significant hurdles, including financial child. USCIS sometimes works with a
hurdles, which is why the fee structure case for months, involving frequent
3. Employment Authorization for consolidated fees where consolidation contact with adoption agencies, social
Students made sense, and kept fees to a workers, and prospective adoptive
Many educational institutions and minimum. Nonetheless, substantial parents. Finally, international orphan
their representatives submitted nearly resources are expended by USCIS for adoption adjudications require an
verbatim comments on the proposed fee adjudication of the student’s eligibility investigation and information
increase for an Application for EAD. for employment documents and the fee verification, and may require travel.
These commenters expressed significant for an Application for EAD was This fee increase will allow USCIS to
concerns about the size of the fee and established based on those needs. automate case management of adoption
its effect on the limited financial Further, while USCIS acknowledges that cases, further reducing any real or
capability of most international students the salaries provided by OPT are perceived delays in the manual, paper-
in F visa status and their ability to apply helpful, the emphasis of OPT is on based process currently in place.
for work authorization when they training students in their fields of study, Orphan petitioners must attest that
choose to participate in the Optional not as a source of income. To that end, the beneficiary will not become a public
Practical Training (OPT) program. These the $340 cost of requesting an charge in order to be approved as a
comments noted that international Application for EAD is a very small suitable adoptive parent. Further, the
students on F–1 visas are limited to 20 portion of the total expenses incurred by orphan petition fee is a small part of
hours per week of on-campus an alien pursuing studies in the United what a United States citizen petitioner
employment and the money to pay the States. EAD applicants may request an chooses to accept as part of the overall
cprice-sewell on PRODPC61 with RULES

Application for EAD fee will curtail individual fee waiver based on inability process and cost of adopting a child
their ability to buy food and pay rent. to pay. For Applications for EAD that from overseas and raising that child.
Similarly, these same commenters, for are not granted a fee waiver, USCIS will The financial circumstances required to
the most part, expressed general charge a fee of $340 for processing based be eligible for this benefit directly
concerns about the immigration benefit on the effort and resources expended to contradict the rationale for shifting costs
application expenses for international process this benefit. related to these applications to others,

VerDate Aug<31>2005 15:13 May 29, 2007 Jkt 211001 PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1
29864 Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Rules and Regulations

or for offering a waiver of the fee subsequent application. This final rule two of the more labor intensive petitions
because of inability to pay. also provides that no biometric service that USCIS processes, as evidenced by
A significant number of comments fee will be charged for an update of the the high completion rates in the
suggested that USCIS mitigate the cost biometrics required for an extension of proposed rule. As stated in the proposed
by extending the validity of approved an approved Application for Advance rule, the more complex an immigration
orphan petitions and the results of Processing of Orphan Petition. The same or naturalization benefit application or
background checks. Commenters limitations apply. petition is to adjudicate, the higher the
complained that processing in the USCIS determined that the costs of unit costs. Although the completion
country from which the child comes processing an initial extension were rates for the entrepreneur petition and
often takes longer than the current minimal when it results only from the the petition to remove conditions are
approval validity, which creates re-work parents’ inability to match with a child approximately the same, the fees are
and additional fees. The length of the within the first approval period and the substantially different because the costs
validity of the approval of any petitioner update process begins before expiration are being spread across a smaller
or applicant for a benefit was not actually occurs. The full fee will be number of petitions (600 for immigrant
mentioned in the proposed rule and charged, however, for adjudicating a entrepreneur petitions compared to 45
cannot be amended by this final rule. new application when a child has not for Petitions By Entrepreneur to Remove
Thus, these comments are beyond the been matched after the first extension Conditions), resulting in a higher unit
scope of this rule. (the second approval period). Because of cost for the petition to remove
The final rule provides, as does the the length of time involved (three years) conditions. USCIS explained this
current USCIS fee schedule, that when and the need for substantial updates, the reasoning in the proposed rule and it
more than one petition is submitted by second update often involves the same remains valid.
the same petitioner on behalf of orphans complexity as the initial application.
who are brothers or sisters, only one fee Similarly, when the approval expires 6. Effect on Availability of Skilled
will be required. No fee is collected on and a new application is submitted as Workers
additional siblings because USCIS a result of the first child selected by the Some commenters specifically argued
determined that processing efficiencies prospective adoptive parents not being that an increase in fees will deter
provided by the ability to adjudicate adopted (denial of Petition to Classify employers from seeking skilled workers
two siblings simultaneously did not Orphan as Immediate Relative, Form from outside the United States to fill
justify an additional fee. However, in I–600), the resources expended to gaps in the workforce, adversely
the case of multi-child simultaneous adjudicate the first Petition to Classify affecting the competitiveness of the
petitions when the orphans are not Orphan as Immediate Relative require a United States. USCIS disagrees with the
siblings, USCIS requires separate fees new fee for beginning the process anew notion that an increase in fees will deter
for each child because of the processing for a new orphan from the same country employers from seeking skilled workers
requirements of determining eligibility or a different foreign country as the first for employment in the United States.
of each child. In addition, if a filing fee application. There is no evidence suggesting that fee
is paid at the time of filing an increases deter skilled workers from
Application for Advance Processing of 5. Entrepreneurs coming to the United States, as these
Orphan Petition, a fee is not required One commenter, representing an comments suggested. In addition, this
again to file a Petition to Classify association of affected individuals, rule does not require an individual alien
Orphan as Immediate Relative. claimed that the fee for the Immigrant to pay his own petition fees since the
Since a large number of commenters Petition by Alien Entrepreneur, Form fees for employment-based visa
ardently mentioned this issue as part of I–526, is incorrect because this benefit petitions are generally paid by the firms
their comments, USCIS has decided to is only adjudicated at USCIS service hiring an alien for a position. Moreover,
allow a prospective adoptive parent to centers, not at USCIS local offices as in most employment-based visa
receive one extension of the approval of stated in the proposed rule. In addition, categories, the demand for immigrants
the Application for Advance Processing the commenter stated that USCIS has greatly exceeds the maximum number of
of Orphan Petition at no charge. not shown why the percentage increase visas permitted each year under the
Prospective adoptive parents, who have for the Immigrant Petition by Alien INA. For example, applications for
not found a suitable child for adoption Entrepreneur (for EB–5 status) filing fees H–1B visas exceeded the FY 2007
as evidenced by their failure to submit should be higher than others, especially statutory cap on the first day that
a Petition to Classify Orphan as when compared to the Petition by applications were accepted.
Immediate Relative after approval of Entrepreneur to Remove Conditions, USCIS expects substantial demand for
their Application for Advance Form I–829. The commenter stated that these visas to continue following the
Processing of Orphan Petition, will be petitions to remove conditions generally implementation of this rule. Similarly,
allowed to request one extension of the should take less time to adjudicate the there is no evidence suggesting a direct
approval without charge, including the original entrepreneur petition, which correlation between a fee increase of
biometric fee. This final rule does not has a lower proposed fee. USCIS this magnitude for immigration benefits
change the proposed petition fee of recognizes that the Immigrant Petition and illegal immigration, as some
$670. The request from the applicant for by Alien Entrepreneur is indeed comments have suggested.
an extension of the approval must be in adjudicated at local offices. USCIS One commenter, representing an
writing and received by USCIS prior to service centers will refer certain cases to association of agricultural employers,
the expiration date of approval local offices for interview, however, the claimed that the proposed fee for the
indicated on the Notice of Favorable volumes of Immigrant Petition by Alien Nonimmigrant Worker Petition is unfair
cprice-sewell on PRODPC61 with RULES

Determination Concerning Application Entrepreneur filings referred are because the cost to adjudicate this
for Advance Processing of Orphan relatively small (three percent), and the benefit varies greatly depending on the
Petition, Form I–171H. This no charge resulting cost impact is minimal. type of petitioner. The commenter
extension is limited to only one The Immigrant Petition by Alien suggested that H–2A employers are
occasion. A complete application and Entrepreneur and the Petition by subsidizing the other, more complicated
fee must be submitted for any Entrepreneur to Remove Conditions are petitions of this form type. USCIS

