[Federal Register: May 30, 2007 (Volume 72 Number
103)]
[Rules and Regulations]
[Page 29851-29874]
From the
Federal Register Online via GPO Access
[wais.access.gpo.gov]
[DOCID:fr30my07-4]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 103
[Docket No. USCIS-2006-0044; CIS No. 2393-06]
RIN 1615-AB53
Adjustment of the Immigration and Naturalization Benefit
Application and Petition Fee Schedule
AGENCY: United States Citizenship and Immigration Services,
DHS.
ACTION: Final rule.
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SUMMARY: This rule adjusts the fee schedule for U.S. Citizenship
and Immigration Services (USCIS) immigration and naturalization
benefit applications and petitions, including nonimmigrant
applications and visa petitions. These fees fund the cost of
processing applications and petitions for immigration benefits and
services, and USCIS' associated operating costs. USCIS is revising
these fees because the current fee schedule does not adequately
reflect current USCIS processes or recover the full costs of services
provided by USCIS. Without an immediate adjustment of the fee
schedule, USCIS cannot provide adequate capacity to process all
applications and petitions in a timely and efficient manner. In
addition, the revised fees will eliminate USCIS' dependency on revenue
from interim benefits, temporary programs, and premium processing
fees. This rule also merges fees for certain applications and
petitions so applicants and petitioners will only have to pay a single
fee. In addition, the rule expands the classes of aliens that will be
exempt from paying filing fees for certain immigration benefits, and
modifies the criteria for waiving the filing fee due to an
individual's inability to pay. Based on comments received by USCIS
during the public comment period, this rule changes the fees for
adjustment of status applications, and the fee waiver and exemption
eligibility criteria for several immigration benefits. This final rule
will provide sufficient funding for USCIS to meet national security,
customer service, and processing time goals, and to sustain and
improve service delivery.
[[Page 29852]]
DATES: This rule is effective July 30, 2007. Applications or
petitions mailed, postmarked, or otherwise filed, on or after July 30,
2007 must include the new fee.
FOR FURTHER INFORMATION CONTACT: Paul Schlesinger, Chief, Budget
Division, Office of Planning, Budget and Finance, United States
Citizenship and Immigration Services, Department of Homeland Security,
20 Massachusetts Avenue, NW., Suite 4052, Washington, DC 20529,
telephone (202) 272-1930.
SUPPLEMENTARY INFORMATION:
Table of Contents
I.
Background
II. Final Rule
A. Application To Register Permanent
Residence or Adjust Status
B. Intercountry Adoptions
C. Fee
Waivers and Exemptions
D. Miscellaneous Changes and
Corrections
E. Summary of Final Fees
III. Public Comments on the
Proposed Rule
A. General Comments
B. Relative Amount of
Fees
1. Recovery of Additional Costs and Enhancements
2.
Proposed Fees Are Unreasonably High
3. Improve Service, Reduce
Inefficiencies
4. Increases Relative to Time
5. Increases
Relative to Other Standards
6. Grandfathering
7. Budget
Decisions Necessary To Administer Immigration Benefits
8.
Reorganization
C. Alternative Sources of Funding
1. Appropriated
Funds
2. Finding Other Revenue Sources
D. Comments on Specific
Benefit Application and Petition Fees
1. Naturalization
Application
2. Application To Register Permanent Residence or
Adjust Status
3. Employment Authorization for Students
4.
Application for Advance Processing of Orphan Petition
5.
Entrepreneurs
6. Effect on Availability of Skilled Workers
E.
Fee Waivers and Exemptions
1. Victims and Asylee Adjustment of
Status Applications
2. Special Immigrant--Juvenile
3. Biometric
Fee
F. Authority To Set and Collect Fees
1. Authority Under the
INA
2. General Authority for Charging Fees
3. Surcharge for
Asylum, Refugee and Fee Waiver/Exemption Costs
4. OMB Circular
A-25
5. Homeland Security Act
G. Methods Used To Determine Fee
Amounts
1. USCIS Costs
2. Alternative Budget Modeling
3.
``Make Determination'' Activity
4. Activity-Based Costing
5.
Calculating Specific Processing Requirements
6. Overhead
Charges
7. Recovering Deficit From Current Operations
8.
Charging a Flat Fee
9. Financial Audits
10. Acceptance of
Electronic Payment options
11. Other USCIS Fees
IV. Statutory
and Regulatory Reviews
A. Regulatory Flexibility Act
B. Unfunded
Mandates Reform Act of 1995
C. Small Business Regulatory
Enforcement Fairness Act of 1996
D. Executive Order 12866
E.