VerDate Aug<31>2005 15:13 May 29, 2007 Jkt 211001 PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1
Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Rules and Regulations 29865

recognizes that some adjudications processing, from a workload charge, including but not limited to,
within a particular form type are more perspective, fee waivers represent well Adjustment of Status Applications for
expensive than others, and that the over ten percent of the remaining effort. Special Immigrant—Juveniles, or based
more complex petitions are subsidized In addition, the application fee for on the Cuban Adjustment Act, Haitian
by the simpler ones since the fee is Temporary Protected Status (TPS) is Refugee Immigration Fairness Act, and
calculated as an average. While USCIS limited by statute to $50. INA section the Nicaraguan Adjustment and Central
understands the position of this 244(c)(1)(B), 8 U.S.C. 1254a(c)(1)(B). American Relief Act. This final rule
commenter, it would be far too complex USCIS has historically waived the filing does not expand fee waiver eligibility
and expensive to administer a fee fee for TPS status for aliens unable to further in adjustment of status cases.
schedule based on the type of applicant pay even this statutorily capped fee. 8 The changes made to the fee waiver and
or petitioner within a particular benefit. CFR 244.20. exemption eligibility criteria did
USCIS disagrees with this 1. Victims and Asylee Adjustment of increase fee waiver and exemption costs
recommendation as it would further Status Applications somewhat, but this had no impact on
increase fees to recover the additional the resulting fee schedule given the
costs necessary to administer this USCIS proposed to exempt certain insignificant volume numbers
change. classes of aliens from paying a filing fee associated with the affected applications
where it believes that the incidence of and petitions.
E. Fee Waivers and Exemptions fee waivers due to inability to pay
A number of comments focused on would be very high. In the proposed 2. Special Immigrant—Juvenile
applicants or petitioners who would not rule, USCIS proposed to expand the A number of commenters suggested
be required to pay a filing fee for class fee exemptions to three small that ‘‘Special Immigrant—Juveniles’’
immigration benefits, relating to fee volume programs: Victims of human also should be exempt from certain fees.
exemptions for classes of applicants or trafficking (T visas), victims of violent A ‘‘Special Immigrant—Juvenile’’ is an
petitioners and requests for fee waivers crime (U visas), and Violence Against immigrant under the age of 21,
due to inability to pay, as set forth in 8 Women Act (VAWA) self petitioners. unmarried, who is a ward of a court in
CFR 103.7(c). Some comments argued See INA sections 101(a)(15)(T) or (U), 8 the United States (for the most part State
that class fee exemptions and fee U.S.C. 1101(a)(15)(T) and (U), and courts) or eligible for long-term foster
waivers should be further limited Public Law 109–162, secs. 811–817, 119 care or in custody of a state agency, and
because they simply transfer costs to Stat. 2960, 3057 (Jan. 5, 2006). Those judicial proceedings have determined
other applicants or petitioners. Others programs involve the personal well that it would not be in that Special
argued that fee waivers should be being of a few applicants and Immigrant—Juvenile’s best interests to
granted on a far wider basis. In response petitioners, and the decision to waive be returned to his or her home country.
to comments, USCIS reconsidered the these fees reflects the humanitarian USCIS has determined that a fee
fee waiver provisions of the proposed purposes of the authorizing statutes. exemption for this petition would be
rule. The final rule maintains this blanket fee consistent with the exemptions granted
A fee waiver based on inability to pay exemption because it is consistent with for other classes of aliens and the
requires that other applicants or the legislative intent to assist persons in humanitarian purpose of the statute.
petitioners pay for the same service and these circumstances. Anecdotal Therefore, the final rule exempts
for a portion of the fee being waived for evidence indicates that applicants under ‘‘Special Immigrant—Juveniles’’ from
that applicant or petitioner. Fee waivers these programs are generally deserving the fee for submitting a Petition for
represent approximately one percent of of a fee waiver. Thus, USCIS determined Amerasian, Widow(er), or Special
the total applications and petitions filed that these programs would likely result Immigrant, Form I–360. This fee
with USCIS each year. in such a high number of waiver exemption is a change from the
Many comments implied that waiving requests that adjudication of those proposed rule in addition to the change
fees in such a small percentage of cases requests would overtake the allowing a Special Immigrant—Juvenile
suggests that the current fee waiver adjudication of the benefit requests to apply for an individual waiver of the
policy is far too stringent, and should be themselves. fee for an Adjustment of Status
liberalized rather than further restricted. After reviewing the potential numbers Application.
However, while the number of fee of such applicants, USCIS has decided
waivers USCIS grants represents a small to allow these classes of aliens to 3. Biometric Fee
percentage of total filings, USCIS has request a fee waiver for when filing an Numerous comments suggested that
historically granted most of the fee Adjustment of Status Application. the biometric fee was a burden for those
waiver requests received. Another USCIS has made this determination for aliens who could not afford it. In
reason why the number of fee waivers all of the reasons stated above, but response, USCIS conducted an analysis
may be seen by some as low is that tempered by the fact that an application of the costs to USCIS if such waivers
individual fee waivers are granted in to adjust status cannot be filed for a were allowed. As with any other waiver,
addition to fee exemptions granted to significant time after the alien has been the loss of that fee revenue would
certain classes of individuals. Taken granted T, or U status. Accordingly, this necessarily be spread across all other
together, on a transactional basis, USCIS rule provides that a Form I–485 may be benefit applications and petitions,
does not collect a fee in over seven subject to a fee waiver when the having the potential to increase those
percent of the cases received. Excluding person’s eligibility for adjustment of fees.
business petitions to bring in foreign status stems from asylum status, T To analyze this issue, USCIS
workers, nonimmigrant matters where status (victims of human trafficking), U determined the total number of requests
cprice-sewell on PRODPC61 with RULES

the aliens must be able to support status (victims of violent crime who for waivers received in FY 2006, the
themselves to be eligible for status, and assist in the prosecution), self number of fee waivers approved, and
cases involving international travel, fee petitioners under the Violence Against the number approved that were for
waivers represent over eight percent of Women Act, or where by law the person applications where biometrics were
the remaining workload. Given the otherwise is not required to demonstrate required. USCIS determined that, had
complexity of asylum and refugee that he or she will not become a public the biometric fee been waived for those

VerDate Aug<31>2005 15:13 May 29, 2007 Jkt 211001 PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1
29866 Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Rules and Regulations

applicants or petitioners whose waiver operations. In the absence of identifiable recipient for a measurable
request for the underlying application or appropriations, however, the only unit or amount of Government service
petition was approved, the associated funding source is fee revenue. The or property from which [the recipient]
costs for collecting the biometrics President’s FY 2008 budget is based on derives a special benefit.’’ 415 U.S. at
spread across all paying applicants user fee funding for USCIS operations 349 (quoting Bureau of the Budget
would have added only one dollar to the (other than expansion of employment Circular No. A–25 (Sept. 23, 1959)).
biometric collection fee. Because all fees verification) and will fund all other Such fees may be assessed even when
are rounded to the nearest $5 increment, USCIS operations from fee receipts. the service redounds in part to the
the model showed that allowing a fee Accordingly, the proposed rule was benefit of the public as a whole.
waiver for the biometric fee would issued in conjunction with the FY 2008 National Cable Television Ass’n, 415
result in no increase. Therefore, USCIS budget proposal. U.S. at 343–44. So long as the service
decided to accept the commenters’ INA Section 286(m), 8 U.S.C. provides a special benefit above and
suggestion. This final rule provides 1356(m), provides that the United States beyond that which accrues to the public
discretion to USCIS officials to waive may collect fees at a level that will at large to a readily-identifiable
the biometric fee, following the same ensure recovery of the full costs of individual, the fee is permissible. New
general guidelines used to consider all providing adjudication and England Power, 415 U.S. at 349–51 & n.
other requests for fee waivers such as naturalization services, including the 3.
financial hardship. Beyond these costs of providing similar services Prior to the enactment of section
limited programs, and those for asylees without charge to asylum applicants 286(m) of the INA, fees charged for
and refugees, USCIS has decided not to and certain other immigrants: immigration services were governed by
shift the costs of processing any other Notwithstanding any other provisions of the IOAA and were judicially reviewed
specific immigration benefit law, all adjudication fees as are designated by under the IOAA. A more elementary
applications and petitions to others. the [Secretary] in regulations shall be cost analysis than that currently used
deposited as offsetting receipts into a was upheld by the courts. Ayuda, Inc.
F. Authority To Set and Collect Fees separate account entitled ‘‘Immigration v. Attorney General, 661 F. Supp. 33
Some comments suggested that the Examinations Fee Account’’ in the Treasury (D.D.C. 1987), aff’d, 848 F.2d 1297 (D.C.
proposed rule exceeded USCIS’ of the United States, * * *: Provided further, Cir. 1988). As the Court of Appeals in
statutory authority to collect fees. Some That fees for providing adjudication and
naturalization services may be set at a level
Ayuda stressed, the procedures were
comments suggested that administrative that will ensure recovery of the full costs of ‘‘triggered only at the instance of the
and overhead costs were not related to providing all such services, including the individual who seeks, obviously, to
the provision of services and should be costs of similar services provided without benefit from them.’’ 848 F.2d at 1301.
excluded. Other comments suggested charge to asylum applicants or other The United States is a nation largely
that enforcement costs should be immigrants. Such fees may also be set at a built by immigrants and immigration
excluded from the fees, while others level that will recover any additional costs continues to refresh this country.
posited that all of the enforcement costs associated with the administration of the fees Accordingly, USCIS agrees that there is
of immigration and law enforcement collected.
a certain undeniable public interest in
agencies should be recovered by fees. Under this authority, user fees are immigration. The costs reflected in the
Underlying these comments is the issue employed not only for the benefit of the proposed fees exist, however, because
of compliance with the authorizing payor of the fee and any collateral applicants and petitioners seek
statute and internal Executive Branch benefit resulting to the public, but also immigration benefits and services.
guidance. On the other hand, one provide a benefit to certain others, There are also public interests in
commenter particularly noted that while particularly asylum applicants and discrete processes such as background
USCIS is permitted to fund all of its refugees and others whose fees are checks. Background checks are an
operations from fees, there is no waived. integral part of determining the
statutory mandate requiring it to do so. applicant’s eligibility for a benefit, and
2. General Authority for Charging Fees
These comments raise the issue of the thus, their costs are appropriate for full
general structure of the fee account, and Comments suggested that only the recovery through a fee. Were it not for
whether user fees can legally recover activities directly relating to specific the underlying application or petition
certain costs. Accordingly, a more adjudications should be charged to for immigration benefits, these specific
detailed explanation of the legislative those who apply for the benefits. These security checks would not have been
authority and management guidance is comments rely on statutory authority conducted.
provided. separate from the authority for these USCIS authority under section 286(m)
fees. The general authority for the of the INA is an exception to any
1. Authority Under the INA federal government to collect fees stems limitation of the IOAA. 31 U.S.C.
Before the IEFA was created in 1988, from the Independent Offices 9701(c). The relevant, second proviso
all activities related to case processing Appropriation Act, 1952 (IOAA), 31 was added to the INA after the Court of
were funded by appropriations. Public U.S.C. 9701(b). Under the IOAA, a Appeals decided Ayuda under the
Law 100–459, sec. 209, 102 Stat. 2186 ‘‘value’’ to the recipient is a key IOAA. Public Law 101–515, sec.
(Oct. 1, 1988). While fees were charged threshold factor and the costs of ‘‘public 210(d)(1), (2), 104 Stat. 2120, 2121 (Nov.
prior to 1988, the fees were treated as interest’’ have been effectively included 5, 1990). The statutory provisions in
miscellaneous receipts of United States within the fees. National Cable section 286(m) of the INA are broader
Treasury and deposited in the general Television Ass’n v. United States, 415 than the IOAA, authorizing USCIS to
fund; those fees were not available to U.S. 336 (1974); FPC v. New England recover the full cost of providing
cprice-sewell on PRODPC61 with RULES