Executive Order 13132
F. Executive Order 12988
G. Paperwork
Reduction Act
List of Acronyms and
Abbreviations
ABC--Activity-Based Costing
BSS--Biometrics
Storage System
CBP--United States Customs and Border
Protection
DHS--Department of Homeland Security
EAD--Employment
Authorization Document
FBI--Federal Bureau of
Investigation
FDNS--Fraud Detection and National
Security
FY--Fiscal Year
GAO--Government Accountability
Office
GDP--Gross Domestic Product
HSA--Homeland Security
Act
ICE--United States Immigration and Customs
Enforcement
IEFA--Immigration Examinations Fee
Account
INA--Immigration and Nationality Act
INS--Immigration
and Naturalization Service
IOAA--Independent Offices Appropriation
Act
LPR--Lawful Permanent Resident
OIG--Office of Inspector
General
OMB--Office of Management & Budget
OPT--Optional
Practical Training
PPBS--Planning Programming Budgeting
System
SSA--Social Security Administration
TPS--Temporary
Protected Status
USCIS--United States Citizenship and Immigration
Services
VAWA--Violence Against Women Act
ZBB--Zero Based
Budget
I. Background
On February 1, 2007, U.S. Citizenship and Immigration Services
(USCIS) published a notice of proposed rulemaking proposing to adjust
USCIS' immigration and naturalization benefit fee schedule. 72 FR
4888. USCIS' current fee schedule does not establish a level of
funding sufficient to fully fund USCIS operations, allow for future
requirements, ensure adequate staffing, or provide USCIS with funding
sufficient for technological capabilities to continue or improve
timely and efficient processing of immigration benefits. The fees that
fund the IEFA were last updated on October 26, 2005, but merely to
adjust the existing fee schedule to reflect inflation. See 70 FR 56182
(Sept. 26, 2005). The last comprehensive fee review was conducted in
fiscal year 1998 by the Immigration and Naturalization Service (INS).
See 63 FR 1775 (Jan. 12, 1998) (proposed rule); 63 FR 43604 (Aug. 14,
1998) (final rule fee adjustment).
In 2004, the Government Accountability Office (GAO) reported that
the fees collected by USCIS were insufficient to fund USCIS
operations. GAO, Immigration Application Fees: Current Fees are Not
Sufficient to Fund U.S. Citizenship and Immigration Services'
Operations (GAO-04- 309R, Jan. 5, 2004). GAO recommended that USCIS
``perform a comprehensive fee study to determine the costs to process
new immigration applications.'' Id. at 3. In response to GAO's
recommendations, USCIS undertook a comprehensive fee review to revise
its application and petition fees to ensure full recovery of its
operational costs.
As discussed in the proposed rule, the Immigration and Nationality
Act of 1952 (INA), as amended, provides for the collection of fees at
a level that will ensure recovery of the full costs of providing
adjudication and naturalization services, including the costs of
providing similar services without charge to asylum applicants and
certain other immigrants. INA section 286(m), 8 U.S.C. 1356(m). The
INA also states that the fees may recover administrative costs as
well. Id. The fee revenue collected under INA section 286(m) remains
available to provide immigration and naturalization benefits and the
collection of, safeguarding of, and accounting for fees. INA section
286(n), 8 U.S.C. 1356(n).
USCIS must also conform to the requirements of the Chief Financial
Officers Act of 1990 (CFO Act), 31 U.S.C. 901-03. The CFO Act requires
each agency's Chief Financial Officer (CFO) to ``review, on a biennial
basis, the fees, royalties, rents, and other charges imposed by the
agency for services and things of value it provides, and make
recommendations on revising those charges to reflect costs incurred by
it in providing those services and things of value.'' Id. at
902(a)(8). This final rule reflects recommendations made by the DHS
CFO and USCIS CFO as required under the CFO Act.
Office of Management and Budget (OMB) Circular A-25 establishes
Federal policy regarding fees assessed for Government services and the
basis upon which federal agencies set user charges sufficient to
recover the full cost to the Federal Government. OMB Circular A-25,
User Charges (Revised), section 6, 58 FR 38142 (July 15, 1993) (OMB
Circular A-25). Under OMB Circular A-25, the objective of the United
States Government is to ensure that it recovers the full costs of
providing specific services to users. Full
[[Page 29853]]
costs include, but are not limited to, an appropriate share
of--
(a) Direct and indirect personnel costs, including salaries and
fringe benefits such as medical insurance and retirement;
(b) Physical overhead, consulting, and other indirect costs,
including material and supply costs, utilities, insurance, travel and
rents or imputed rents on land, buildings, and equipment; and,
(c) Management and supervisory costs.