USCIS for spending. The fee account Power Co., 415 U.S. 345 (1974); benefits and ensuring sufficient
was created to provide an alternative to Seafarers Internat’l Union v. Coast revenues to invest in improved service
appropriations. As many of the Guard, 81 F.3d 179, 183 (D.C. Cir. 1996). and technology. Even though the
comments stated, the law does not In New England Power Co., the Supreme requirements of the IOAA do not apply
preclude the use of appropriations to Court held that the IOAA authorizes ‘‘a in developing these fees, USCIS is
subsidize fee receipts to fund reasonable charge’’ to be made to ‘‘each mindful of the need to explain the

VerDate Aug<31>2005 15:13 May 29, 2007 Jkt 211001 PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1
Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Rules and Regulations 29867

process to the general public. Cf. Engine Branch. To be transparent, the circulars the manner in which immigration
Manufacturers Assoc. v. EPA, 20 F.3d and agency use of the circulars are often benefits are adjudicated. Accordingly,
1177 (D.C. Cir. 1994). publicly spelled out in regulations and USCIS believes that all of the costs
other public statements. In this case, as identified in the proposed rule may be
3. Surcharge for Asylum, Refugee and
with any fee rule of this nature and recovered through fees.
Fee Waiver/Exemption Costs Finally, the costs of all of the 27
magnitude, the proposed rule and this
Some comments questioned whether final rule have been considered by OMB identified enhancements may be
fees should include the surcharge for and other Executive offices in recovered. Some of these enhancements
services USCIS provides without fee or accordance with the appropriate are designed to comply with
where it waives a fee, and asserted that Executive Orders, including Executive Congressional mandates for the
these costs should not be transferred to Order 12866, as amended, and other operation of the government; others are
other applicants. Pursuant to section management instructions and directives. designed to ensure that USCIS operates
286(m) of the INA, USCIS does include While section 286(m) of the INA is a securely and efficiently. While these
these surcharges in other application separate authority for the cost analysis costs and many other enhancements
and petition fees. and fees, as stated earlier, USCIS could be the basis for disagreement,
USCIS could charge a specific fee to follows the procedures outlined in OMB USCIS acts within its discretion to
apply for asylum and that fee would be Circular A–25 and standard accounting account for them within the fees to be
limited to the ‘‘costs in adjudicating the procedures as discussed in the proposed charged.
applications.’’ Section 208(d)(3) of the rule to the extent that they are
INA, 8 U.S.C. 1158(d)(3). The 5. Homeland Security Act
applicable. Further, the ‘‘full cost’’
humanitarian nature of the asylum concept also includes the amount A commenter suggested that the
process gives USCIS good reason not to required to manage USCIS or proposed rule, if promulgated in final
exercise this authority. USCIS has never ‘‘overhead.’’ The proposed rule form, exceeded the authority provided
charged fees for an Application for described the types of costs that USCIS to DHS in the Homeland Security Act of
Asylum, Form I–589. For the same considered as overheard when 2002 (HSA), Public Law 107–296, 116
reasons, asylum applicants are exempt determining the proposed fee levels. Stat. 1135 (Nov. 26, 2002). In particular,
from the requirement to submit the fee One commenter provided a detailed the commenter suggested that the
for fingerprinting with the application but limiting analysis of USCIS’ authority division of functions between USCIS
for asylum. 8 CFR 103.2(e)(4)(ii)(B). under section 286(m) of the INA, 8 under section 451 of the HSA, 6 U.S.C.
U.S.C. 1356(m), suggesting that ‘‘full 271, and the then-Under-Secretary for
4. OMB Circular A–25
cost’’ was more limited than suggested Border and Transportation Security
When a service enables the in the proposed rule and limited to under section 441 of the HSA, 6 U.S.C.
beneficiary to obtain more immediate or specific ‘‘activities,’’ and suggesting that 251, required a more limited scope for
substantial gains or values than those most of the enhancements fell outside USCIS fees, excluding any law
that accrue to the general public, a user USCIS authority to recover as fees. enforcement or national security
fee is appropriate. The fact that a USCIS disagrees. functions under the Fraud Detection
process benefits the public interest as Section 286(m) permits USCIS wide and National Security operations.
well as a private party does not mean latitude in determining the degree to Another commenter suggested that
that process cannot be funded by a user which fees will be used to support USCIS authority was even more
fee. The entire legal immigration and operations. USCIS, in conjunction with restricted to the functions of the former
citizenship process, with respect to both DHS and OMB, has determined that fees Adjudications Branch of the INS that
grants of benefits and denials for should recover all, but not more, than were transferred to DHS. By contrast,
national security or other reasons, is one the cost of operation for USCIS. another commenter conceded that while
that benefits the public as well as Accordingly, the Administration has not USCIS is permitted to fund all of its
private interests, but focuses on the requested an appropriation for USCIS, operations from fees, there is no
adjudication of eligibility for individual except specific funds for expansion of a statutory mandate requiring it to do so.
benefits. A fee-based structure is voluntary employment verification DHS disagrees with these suggested
appropriate even when the public as a program, for which USCIS is prohibited restrictions and agrees that it may fund,
whole benefits. As OMB Circular A–25 by statute from charging fees for this as a matter of discretion, all of USCIS
makes clear, ‘‘when the public obtains program. Illegal Immigration Reform operations, or more, from fees. Congress
benefits as a necessary consequence of and Immigrant Responsibility Act of provided the Secretary with
an agency’s provision of special benefits 1996, Public Law 104–208, tit. IV, sec. reorganization authority to allocate or
to an identifiable recipient (i.e., the 402(c)(1), 110 Stat. 3009–657 (Sept. 30, reallocate functions within DHS. HSA,
public benefits are not independent of, 1996). section 872, 6 U.S.C. 452. The division
but merely incidental to the special The ‘‘full cost’’ of services may be of functions transferred by the HSA is
benefits), an agency need not allocate interpreted, and USCIS interprets the subject to the direction and management
any costs to the public and should seek full cost of services to mean all of the of the Secretary. HSA sections 101, 102;
to recover from the identifiable recipient support costs for such service within 6 U.S.C. 111, 112. Accordingly, the
either the full cost to the Federal USCIS. The activities that may be Secretary may adjust the functions
Government of providing the special included are not strictly those with a within USCIS or across component lines
benefit or the market price, whichever direct effect on a specific application or as appropriate.
applies.’’ OMB Circular A–25, ¶ 6.a.3. petition, but may include those The reorganization of functions
Accordingly, the proposed fees do not activities that support the within USCIS to create the FDNS was a
cprice-sewell on PRODPC61 with RULES

conflict with the guidance in OMB determination, including determining consolidation of specific previous
Circular A–25. whether fraud is being perpetrated functions to streamline operations.
Moreover, OMB Circular A–25 is one against the immigration system and Accordingly, USCIS disagrees that the
of a series of circulars, bulletins and providing public information to help inclusion of FDNS in the fee calculation
memoranda issued by OMB for the improve understanding of both the is inappropriate and will continue to
internal management of the Executive specific applications and petitions and fund that function through fees.

VerDate Aug<31>2005 15:13 May 29, 2007 Jkt 211001 PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1
29868 Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Rules and Regulations

Furthermore, the functions performed USCIS did not receive any requests to resource requirements, to calculate
by USCIS are entirely consistent with access the modeling program. application and petition fees. This
those transferred from INS to USCIS by Finally, preparation of an ‘‘invoice’’ budget accurately reflects USCIS’
the HSA. would be an additional administrative current spending as approved by the
Accordingly, this final rule task that would itself add to the costs to Congress.
establishes a level of fees sufficient to be recovered by the fees. The United Consistent with its previous
recover the full cost of operating USCIS. States does not prepare such documents comprehensive fee review, USCIS used
The rule has not been amended to beyond the warrants, journals, ledgers, the FY 2007 budget as a baseline, before
include other costs that could be legally and books of account required to be subtracting nonrecurring expenses and
charged or to exclude any costs of prepared and preserved by law and adding in inflation and additional
operating USCIS. Executive policy. See, e.g. OMB, resource requirements, to calculate
Financial Reporting Requirements, OMB application and petition fees. In
G. Methods Used To Determine Fee Circular A–136 (rev. July 24, 2006). addition, prior to the start of FY 2007,
Amounts USCIS leadership conducted an
2. Alternative Budget Modeling
The cost of providing the right benefit extensive evaluation of its FY 2007
Several commenters suggested that spending. This level of scrutiny has
to the right person in an appropriate
USCIS consider alternative budget enabled USCIS to meet several service
amount of time without compromising
modeling. One commenter suggested delivery goals, such as eliminating the
security is a complex, carefully
using a ‘‘zero-based budget’’ to application and petition backlog. The
administered process. The fees
determine application and petition fees, scrutiny employed in analyzing the
promulgated in this final rule reflect the
stating that the enacted FY 2007 IEFA USCIS cost structure and future needs
costs resulting from the complexity of budget used by USCIS could involve
the various immigration benefits that should minimize misused resources.
inefficient expenditures that waste time Thus, USCIS disagrees with the
USCIS administers and the costs of the and money and disserve immigrants and
large number of benefits provided for assertion that its current expenditures
families who have filed applications or are inefficient.
which there is no charge. By recovering petitions. A ‘‘zero-based budget,’’ or Another commenter suggested that
the full cost of doing business, the ZBB, is a planning tool in which all USCIS use the actual time it took to
revised fee schedule will enable USCIS expenditures must be justified and perform the various immigration
to reduce application and petition analyzed. The United States attempted adjudication and naturalization
processing times and improve customer ZBB in the late 1970s. The first activities, with no analysis of whether
service, and in the long run, make the requirements for the calculation of a USCIS could operate its program more
legal immigration process more secure, ‘‘current services’’ baseline were efficiently and for a reduced cost to
efficient, and welcoming to all enacted in the early 1970s, and a variety those paying fees, thereby implying that
immigrants. of concepts and measures have been greater efficiencies could be factored
1. USCIS Costs employed, including ZBB. USCIS into the proposed fees.
believes, however, that the baseline has USCIS disagrees with this suggestion.
A number of comments questioned or serious technical flaws, which To the extent practical, USCIS has
asked for additional information on the compromise its ability to serve as a factored into the fees those efficiencies
methodology used to determine USCIS neutral measure. ZBB, like other that can be predicted (particularly
costs. Others questioned the costs and systems such as Planning-Programming- enhancements). USCIS is firmly
calculations provided in the proposed Budgeting System (PPBS), can be a committed to seeking new ways of
rule, while some requested an invoice useful tool, but requires defined doing business and reengineering
that details the costs of services. USCIS decision units that, for a service processes in order to contain costs and
is making no changes to the final rule organization like USCIS, would mean a pass on the savings to all of our
as a result of these comments. complete time and motion study of customers, and the new fee structure
Detailed information on the every activity, which would be very will enable USCIS to make
methodology and the cost components labor intensive and time consuming and improvements that will ultimately help
and calculations was provided in the which would be a cost factored into the reduce USCIS costs. Productivity
proposed rule and remains on the fee requirements. enhancements that affect hours per
docket of this rule, and will be provided The commenters’ concerns about the completion calculations produce lower
directly by USCIS upon request. The budgeting methods are addressed in the cost per unit. Process improvements
underlying supporting elements, such as fee determination and budgeting implemented over the past several
independent legal requirements, the methodology utilized. The Budget of the years, as well as projected productivity
General Schedule pay scales, or travel United States is developed on a ‘‘current increases, were taken into account in
reimbursement rates, are all publicly services estimates,’’ or ‘‘baseline’’ the current fee review, keeping fees
available. In the notice of proposed budgeting, methodology which is lower than they might otherwise have
rulemaking, USCIS offered to provide designed to provide a neutral been. Specifically, this fee increase
the public with an opportunity to benchmark against which policy reflects USCIS’ commitment to a
review the functioning of the proposals can be measured. The current projected four percent increase in
computerized cost model used by services estimates (which include productivity for Adjustment of Status
USCIS through onsite viewing on its inflation) may only be changed through Application processing, and a two
computer system. While USCIS cannot justification of adjustments and percent increase in productivity for all
provide complete access to the enhancements. Accordingly, consistent other applications and petitions. USCIS
cprice-sewell on PRODPC61 with RULES

computer software purchased under with the United States Government will remain accountable for these
license, USCIS’ fee determination is, budget methodology, USCIS used the projected productivity increases in
within reason, an open process, and a FY 2007 congressionally-enacted order for fees to support operations as
summary of how calculations were spending level as a baseline, before intended.
made and results achieved were subtracting nonrecurring expenses and Another commenter expressed
available for review upon request. adding in inflation and additional concerns about the level of scrutiny in

VerDate Aug<31>2005 15:13 May 29, 2007 Jkt 211001 PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1
Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Rules and Regulations 29869