Full costs are determined based upon the best available records of
the agency. Id; see also OMB Circular A-11, section 31.12 (June 30,
2006) (Fiscal Year (FY) 2008 budget formulation and execution policy
regarding user fees), found at
http://www.whitehouse.gov/omb/circulars/a11/current_year/a11_toc.html.
When developing fees for services, USCIS also looks to the Federal
Accounting Standards Advisory Board (FASAB) which defines ``full
cost'' to include ``direct and indirect costs that contribute to the
output, regardless of funding sources.'' Federal Accounting Standards
Advisory Board, Statement of Financial Accounting Standards No. 4:
Managerial Cost Accounting Concepts and Standards for the Federal
Government 36 (July 31, 1995). To obtain full cost, FASAB identifies
various classifications of costs to be included, and recommends
various methods of cost assignment. Id. at 33-42.
USCIS entered supporting fee review documentation for this
rulemaking and its methodology, including budget methodology analyses
and regulatory flexibility analyses, into the public docket. See
http://www.regulations.gov , docket number USCIS-2006-0044. A more
detailed discussion of USCIS' fee review can be found in the proposed
rule for this rulemaking action at 72 FR 4888.
II. Final Rule
This fee rule sets out fees to recover the full costs of USCIS
operations. Without these fee adjustments, USCIS will not be able to
maintain critical business functions, properly address fraud and
national security issues, or process incoming applications and
petitions in a timely manner. The revised fee schedule will close
existing funding gaps and allow USCIS to take specific and
demonstrable steps to strengthen the security and integrity of the
immigration system, improve customer service, and modernize business
operations. The fee revenue generated by the revised fee schedule will
support increased security and fundamentally transform and automate
USCIS business operations, all of which will greatly strengthen the
ability of USCIS to perform its mission and place USCIS in a better
position to support possible future legislative reforms. This fee rule
assumes that no new appropriation will be enacted.
This final rule largely implements the fee structure described in
the proposed rule, but makes some adjustments to the fee schedule
based on public comments received. This rule also expands the proposed
fee waiver policy to include additional classes of applicants and
petitioners who may apply for a waiver of certain application and
petition fees for certain services. The rationale for each change is
discussed in the section of the rule that discusses comments on that
issue. The specific changes made are summarized as follows.
A. Application To Register Permanent Residence or Adjust Status
In the proposed rule, the proposed fee of $905 for an Application
to Register Permanent Residence or Adjust Status, Form I-485, was
based on USCIS' projected overall cost of processing the average
application, regardless of the applicant's age. Under the final rule,
the standard fee for filing a Form I-485 by an individual will be
$930; the fee for a child under the age of fourteen years will be $600
when submitted concurrently for adjudication with the application of a
parent under sections 201(b)(A)(i), 203(a)(2)(A), or 203(d) of the
INA. The comments received on this issue and the rationale for making
this change are discussed in section III.D.2 below.
B. Intercountry Adoptions
In the proposed rule, the proposed fee of $670 for filing an
Application for Advance Processing of Orphan Petition, Form I-600A,
was based on USCIS' projected overall cost of processing the average
application. This final rule does not change that proposed fee,
retaining it at $670. However, the final rule provides that the first
request for extension of the approval of an Application for Advance
Processing of Orphan Petition will be accepted without a fee if the
request is filed in advance of the expiration of the Notice of
Favorable Determination Concerning Application for Advance Processing
of Orphan Petition, Form I-171H, and no Petition to Classify Orphan as
Immediate Relative, Form I-600, has been filed with USCIS for
adjudication. This no charge extension is limited to only one
occasion. A complete application and fee must be submitted for any
subsequent application.
This final rule also provides that no biometric fee will be charged
for an update of an approved Application for Advance Processing of
Orphan Petition. Section III.D.4. below discusses the comments
received in this area and the reasons for making this change.
C. Fee Waivers and Exemptions
The final rule alters the proposed rule regarding fee waivers in
three important ways:
It permits an application for a fee waiver for the Application for
Adjustment of Status from asylees, victims of human trafficking (T
visas), victims of violent crime (U visas), and Violence Against Women
Act (VAWA) self petitioners, and Special Immigrant-- Juveniles.
It provides that a ``Special Immigrant--Juvenile'' will not be
charged a fee for submitting the Petition for Amerasian, Widow(er), or
Special Immigrant, Form I-360.
It permits an application for fee waiver of the biometric fee.
These three changes represent a significant expansion of the fee
waiver policy from what was proposed and will ensure that many
applicants or petitioners, who may have faced financial hardship as a
result of these fees, may now have that hardship alleviated. Section
III.E. below discusses these changes and the comments received in this
area more fully.
D. Miscellaneous Changes and Corrections
The final rule makes a few clarifying changes to the regulatory
text in the proposed rule. First, as a result of a comment, USCIS
found that the fee schedule contained a form that was no longer being
used. As a result, references to the entry for Application for Change
of Nonimmigrant Classification, Form I-506, are removed by this rule.
Second, the explanation of the fee for a Motion, Form I-290B, was
found to be outdated in that the section had not been updated to
comport with changes that had been made to 8 CFR part 242 and 8 CFR
1003.8. This rule also clarifies that fee to reflect current
procedures and policies and the applicability of the Motion fee.
Finally, the maximum fee proposed for Application to Adjust Status
from Temporary to Permanent Resident (Under Section 245A of Public Law
99-603),\1\ Form I-698, and Application for Status as a Temporary
Resident under Section 245A of the Immigration and
[[Page 29854]]
Nationality Act, Form I-687, to be paid by a family with children
under eighteen years of age living at home was removed from the final
rule. The statutory eligibility requirements for adjustment of status
under Public Law 99-603 preclude anyone who is currently under age
eighteen from eligibility. Accordingly, that provision was
obsolete.
---------------------------------------
\1\ Immigration Reform and Control Act of 1986, Public Law 99- 603,
tit. II, sec. 201, 100 Stat. 3359, 3394 (Nov. 6, 1986).
---------------------------------------
E. Summary of Final Fees
The USCIS Immigration and Naturalization Benefit Application and
Petition Fee Schedule, the proposed fees, and the final fees
established by this rule are summarized in the attached table.
(SEE PDF VERSION FOR TABLE)
III. Public Comments on the Proposed Rule
USCIS provided a 60-day comment period in the proposed rule and
received more than 3,900 comments.\2\ USCIS received comments from a
broad spectrum of individuals and organizations, including refugee and
immigrant service and advocacy organizations, public policy and
advocacy groups, State and local governmental entities, educational
and other not for profit institutions, labor organizations,
corporations, and individuals. Many comments addressed multiple
issues. USCIS received hundreds of comments through many distinct form
letters and mass mailings that were identical or nearly identical in
content. Many comments provided variations on the same substantive
issues.
---------------------------------------
\2\ All comments may be reviewed at the Federal Docket Management
System (FDMS) at http://www.regualtions.gov, docket number
USCIS-2006-0044. The public may also review the docket upon request by
contacting USCIS through the contact information listed in this rule.
[0]
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The comments ranged from strongly supportive of the increased fees
to strongly critical. Many comments provided critiques of the
methodology and the proposed fee schedule; some suggested alternative
methods and funding sources.
USCIS also invited the public to access the commercial software
utilized in executing the budget methodology and developing the
proposed rule to facilitate public understanding of the fee modeling
process explained in the supporting documentation. 72 FR 4889. USCIS
received no requests for such access to the modeling program.
On February 14, 2007, the House Committee on the Judiciary,
Subcommittee on Immigration, Citizenship, Refugees, Border
Security,
[[Page 29855]]
and Immigration Law heard testimony from the USCIS Director on the
fee proposal during the public comment period. USCIS has included an
unofficial transcript of that hearing in the docket. See, Proposal to
Adjust the Immigration Benefit Application and Petition Fee Schedule,
110th Congress, 1st Sess. (Feb. 14, 2007).
USCIS leadership met with stakeholders and conducted ``question and
answer'' sessions during the public comment period at various cities
throughout the United States, including: Washington, DC.; Los Angeles,
California; New York, New York; Chicago, Illinois; Detroit, Michigan;
Boston, Massachusetts; San Francisco, California; San Jose,
California; Dallas, Texas; Phoenix, Arizona; and Denver, Colorado.
Participants were encouraged to submit written comments on the
rule.
USCIS considered the comments received, the congressional hearing
transcript, the content of the public meetings, and all other
materials contained in the docket in preparing this final rule.
Throughout the comment period, USCIS conducted a ``rolling'' review
process. Comments were reviewed as soon as practical after receipt and
re-reviewed in light of subsequent comments. The review process was
very resource intensive and it permitted USCIS to develop a continuous
understanding of the issues presented and maturation of consideration
of the issues most commonly presented.
A number of comments were not relevant to the substance of the
proposed rule and criticized the rule for not addressing other
immigration law issues. Many commenters suggested changes in the
substantive regulations implementing the immigration laws by USCIS,
United States Customs and Border Protection (CBP), United States
Immigration and Customs Enforcement (ICE), and other agencies. These
comments are beyond the scope of this rulemaking.