identifying the amount of the additional is received. The fee-paying volume of local offices and twelve (or 3.0 percent)
resource requirements or enhancements. the Petition for Amerasian, Widow(er), at service centers.
These costs were subject to the same or Special Immigrant is much less than A commenter questioned why the
level of scrutiny as all other USCIS the workload volume (4,772 compared Naturalization Application is filed at
costs. The additional resource to 16,000) resulting in costs being service centers, but no completion rate
requirements have been carefully spread to fewer applications and, data is provided for service center
reviewed by both DHS and OMB to consequently, a higher Make processing. Completion rate data is
ensure accuracy, and are displayed Determination cost. The second instance displayed for local offices instead of
(with assumptions) in the supporting fee is simply a case of costs being spread to service centers for this benefit because
review documentation on the docket. a greater number of applications the local offices perform the
USCIS provided this detailed (220,000 for Application To Extend/ adjudication. Using completion rate
information for transparency purposes Change Nonimmigrant Status compared data for benefits that are only received
to facilitate public scrutiny during the to 143,000 for the Petition to Remove at Service Centers and not adjudicated
sixty-day public comment period. Conditions of Residence) resulting in a would not be accurate.
lower unit cost. After reviewing these Another commenter suggested that it
3. ‘‘Make Determination’’ Activity is simply not credible that local offices
comments, USCIS remains convinced
A few commenters questioned the that the calculations are correct. spend an average of two hours
calculation of the ‘‘Make processing each Alien Employee
One commenter also questioned why
Determination’’ activity cost estimates Petition, when service centers only
the costs for an Application for EAD are
as well as the volume estimates used in spend 52 minutes on an Alien Employee
significantly higher than the
the fee review. As explained in the Petition. For various reasons, more
Application for LPR Card costs, when
proposed rule and the fee review complex cases are referred to local
Application for EAD completion rates
supporting documentation, ‘‘Make offices for an interview, explaining why
for local offices, service centers, and
Determination’’ costs were assigned to the completion rate varies from service
the applications and petitions by National Benefits Center are lower than
center to local office. However, as
completion rates (level of effort or the Application for LPR Card
previously stated, the volumes are
complexity) and workload volume. completion rates. As stated in the relatively small for these cases, and
USCIS uses the most current and proposed rule, $11.5 million in therefore the cost impact is minimal.
accurate completion rates and workload Application Support Center contract A commenter also questioned the
volumes provided by the USCIS costs directly support processing an increased fee for the Application for
Performance Analysis System. USCIS Application for LPR Card. Therefore, EAD, stating that the proposed fee is
adjusts these workload volumes to this cost comparison cannot be fairly inaccurate given that USCIS
reflect filing trends in FY 2007 and analyzed by solely looking at the implemented a new policy to no longer
projected changes for FY 2008/2009. completion rates at local offices, service issue interim EADs at local offices.
The USCIS Workload and Fee Projection centers, or the National Benefits Center Because local offices have higher
Group leverages a time series model since a significant portion of the work completion rates than other offices for
based on a regression analysis over the is performed outside these offices. this benefit, the commenter stated that
last fifteen years, with the most recent 4. Activity-Based Costing the fee should be re-calculated and
data trends given the greatest weight. reduced. Although USCIS has
The commenters quoted two A few commenters suggested that implemented a new policy to no longer
particular instances of concern, one USCIS’ activity-based costing analysis issue interim EADs at local offices, the
being the variance between the was flawed since USCIS included practice of where the adjudication takes
Application to Preserve Residence (with completion rates for local offices that no place has not changed. Local offices will
a completion rate of 3.39 hours and a longer have jurisdiction or continue to adjudicate Application for
make determination cost of $428) and responsibility to process certain form EAD filings and, therefore, USCIS
Petition for Amerasian, Widow(er), or types (e.g., Nonimmigrant Worker believes the fee is accurate as stated in
Special Immigrant (with a completion Petition, Form I–129; Petition for Alien the proposed rule.
rate of 3.21 hours and a make Fiance(e), Form I–129F; Alien Employee
determination cost of $2,268); and the Petition, Form I–140; Application To 5. Calculating Specific Processing
other being the variance between the Extend/Change Nonimmigrant Status, Requirements
Application To Extend/Change Form I–539; Petition by Entrepreneur to One commenter remodeled the costs
Nonimmigrant Status, Form I–539 (with Remove Conditions, Form I–829), and for the fee increase for an Adjustment of
a completion rate of 1.32 hours at the service centers that do not have Status Application and questioned the
local office and 0.39 hours at the service jurisdiction or responsibility to process 66 percent fee increase calculation after
center and a make determination cost of certain forms (e.g. Application to consolidating the fees for the
$84), and the Petition to Remove Preserve Residence for Naturalization Application for EAD that previously
Conditions of Residence, Form I–751 Purposes, Form N–470). While it is true required additional fees. The
(with a completion rate of 1.36 hours at that certain USCIS offices have primary commenter stated that if the Adjustment
the local office and 0.46 hours at the jurisdiction over particular form types, of Status Application processing time is
service center and a make determination it is not uncommon for form types to be seven months as stated in the proposed
cost of $210). These variations are processed at other USCIS offices for rule, then applicants pay for only one
driven by the volumes associated with various reasons. For example, service Application for EAD and one
each application. In the first instance, centers will refer cases to local offices Adjustment of Status Application, for
cprice-sewell on PRODPC61 with RULES

the workload volume of Application to for interview. These volumes, however, fees of $675, not what USCIS assumed
Preserve Residence filings is equal to are relatively small, and, therefore, the for two Applications for EAD and one
the fee-paying volume (669), which cost impact is minimal. For example, of Adjustment of Status Application, for
means that the costs to process these the 439 Application to Preserve fees of approximately $800. The
applications are spread to an equal Residence filings processed in FY 2006, processing times identified in the
amount of applications for which a fee USCIS processed 427 (or 97 percent) at proposed rule represent the processing

VerDate Aug<31>2005 15:13 May 29, 2007 Jkt 211001 PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1
29870 Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Rules and Regulations

times for applications and petitions The commenter also noted the 10. Acceptance of Electronic Payment
within USCIS control. When including decrease in the projected number of Options
the volume of Adjustment of Status Application for LPR Card filings and the Several comments recommended
Applications that are not within USCIS recent surges in Naturalization USCIS accept credit cards for all filings,
control, the processing times for the Application filings. The commenter both for convenience and also to let
Adjustment of Status Applications in expressed concern that USCIS did not filers take advantage of the credit aspect
total are closer to one year. With a explain the projected decline in of the card, to pay the amount to their
processing time of one year, the average Application for LPR Card filings and credit card vendor over time, pointing
applicant normally would pay for two wanted to know the impact if volumes out that this would slightly soften the
employment authorizations, not one. declined more than what was projected impact of the new fees. While the
Therefore, the USCIS calculation is in the fee review (e.g., Naturalization commenters’ suggestion cannot be
correct. Applications). As identified in the implemented at this time, USCIS plans
6. Overhead Charges workload assumptions of the fee review to expand electronic payment
supporting documentation, the decline acceptance over time as it shifts
One commenter questioned the in projected Application for LPR Card receipting of applications and petitions
methodology behind incorporating
filings is due to the increase in projected to other platforms such as lockboxes
overhead costs into the processing costs
Naturalization Application filings. operated by the Department of the
for each application and petition,
Projections are not expected to vary Treasury.
suggesting that these costs are not
widely from those in the fee review.
connected to actually moving an 11. Other USCIS Fees
application or petition forward. The Regardless, USCIS’ new fee model
enables USCIS to adjust fees in a timely One commenter questioned whether
goal of the fee review is to recover the USCIS is fully accounting for all its
resources necessary to fund the full cost manner and USCIS plans to
continuously review fees. If unforeseen other fee revenues. The commenter
of processing immigration benefit noted an additional $44 million in fee
applications and petitions for which costs or volumes result in fees that are
not recovering full costs, a new fee revenues from other accounts as noted
USCIS charges a fee, plus the cost of in the FY 2006 budget request, and
similar services provided at no cost. schedule may be proposed before the fee
review that is required by OMB Circular asked specifically about disposition of
Overhead items, such as the rent the money from the anti-fraud fee under
necessary to house Adjudication A–25 and law to be undertaken in two
years. section 286(v) of the INA, 8 U.S.C.
Officers, are vital to the operation of
1356(v). As noted in the proposed rule,
USCIS and are not a means for hiding 8. Charging a Flat Fee in addition to the IEFA, USCIS receives
expenditures, as suggested. These costs
fee funding from several smaller,
were spread in a pro rata fashion to the At least one commenter suggested that specific accounts, such as the H–1B
processing activities based on the USCIS should change its methodology Nonimmigrant Petitioner Account under
number of government employees and and charge the same fee amount section 286(s) of the Act, 8 U.S.C.
the specific schedules of required space. regardless of the complexity of the 1356(s), and the Fraud Prevention and
That is, the more government staff time immigration benefit. Fees based on the Detection Account under section 286(v)
associated with a processing activity, complexity of the application or petition of the Act, 8 U.S.C. 1356(v), which this
the higher the overhead costs associated are consistent with standard cost
with that activity. Further detail of the proposed rule does not affect.
accounting practices and are also In FY 2006, the Congress enacted $31
overhead cost calculation, including the consistent with USCIS’ past fee setting million for activities funded from the
number of government staff per office practices. USCIS does not agree that Fraud Prevention and Detection
and the identification of overhead items, charging the same fee, regardless of the Account. The requested amount is set
are provided in the fee review benefit, is a better methodology. USCIS by statute providing USCIS with one-
supporting documentation available on believes that applicants and petitioners third of the fraud fees collected for the
the docket. should generally pay a reasonable fee H1-B, H2-B, and L visas and applied to
7. Recovering Deficit From Current commensurate with the level of effort fraud prevention and detection
Operations required to adjudicate such application activities. The proposed rule addresses
or petition. the costs of processing immigration and
One commenter addressed the fact
that USCIS is losing money on each 9. Financial Audits naturalization benefit applications and
application and petition now being filed petitions, biometric services, and
in advance of the increase and Some commenters suggested that associated support services of the IEFA,
questioned whether the increase in fees USCIS’ costs should be subject to an which is in addition to the costs for
was intended to recover these losses. audit. Federal law already requires an activities funded from the Fraud
The fee increase is not intended to annual audit of financial activity, Prevention and Detection Account.
recover the losses currently being including cost, revenues, and payments IV. Statutory and Regulatory Reviews
sustained by USCIS or for retiring any for all executive agencies. 31 U.S.C.
accumulated deficits. USCIS is currently 3521, 7501–7506. USCIS costs are A. Regulatory Flexibility Act
closing a funding gap created by the included in DHS’s financial statements. In accordance with the Regulatory
insufficiency of the fee schedule by The DHS Office of Inspector General Flexibility Act, 5 U.S.C. 601(6), USCIS
relying on spending cuts to critical (OIG) employs an independent public examined the impact of this rule on
programs and services, premium accounting firm to audit all DHS and small entities. A small entity may be a
cprice-sewell on PRODPC61 with RULES