The final rule does not address comments seeking changes in United
States statutes, changes in regulations or applications and petitions
unrelated to or not addressed by the proposed rule, changes in
procedures of other components within the Department of Homeland
Security (DHS) or other agencies, or the resolution of any other
issues not within the scope of the rulemaking or the authority of
DHS.
The public may also review any item in the docket upon request by
contacting USCIS through the contact information listed in this
rule.
A. General Comments
Numerous comments supported the rule, although many of those were
qualified by expectations that the fee increase will result in better
service. Many of these comments emphasized that the costly delays in
case processing are far more expensive to applicants and petitioners
than the cost of the discrete filing fee. Others emphasized that
filing fees are often a small portion of the total cost incurred by an
individual or family immigrating to the United States.
In addition, many comments criticized the level of fees and the
amount of the fee increase. A significant number of comments
criticized the proposed fee schedule, suggested that the fee increase
would impede immigration, or argued that specific fees should not be
increased at all or not by the amount proposed. Many commenters
disagreed with the budget decision to fund USCIS entirely from fees
and argued that USCIS should seek an appropriation from Congress.
B. Relative Amount of Fees
A significant number of commenters argued that the proposed fees
were too low. Some expressed general concerns about immigration
levels. Others argued that fees should be high enough to cover all
immigration related costs, not simply application and petition
processing and related USCIS costs, so taxpayers are not asked to pay
for someone entering, residing, or seeking services in the United
States.
1. Recovery of Additional Costs and Enhancements
Many comments suggested that even greater increases could be used
to further improve customer service, stating that this result would
reduce the perceived need for an individual to seek the assistance of
an attorney to understand and navigate the immigration benefits
application and petition process. Other comments suggested that fees
should not be based on USCIS' costs of administration, but on the
value of the benefit received by the applicant (e.g., United States
citizenship). Additionally, some comments pointed out that many aliens
make large payments to those who help them enter the United States
illegally, suggesting that this demonstrated the willingness to pay
more to enter and remain in this country legally or illegally.
Some comments supporting the proposed fees, or even higher
increases, asserted that the fee increases are not significant when
viewed in a broader context. Some cited the value of naturalization
relative to the cost. Others noted that most people must be permanent
residents for five years before they can apply for United States
citizenship and the proposed fee requires saving less than $10 per
month toward that goal. Other examples were also cited, including the
fact that the fee for a petition for a relative, fianc[eacute], or
orphan is a very small part of the total cost of bringing that person
to the United States.
The filing fees proposed and established under this rule are
significantly higher than applicants and petitioners pay today. These
fees, however, are based only on the costs associated with
adjudicating applications.
Several comments suggested that the fee increases were overdue and
should have been implemented long ago. These commenters agreed with
the proposed rule that the fee increases were necessary to increase
the effectiveness of USCIS services. They recommended quick
implementation of this rule so USCIS could begin making the planned
improvements to its operations as soon as possible. As stated in the
proposed rule, the current fee schedule does not generate enough
revenue for USCIS to even process the current volumes of applications
and petitions in a timely manner. As the Director of USCIS stated in
his testimony before Congress on February 14, 2007, USCIS intends to
implement this fee increase in the summer of 2007 so that it can begin
its efforts to reduce average application processing times. This plan
was also stated in the USCIS press release of January 31, 2007. USCIS
plans to begin collecting these new fees in order to begin fully
recovering its costs and obtaining the resources necessary to timely
process applications. Thus, the commenters' suggestions are being
recognized, but they are in staff19135
Specific comments suggested that the application fee for a Petition
for a Nonimmigrant Worker, Form I-129 (Nonimmigrant Worker Petition),
which is filed by businesses seeking to allow aliens to work in the
United States, should be increased. According to these comments,
higher fees should offset or alleviate the stress that these workers
placed on the infrastructure of the United States, increased demand
for governmental services, impact on the American labor market,
reduced opportunities for citizens, and lowered salaries for American
workers. Similarly, some comments suggested that a portion of fees
should reimburse States for providing job training programs.
[[Page 29856]]
Although a number of comments suggested that USCIS increase fees
further it is important to note that the purpose of filing fees is to
only recover the costs associated with providing a benefit or service.
Filing fees are not designed to function like tariffs and generate
general revenue to support broader policy decisions, or like fines to
deter certain behaviors. The filing fees are not intended to influence
public policy in favor of or in opposition to immigration, limit
immigration, support broader infrastructure, or impact costs beyond
USCIS.
Other comments suggested that increasing specific fees, such as for
an Application to Extend/Change Nonimmigrant Status, Form I-539, would
serve as a deterrent to reinstatement applications and, instead, cause
more aliens to remain in the United States longer than their period of
authorized stay.
USCIS considered these suggestions and others and in some cases,
discussed further in this rule, made changes in response to public
comments. These changes though continue to follow the President's FY
2007 Budget which called for USCIS to reform its fee structure, and
the GAO recommendation that USCIS ``perform a comprehensive fee review
to determine the costs to process new immigration applications.'' This
rule is designed to establish fees sufficient to reimburse the full,
necessary, ongoing, and projected costs of processing immigration
benefit applications and petitions and the related operating costs of
USCIS.
While USCIS has authority to collect fees for certain broader costs
of administering the United States' immigration system, it has chosen
to structure the fees to only recover the full cost of operating
USCIS. USCIS believes that this decision is the most consistent with
broader Administration policy on user fees and the intent of Congress
in the enactment of, and amendments to, section 286(m) of the
Immigration and Nationality Act (INA), 8 U.S.C. 1356(m). Accordingly,
USCIS has not changed fees based on these comments.
2. Proposed Fees Are Unreasonably High
The largest number of comments opposed the proposed fee increases
in general terms or highlighted particular applications and petitions
and argued that the proposed fee increases would effectively exclude
aliens generally, or groups of aliens, from immigration benefits and
services. Some suggested that fee increases send the wrong message to
people who are attempting to comply with the immigration benefit
process and United States immigration laws in good faith, and that
higher fees may discourage legal immigration while encouraging aliens
to attempt to enter the United States and work illegally. These
comments reflect another specific position on the larger issues of
immigration law and policy that aliens should be induced to immigrate
to the United States. As noted above in relation to the opposite
position, the purpose of the fee schedule is not to establish policy,
but to recover the costs necessary to operate USCIS. Accordingly, the
final rule does not adjust the fee schedule in response to these
comments.
A portion of these comments argued that the fee increases would
result in a decrease in applications and petitions. Contrary to the
opinions expressed, USCIS records do not reflect any empirical
evidence suggesting a long-term reduction in the demand for
immigration benefits resulting from fee increases. While fees at an
extremely high level could be a factor in whether or not someone files
an application with USCIS, neither past fee increases nor the
incremental increases in this rule begin to approach the level
necessary to have any significant impact on the demand for USCIS
benefits. USCIS acknowledges that short- term increases in
applications and petitions occur after a fee increase has been
announced, followed by short-term decreases in demand immediately
after the fee increases become effective. This fluctuation is a normal
result of an increase in the cost of any service, whether governmental
or private. Generally, applicants and petitioners with the ability to
file do so before fees increase. Individuals logically choose to pay a
lower price for a service if and when available. However, USCIS
records indicate that demand returns to normal shortly after the
effective date of a fee increase. When the Immigration and
Naturalization Service (INS) conducted the last comprehensive fee
review in FY 1998 and fees increased, on an average percentage basis,
more than they increase in this rule, the demand for immigration
benefits remained fairly constant shortly thereafter. In any case,
USCIS fees are generally believed to be only a portion of the total
expenses incurred by a typical applicant.
These comments infer that these temporary fluctuations undercut the
stability of the funding stream to be generated by the proposed fees.
USCIS acknowledges that slight fluctuations will occur and will be
reflected in the funding stream, but these fluctuations are not
significant enough, in the context of the overall USCIS budget, to
adversely affect services.
3. Improve Service, Reduce Inefficiencies
a. Service improvement and fees.
Many comments noted lengthy waiting times to process immigration
benefit applications and petitions and highlighted the need to improve
overall customer service. These comments suggested that, regardless of
whether the proposed fees were justified, applicants and petitioners
should not be asked to pay the full fee increase until USCIS improves
service. Others suggested that even if fees were increased before
service level improvements were made, there should be detailed
commitments to service level improvements to ensure that increased
revenues are used to improve service.
Some comments stated that USCIS has increased fees before with the
promise of enhanced services, but never fully delivered on that
promise. Other comments indicated that the proposed rule does not
outline an overall strategic plan for improvements, with measurable
benchmarks and tangible goals for implementing the needed upgrades, or
a specific timeline or completion schedule to assure interested
parties that these improvements will actually be accomplished. One
commenter complained that customer service and processing backlogs
have not improved enough to justify such a steep fee increase.
These comments illustrate the main distinction between the revised
fee schedule and current one in that the current fee schedule does not
reflect the existing costs of performance. The current fee schedule
does no more than sustain USCIS operations and provide for delivery of
benefits at an unacceptable level. Historically, USCIS balanced
resource requirements to allocate insufficient revenues from a fee
structure that did not recover full costs. The new fee structure is
designed to maintain sufficient capacity to meet appropriate
performance standards and goals, while sustaining performance through
investments to deliver continuous improvements into the foreseeable
future. USCIS acknowledges the commenters' concerns, and believes that
these concerns will be satisfied, at least in part, after
implementation of the new fee structure.