processing revenues, interim benefit component financial statements. In small business (defined as any
revenues, and revenues from temporary addition, GAO and OIG conduct reviews independently owned and operated
programs to fund base operations. The of the effectiveness and efficiency of business not dominant in its field that
fees are designed to recover the costs of USCIS programs and operations, qualifies as a small business per the
operations in the future and are not providing recommendations for Small Business Act, 15 U.S.C. 632), a
retroactive. improvements. small not-for-profit organization, or a

VerDate Aug<31>2005 15:13 May 29, 2007 Jkt 211001 PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1
Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Rules and Regulations 29871

small governmental jurisdiction ReferenceUSA database of business determined by the initial regulatory
(locality with fewer than fifty thousand information, USCIS was able to identify flexibility analysis. After the changes
people). USCIS determined which annual sales revenue estimates for 273 made in this rule, the participating firms
entities were small by using the of the 561 small entities previously will still be predominantly small.
definitions supplied by the Small sampled. Of the 273 small entities, 213 Nonetheless, while a significant number
Business Administration. The size of the or about 78 percent of the small entities of small businesses are affected, USCIS
companies was determined by using the exhibited an impact of less than one has determined that the effects on these
ReferenceUSA databases at http:// tenth of one percent of sales revenue, small businesses are not sufficiently Below is a and all of the small entities sampled significant to exceed this rule’s benefits
summary of the small entity analysis. A exhibited an impact of less than one or require adjustments in the rule’s
more detailed analysis is available in percent of total revenue. A simple (non- requirements based on the size of a
the rulemaking docket. weighted) average of the 273 small petitioner’s business. If fee discounts or
Individuals rather than small entities entities equated to an overall impact of exceptions were allowed for
submit the majority of immigration and only six one hundredths of one percent employment-based immigration benefits
naturalization benefit applications and of sales revenue. Therefore, USCIS based on firm size, the predomination of
petitions. Entities that would be affected believes that a substantial number of small firms in the programs would
by this rule are those that file and pay small entities are not significantly result in the small percentage of larger
the alien’s fees for certain immigration impacted economically by this rule. firms that participate being required to
benefit applications. These applications One comment was received on the pay an inordinate portion of the costs of
include the Nonimmigrant Worker USCIS determination that a substantial adjudicating employment-based
Petition and the Alien Employee number of small entities are not immigration petitions. Further, USCIS
Petition. USCIS conducted a statistically significantly impacted economically by has determined that, even for a small
valid sample analysis of applicants of this rule. First, the commenter suggested entity, the amount of the fees
these application types to determine if that the sample size used to make this established in the USCIS Immigration
this rule has an economically significant determination was too small to provide Benefit Application and Petition Fee
impact on a substantial number of small an accurate picture of the rule’s impact Schedule are so small as to impose no
entities. on small firms. Second, the commenter significant financial or compliance
Out of the 439,000 applications filed suggested that USCIS failed to consider burden on such firms.
in FY 2005 for these application types, that many firms pay for an alien’s In summary, although the analysis
USCIS first identified the minimum individual immigration benefit shows that this rulemaking would affect
sample size that was large enough to application fee in addition to those a substantial number of small entities,
achieve a 95 percent confidence level. incurred by the business. the economic impact of this rule was
This sample size was identified as 383 The sample size used by USCIS was found to be negligible. This rule has
(out of a total of 149,658 unique entities statistically valid to allow USCIS to been reviewed in accordance with 5
that filed applications in FY 2005). estimate the rule’s impact on small U.S.C. 605(b), and the Department of
USCIS then randomly selected 653 entities. In the initial regulatory Homeland Security certifies that this
entities, of which 561 or 86 percent flexibility analysis, USCIS determined rule will not have a significant
were classified as small entities. that 86 percent of the affected entities economic impact on a substantial
Therefore, USCIS determined that a were small entities using Small number of small entities. Thus, USCIS
substantial number of small entities are Business Administration classifications. is required to take no steps to minimize
impacted by this rule. This Eighty-six percent represents a or mitigate the effects of this rule on
determination was not updated based significant majority. More importantly, small entities.
on FY 2006 or FY 2007 applications USCIS compared the cost increases
since programs have not substantially imposed by this rulemaking with the B. Unfunded Mandates Reform Act of
changed and the percentage of small sales revenue of the impacted small 1995
business applicants is expected to entities and determined that the rule The Unfunded Mandates Reform Act
remain fairly constant. would, on average, have an impact of of 1995 requires certain actions to be
USCIS then analyzed the economic only 0.063 percent of sales revenue. taken before an agency promulgates any
impact on small entities of this rule by: The commenter is correct that USCIS notice of rulemaking ‘‘that is likely to
(1) Identifying the number of did not consider the effect on firms that result in promulgation of any rule that
applications filed by the small entities choose to pay alien’s individual includes any Federal mandate that may
having sales revenue data identified by immigration benefit application fee to result in the expenditure by State, local
the random sample and (2) multiplying induce the alien to accept a position and tribal governments, in the aggregate,
the number of applications by the fee with their firm. The Immigration Benefit or by the private sector, of one hundred
increase associated with the applicable Application and Petition Fee Schedule million or more (adjusted annually for
application types in order to estimate is established based on the assumption inflation) in any one year.’’ 2 U.S.C.
the increased annual burden imposed that an individual alien will pay his or 1532(a). While this rule may result in
by this rulemaking. Once USCIS her own application or petition fees and the expenditure of more than one
determined the additional cost of this does not impose any regulatory hundred million by the private sector
rulemaking on the randomly selected requirement on a firm to pay fees for annually, the rulemaking is not a
small entities, USCIS divided this total their employees. A business may choose ‘‘Federal mandate’’ as defined for these
increased cost by the annual sales to assist an employee in that manner; purposes, 2 U.S.C. 658(6), as the
revenue of the entity. By comparing the however, since it is not a direct cost payment of application and petition fees
cprice-sewell on PRODPC61 with RULES

cost increases imposed by this imposed by USCIS on the firm, it was by individuals or other private sector
rulemaking with the sales revenue of the not a consideration for the analysis of entities is, to the extent it could be
impacted small entities, USCIS was able the impacts of this rule. termed an enforceable duty, one that
to understand the economic impact of The employment-based visa programs arises from participation in a voluntary
this rule on the individual small entities of USCIS are predominately used by Federal program, applying for
USCIS has sampled. Using the small businesses, 86 percent as immigration status in the United States.