USCIS is required by law to review its fees at least once every two
years. 31 U.S.C. 902(a)(8). USCIS has established a dedicated staff in
its Office of Planning, Budget, and Finance to conduct future
comprehensive analyses. USCIS is firmly committed to seeking
[[Page 29857]]
improved ways of doing business and reengineering processes in
order to contain costs. The new fee structure will enable USCIS to
make improvements that may ultimately help avoid future increases and
possibly reduce costs. Process improvements implemented over the past
several years, as well as projected productivity increases, are taken
into account in the current fee review, keeping fees lower than they
might otherwise have been. Future productivity enhancements will
produce lower costs per unit that will be reflected in future price
adjustments.
The fees are based on the costs necessary to sustain the processing
of applications and petitions. If fees collected remain below
processing costs, the imbalance will, as it has in the past, result in
a backlog. Backlogs mean customers will not receive the benefits and
services for which they have applied in a timely manner. A structural
deficit between costs and fees will also mean USCIS cannot effectively
sustain operations because of insufficient capital to invest in
improvements. Over time, a structural deficit between costs and fees
will create and accelerate the growth of backlogs and deteriorate
service levels. Delays caused by the inability to meet demand
resulting from fees set below cost often have far more impact on the
person than the discrete application or petition fee.
The proposed fee adjustments and this final rule reflect these
concerns. Over the past several years, USCIS received appropriated
funds to reduce processing times and meet the President's goal of a
six-month or less processing time for nearly all immigration benefit
applications and petitions. By the end of FY 2006, the application and
petition backlog had fallen from a high of 3.8 million cases in
January 2004 to less than 10,000 considered under USCIS control. The
total volume of pending cases is currently less than the backlog was
at its height, which shows real and substantial progress.
USCIS has also made many customer service improvements, including,
but not limited to, expanding online capabilities (such as online
filing, change of address and case status updates), INFOPASS
appointments (providing the ability to go online to make, cancel, or
reschedule appointments with a USCIS Immigration Information Officer),
and introducing a broad range of fact sheets to help the public
understand various benefits, eligibility criteria, and USCIS
procedures. These improvements were made prior to the proposed fee
increase. With the revenue generated from the new fee schedule, USCIS
will be able to deliver significant additional improvements. Until
USCIS aligns its fees with costs, however, it will be unable to afford
sufficient capacity to process incoming applications and petitions,
resulting in backlogs.
b. Inefficiency in business-related visas.
Some comments highlighted particular inefficiencies and suggested
that correcting these would mitigate the need for fee increases. An
example of inefficiency mentioned by many commenters was the long
processing delays for employment-based visa categories, including the
immigrant employment-based classifications and the nonimmigrant
classifications such as the temporary employee H nonimmigrant visa,
and the intra-company transferees L nonimmigrant visa.
USCIS acknowledges that it does not always quickly and efficiently
process the Immigrant Petition for Alien Worker, Form I-140 (Alien
Employee Petition) for firms requesting USCIS approval to hire a
foreign worker. Processing delays result from a number of factors that
are beyond the control of USCIS, including extensive Federal Bureau of
Investigation (FBI) name checks and retrogression of petition priority
dates caused by over-subscription of the applicable visa categories.
The solutions suggested by one commenter, however, such as mandatory
processing times, automatic fee refunds, or automatic approval, would
neither improve efficiency nor result in shorter processing time. The
suggestion that delays result in refunds would merely cause more
delays. Employers may use the premium processing service, if
applicable, to obtain faster processing of certain employment-based
petitions and applications, a process that may alleviate the
commenters' concerns.
The national interest is not served and immigration laws are not
complied with by automatically approving immigration benefits for
persons solely as a result of the passage of time. Each applicant or
petitioner must prove his or her eligibility for the benefit sought.
While a backlog still exists, USCIS has achieved an average processing
time for an Alien Employee Petition as of January 2007 of less than
135 days per case, which represents fifteen days faster than five
years ago, but with a much higher current monthly volume. With the
additional USCIS resources from this updated fee schedule, performance
will be enhanced even further.
c. Multiple biometric data requests.
Many commenters pointed to the fact that applicants or petitioners
must provide biometric data more than once. Some commenters considered
the expiration of fingerprints submissions to be inefficient. Others
suggested that it was inefficient for USCIS to again request
fingerprints when they apply for sequential benefit applications.