VerDate Aug<31>2005 15:13 May 29, 2007 Jkt 211001 PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1
29872 Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Rules and Regulations

2 U.S.C. 658(7)(A)(ii). Therefore, no the basis for the annual fee increase. One commenter stated that USCIS did
actions were deemed necessary under Accordingly, this rule has been not consider the potential costs and
the provisions of the UMRA. reviewed by the Office of Management benefits of pursuing possible alternative
and Budget. funding sources. This comment is
C. Small Business Regulatory In response to the proposed rule, one similar to many comments suggesting
Enforcement Fairness Act of 1996 commenter expressly questioned the that USCIS must pursue a Congressional
This rulemaking is a major rule as rule’s benefit and cost analysis. This appropriation that were addressed
defined by section 804 of the Small commenter stated that USCIS had not earlier. With regard to the analysis of
Business Regulatory Enforcement Act of conducted a sufficient analysis of the the benefits or pursuing alternative
1996. This rulemaking will result in an costs, benefits, and, foreseeable funding sources, these comments are
annual effect on the economy of more consequences of the fees proposed. The beyond the scope of the regulation.
than $100 million, in order to generate commenter is correct that USCIS is USCIS is limited to this rulemaking as
the revenue necessary to fully fund the required under Executive Order 12866 an affirmative source of addressing
increased cost associated with the to perform an analysis of this benefits shortfall in its revenues under section
processing of immigration benefit and costs of this rule that complies with 286(m) of the INA, 8 U.S.C. 1356(m). If
applications and associated support OMB Circular A–4, Regulatory Analysis Congress provides funds for USCIS
benefits; the full cost of providing (09/17/2003) (OMB Circular A–4). operations, the benefits of that action,
similar benefits to asylum and refugee However, as A–4 states, ‘‘There are especially as it relates to persons who
applicants; and the full cost of similar justifications for regulations in addition pay fees, are self evident. An in-depth
benefits provided to other immigrants, to correcting market failures. A economic analysis is not required for
as specified in the regulation, at no regulation may be appropriate when you USCIS to recognize that fact. With
charge. The increased costs will be have a clearly identified measure that regard to ‘‘benefits of pursuing possible
recovered through the fees charged for can make government operate more alternative funding,’’ USCIS sees no
various immigration benefit efficiently.’’ The need for this final rule benefit and only costs to be realized
applications. is not based on economics or a failure from such a pursuit. Congress is well
D. Executive Order 12866 of the private markets to address a aware of the funding scheme described
problem but, rather, on enhancing the in this rule.
This rule is considered by the ability of USCIS to advance its goal of
Department of Homeland Security to be improving the delivery of immigration E. Executive Order 13132
an economically significant regulatory programs. This rule is intended to This rulemaking will not have
action under Executive Order 12866, correct breakdowns in the delivery of substantial direct effects on the States,
section 3(f), Regulatory Planning and immigration benefit programs that have on the relationship between the
Review. The implementation of this rule occurred as a result of the currently National Government and the States, or
would provide USCIS with an inadequate fee schedule. Further, as on the distribution of power and
additional $1.081 billion in FY 2008 OMB Circular A–4 states, ‘‘It will not responsibilities among the various
and FY 2009 in annual fee revenue, always be possible to express in levels of government. Therefore, in
based on a projected annual fee-paying monetary units all of the important accordance with section 6 of Executive
volume of 4.742 million applications/ benefits and costs.’’ The net economic Order 13132, the Department of
petitions and 2.196 million requests for effects of this rule are difficult if not Homeland Security has determined that
biometric services, over the fee revenue impossible to determine. this rulemaking does not have sufficient
that would be collected under the The public policy rationale behind Federalism implications to warrant the
current fee structure. This increase in the United States immigration policies preparation of a federalism summary
revenue will be used pursuant to are well known and the benefit of impact statement.
subsections 286(m) and (n) of the Act, immigrants to the United States and its
8 U.S.C. 1356(m) and (n), to fund the citizens are enormous, as reiterated in F. Executive Order 12988
full costs of processing immigration the thousands of comments received on This rule meets the applicable
benefit applications and associated the proposed rule. As stated throughout standards set forth in sections 3(a) and
support benefits; the full cost of the proposed rule and repeated often in 3(b)(2) of Executive Order 12988.
providing similar benefits to asylum and this final rule, the fees established by
refugee applicants; and the full cost of this rule are necessary to update and G. Paperwork Reduction Act
similar benefits provided to other modernize the USCIS infrastructure. Under the Paperwork Reduction Act
immigrants at no charge. If USCIS does The fee amounts comport with of 1995, Public Law 104–13, 109 Stat.
not adjust the current fees to recover the methodology required by OMB and 163 (1995) (PRA), all Departments are
full costs of processing immigration meet both government and private required to submit to OMB, for review
benefit applications, USCIS will be sector standards. Also, while an and approval, any reporting or
forced to implement significant equilibrium analysis has not been recordkeeping requirements inherent in
spending reductions resulting in a performed, the demand for immigration a rule. This rulemaking does not impose
reversal of the considerable progress it benefits obviously and greatly exceeds any new reporting or recordkeeping
has made over the last several years to the availability of such benefits. Thus, requirements under the Paperwork
reduce the backlog of immigration these fees will have no impact on Reduction Act.
benefit applications and petitions, to application volumes or any other public The changes to the fees will require
increase the integrity of the immigration behavior. If USCIS can cover its minor amendments to applications and
benefit system, and to protect national expenses, delays in processing benefits petitions to reflect the new fees. In
cprice-sewell on PRODPC61 with RULES

security and public safety. The revenue and complaints about USCIS service addition, this rule anticipates (but is not
increase is based on USCIS costs and will abate. That is a tangible and dependent on) consolidating the
projected volumes that were available at noticeable benefit. Thus, the benefits of Application for Travel Document and
the time the proposed rule was drafted. this rule exceed its costs. OMB has Application for EAD into the
USCIS has placed in the rulemaking reviewed this rule and concurs in this Application of Adjustment of Status
docket a detailed analysis that explains conclusion. since applicants will not be required to

VerDate Aug<31>2005 15:13 May 29, 2007 Jkt 211001 PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1
Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Rules and Regulations 29873

file three separate application types in certain immigration and naturalization enemy, or an alien who has been
order to apply for adjustment of status, benefits (other than asylum), and whose removed at government expense in lieu
travel documents, and employment residence is in the United States; of deportation—$545.
authorization. This change will reduce provided that: Extension for * * * * *
paperwork burdens on these applicants. intercountry adoptions: If applicable, no Form I–290B. For filing an appeal
The necessary revisions to the approved biometric service fee is charged when a from any decision under the
information collection burden for any written request for an extension of the immigration laws in any type of
new or revised applications will be approval period is received by USCIS proceeding over which the Board of
submitted to OMB for approval before prior to the expiration date of approval Immigration Appeals does not have
being issued for use by USCIS as indicated on the Form I–171H if a Form appellate jurisdiction—$585 (the fee
required under the PRA and 5 CFR I–600 has not yet been submitted in will be the same when an appeal is
1320. connection with an approved Form I– taken from the denial of a petition with
Since the forms will be amended to 600A. This extension without fee is one or multiple beneficiaries, provided
reflect the new fees, USCIS will submit limited to one occasion. If the approval that they are all covered by the same
the appropriate requests for non- extension expires prior to submission of petition, and therefore, the same
substantive change to OMB to reflect the an associated Form I–600, then a decision). Motions. For filing a motion
additional costs. complete application and fee must be to reopen or reconsider any DHS
List of Subjects in 8 CFR Part 103 submitted for a subsequent application. decision in any type of proceeding over
* * * * * which the Executive Office for
Administrative practice and Form I–90. For filing an application Immigration Review does not have
procedures; Authority delegations for a Permanent Resident Card (Form I– jurisdiction. This fee shall be charged
(government agencies); Freedom of 551) in lieu of an obsolete card or in lieu whenever a motion is filed to reopen or
Information; Privacy; Reporting and of one lost, mutilated, or destroyed, or reconsider a single decision, whether it
recordkeeping requirements; and Surety for a change in name—$290. applies to one or multiple
bonds. beneficiaries—$585.
* * * * *
■ Accordingly, part 103 of chapter I of Form I–360. For filing a petition for
Form I–102. For filing a petition for
title 8 of the Code of Federal an application (Form I–102) for Arrival/ an Amerasian, Widow(er), or Special
Regulations is amended as follows: Departure Record (Form I–94) or Immigrant—$375, except there is no fee
Crewman’s Landing Permit (Form I–95), for a petition seeking classification as:
PART 103—POWERS AND DUTIES; An Amerasian; a self-petitioning
AVAILABILITY OF RECORDS in lieu of one lost, mutilated, or
destroyed—$320. battered or abused spouse, parent, or
■ 1. The authority citation for part 103 Form I–129. For filing a petition for a child of a United States citizen or lawful
continues to read as follows: nonimmigrant worker—$320. permanent resident; or a Special
Form I–129F. For filing a petition to Immigrant—Juvenile.
Authority: 5 U.S.C. 301, 552, 552(a); 8
classify a nonimmigrant as a fiancée or Form I–485. For filing an application
U.S.C. 1101, 1103, 1304, 1356; 31 U.S.C.
9701; Public Law 107–296, 116 Stat. 2135 (6 fiancé under section 214(d) of the Act— for permanent resident status or creation
U.S.C. 1 et seq.); E.O. 12356, 47 FR 14874, $455; no fee for a K–3 spouse as of a record of lawful permanent
15557; 3 CFR, 1982 Comp., p.166; 8 CFR part designated in 8 CFR 214.1(a)(2) who is residence—$930 for an applicant
2. the beneficiary of an immigrant petition fourteen years of age or older; $600 for
filed by a United States citizen on Form an applicant under the age of fourteen
■ 2. Section 103.7 is amended by: years when submitted concurrently for
■ a. Removing the entries for ‘‘Form I– I–130.
Form I–130. For filing a petition to adjudication with the Form I–485 of a
506’’ ‘‘Form I–914’’ and ‘‘Motion’’ in parent and the applicant is seeking to
paragraph (b)(1); classify status of an alien relative for
issuance of an immigrant visa under adjust status as a derivative of the
■ b. Revising the entries ‘‘For capturing
section 204(a) of the Act—$355. parent, based on a relationship to the
biometric information’’ and the entries
Form I–131. For filing an application same individual who provides the basis
for forms ‘‘I–90, I–102, I–129, I–129F, I–
for travel document—$305. for the parent’s adjustment of status, or
130, I–131, I–140, I–191, I–192, I–193, I–
Form I–140. For filing a petition to under the same legal authority as the
212, I–290B, I–360, I–485, I–526, I–539,
classify preference status of an alien on parent; no fee for an applicant filing as
I–600, I–600A, I–601, I–612, I–687, I–
the basis of profession or occupation a refugee under section 209(a) of the
690, I–694, I–695, I–698, I–751, I–765, I–
under section 204(a) of the Act—$475. Act; provided that no additional fee will
817, I–824, I–829, N–300, N–336, N–
Form I–191. For filing an application be charged for a request for travel
400, N–470, N–565, N–600, and N–
for discretionary relief under section document (advance parole) or
600K’’in paragraph (b)(1); and by
■ c. Adding paragraph (c)(5). 212(c) of the Act—$545. employment authorization filed by an
The revisions and addition read as Form I–192. For filing an application applicant who has paid the Form I–485
follows: for discretionary relief under section application fee, regardless of whether
212(d)(3) of the Act, except in an the Form I–131 or Form I–765 is
§ 103.7 Fees. emergency case, or where the approval required to be filed by such applicant to
* * * * * of the application is in the interest of receive these benefits.
(b) * * * the United States Government—$545. * * * * *
(1) * * * Form I–193. For filing an application Form I–526. For filing a petition for
* * * * * for waiver of passport and/or visa— an alien entrepreneur—$1,435.
Form I–539. For filing an application
cprice-sewell on PRODPC61 with RULES

For capturing biometric information $545.

(Biometric Fee). A service fee of $80 Form I–212. For filing an application to extend or change nonimmigrant
will be charged for any individual who for permission to reapply for an status—$300.
is required to have biometric excluded, deported or removed alien, an * * * * *
information captured in connection alien who has fallen into distress, an Form I–600. For filing a petition to
with an application or petition for alien who has been removed as an alien classify an orphan as an immediate

VerDate Aug<31>2005 15:13 May 29, 2007 Jkt 211001 PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1
29874 Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Rules and Regulations

relative for issuance of an immigrant to temporary resident status, a fee of Act—$460, for an application filed on
visa under section 204(a) of the Act. $1,370 for each application is required behalf of a biological child and $420 for
(When more than one petition is at the time of filing with the Department an application filed on behalf of an
submitted by the same petitioner on of Homeland Security. For applicants adopted child.
behalf of orphans who are brothers or filing after thirty-one months from the * * * * *
sisters, only one fee will be required.)— date of approval of temporary resident (c) * * *
$670. status, who file their applications on or (5) No fee relating to any application,
Form I–600A. For filing an after July 9, 1991, a fee of $1,410 is petition, appeal, motion, or request
application for advance processing of required. The adjustment date is the made to United States Citizenship and
orphan petition. (When more than one date of filing of the application for Immigration Services may be waived
petition is submitted by the same permanent residence or the applicant’s under paragraph (c)(1) of this section
petitioner on behalf of orphans who are eligibility date, whichever is later. except for the following: Biometrics;
brothers or sisters, only one fee will be * * * * * Form I–90; Form I–485 (only in the case
required.)—$670. No fee is charged if Form I–751. For filing a petition to of an alien in lawful nonimmigrant
Form I–600 has not yet been submitted remove the conditions on residence, status under sections 101(a)(15)(T) or
in connection with an approved Form I– based on marriage—$465. (U) of the Act; an applicant under
600A if a written request from the Form I–765. For filing an application section 209(b) of the Act; an approved
applicant for an extension of the for employment authorization pursuant self-petitioning battered or abused
approval has been received by USCIS to 8 CFR 274a.13—$340. spouse, parent, or child of a United
prior to the expiration date of approval States citizen or lawful permanent
* * * * *
indicated on the Form I–171H. This Form I–817. For filing an application resident; or an alien to whom section
extension will require an update of the for voluntary departure under the 212(a)(4) of the Act does not apply with
applicant’s home study and a Family Unity Program—$440. respect to adjustment of status); Form I–
determination from USCIS that proper 751; Form I–765; Form I–817; Form N–
care will be provided to an adopted * * * * *
Form I–824. For filing for action on an 300; Form N–336; Form N–400; Form
orphan. A no fee extension is limited to N–470; Form N–565; Form N–600; Form
one occasion. If the Form I–600A approved application or petition—$340.
Form I–829. For filing a petition by N–600K; and Form I–290B and motions
approval extension expires prior to filed with United States Citizenship and
entrepreneur to remove conditions—
submission of an associated Form I–600, Immigration Services relating to the
then a complete application and fee specified forms in this paragraph (c).
must be submitted for any subsequent * * * * *
application. Form N–300. For filing an application * * * * *
Form I–601. For filing an application for declaration of intention—$235. Dated: May 3, 2007.
for waiver of ground of inadmissibility Form N–336. For filing a request for
Michael Chertoff,
under section 212(h) or (i) of the Act. hearing on a decision in naturalization
(Only a single application and fee shall proceedings under section 336 of the
Act—$605. [FR Doc. E7–10371 Filed 5–29–07; 8:45 am]
be required when the alien is applying
simultaneously for a waiver under both Form N–400. For filing an application BILLING CODE 4410–10–P

sections 212(h) and (i).)—$545. for naturalization (other than such

Form I–612. For filing an application application filed on or after October 1,
for waiver of the foreign-residence 2004, by an applicant who meets the DEPARTMENT OF TRANSPORTATION
requirement under section 212(e) of the requirements of sections 328 or 329 of
the Act with respect to military service, Federal Aviation Administration
Form I–687. For filing an application for which no fee is charged)—$595.
* * * * * 14 CFR Part 39
for status as a temporary resident under
section 245A(a) of the Act. A fee of $710 Form N–470. For filing an application [Docket No. FAA–2007–26857; Directorate
for each application is required at the for benefits under section 316(b) or 317 Identifier 2006–NM–126–AD; Amendment
time of filing with the Department of of the Act—$305. 39–15069; AD 2007–11–12]
Homeland Security. Form N–565. For filing an application
RIN 2120–AA64
Form I–690. For filing an application for a certificate of naturalization or
for waiver of a ground of inadmissibility declaration of intention in lieu of a Airworthiness Directives; Airbus Model
under section 212(a) of the Act as certificate or declaration alleged to have A310 Series Airplanes
amended, in conjunction with the been lost, mutilated, or destroyed; for a
application under sections 210 or 245A certificate of citizenship in a changed AGENCY: Federal Aviation
of the Act, or a petition under section name under section 343(c) of the Act; or Administration (FAA), Department of
210A of the Act—$185. for a special certificate of naturalization Transportation (DOT).
Form I–694. For appealing the denial to obtain recognition as a citizen of the ACTION: Final rule.
of an applications under sections 210 or United States by a foreign state under
245A of the Act, or a petition under section 343(b) of the Act—$380. SUMMARY: The FAA is superseding an
section 210A of the Act—$545. Form N–600. For filing an application existing airworthiness directive (AD)
Form I–695. For filing an application for a certificate of citizenship under that applies to all Airbus Model A310
for replacement of temporary resident section 309(c) or section 341 of the series airplanes. That AD currently
card (Form I–688)—$130. Act—$460, for applications filed on requires inspections of the lower door
cprice-sewell on PRODPC61 with RULES

Form I–698. For filing an application behalf of a biological child and $420 for surrounding structure to detect cracks
for adjustment from temporary resident applications filed on behalf of an and corrosion; inspections to detect
status to that of lawful permanent adopted child. cracking of the holes of the corner
resident under section 245A(b)(1) of the Form N–600K. For filing an doublers, the fail-safe ring, and the door
Act. For applicants filing within thirty- application for citizenship and issuance frames of the door structures; and repair
one months from the date of adjustment of certificate under section 322 of the if necessary. That AD also currently

VerDate Aug<31>2005 15:13 May 29, 2007 Jkt 211001 PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1