USCIS agrees that an applicant should not be required to provide
biometric data multiple times for a single application. USCIS is
developing the Biometrics Storage System (BSS) which will allow the
re-use of fingerprints and, if an application or petition has not been
adjudicated within the fifteen month validity period, USCIS will be
able to simply re-submit the stored fingerprints to the FBI, without
any involvement of the applicant or petitioner. See 72 FR 17172 (Apr.
6, 2007) (establishing a new system of records). Also, as a matter of
policy, when an application remains pending, USCIS does not charge the
applicant the biometric fee again because of a processing delay at
USCIS.
In the revised fee structure, the biometric fee is not simply a fee
for biometric collection or the USCIS cost of the applicant or
petitioner appearing at an Application Support Center. The biometric
fee also covers costs associated with the use of the collected
biometrics for FBI and other background checks. Thus, an applicant
will pay the biometric fee whenever he or she files another
application that requires the collection, updating, or use of
biometrics for background checks. At that point, USCIS can verify the
identity of the applicant by comparing the newly collected biometrics
with those previously submitted, providing an important security
enhancement. USCIS believes that this new process may result in some
decreases in costs which may offset the costs of background checks
incorporated into the biometric fee, and has already factored this
impact into the fee structure along with projected efficiency
increases.
d. Petitions for aliens of extraordinary ability or performers.
USCIS received many comments requesting improved efficiency in the
processing of visa petitions for aliens of extraordinary ability in
science, art, education, business, or athletics, and their spouses
and/ or children (the O visa category), or aliens coming to the United
States temporarily to perform at a specific athletic competition or as
a member of a foreign-based entertainment group (the P visa category).
Many O and P petitions are submitted on relatively short schedules,
i.e. the individual/group is scheduled to
[[Page 29858]]
visit the United States in the near future for a specific
event.
These commenters stated that lengthy and uncertain O and P visa
processing periods complicated booking foreign artists for
performances and requested the implementation of a thirty-day maximum
processing period. This issue is not germane to this rule; however,
because of the volume of comments received, a brief response is
provided.
The USCIS receipt notice received by an O and P petitioner after
filing states that the petition will be processed in 30-120 days, but
that time is a standardized estimate for all O and P petitions for
many types of performers and organizations. Still, USCIS does
everything in its control to adjudicate these petitions within 60
days. In spite of this fact, cases may be delayed by a number of
causes that are beyond USCIS control, most commonly a lack of response
to USCIS inquiries by the sponsoring organization, labor unions and
other representatives, and the prospective visa recipient. For
planning purposes, current estimates of various visa classification
processing times and processing dates are posted on the USCIS
website.
USCIS recently published a final rule to permit petitioners to file
O and P nonimmigrant petitions up to one year prior to the need for
the alien's services. 72 FR 18856 (April 17, 2007). Although that rule
will not resolve all of the commenters' concerns, the longer filing
window will better assure O and P petitioners that they will receive a
decision on their petitions in a timeframe that will allow them to
secure the services of the O or P nonimmigrant when such services are
needed. USCIS suggests, however, that the nature of the O and P visa
classifications creates a need to carefully plan performances and book
foreign entertainment acts. Fees collected after publication of this
rule will be used to cover USCIS costs and will assist in more
reliable and consistent adjudication of all applications and
petitions, including O and P visa petitions.
e. Pre-screening applications and petitions for lawful permanent
residence.
One commenter supported the recommendation of the USCIS Ombudsman
to require a comprehensive prescreening of Applications to Register
Permanent Residence or Adjust Status, Form I-485, prior to filing.
Citizenship and Immigration Services Ombudsman, Annual Report to
Congress, 50-55 (June 29, 2006) (Recommendation 27). Recognizing that
adoption of a prescreening process would reduce revenues, the
commenter posited that it would instead promote efficiency and
integrity, and enhance security.
USCIS is committed to a process that handles cases efficiently and
effectively, meeting all quality requirements in a way that protects
the national security and public safety of the United States. USCIS
cannot, however, agree with this recommendation at this time. The
suggestion for ``up-front processing'' is very similar to a process
that came to be known as ``front-desking''--a procedure followed by
the INS in which employees were instructed to review certain
applications in the presence of the applicant to correct facial
deficiencies, incomplete responses or errors before accepting the
application for filing, and not to accept those applications thought
to be statutorily deficient. Front-desking effectively precluded
administrative and judicial review of rejected applications because
there was no formal denial to appeal--only a return of an
uncorrectable document. Reno v. Catholic Social Services, 509 U.S. 43,
61-63 (1993). Legitimation of the concept of up-front processing would
require a fundamental change in the regulations administered by USCIS
and goes well beyond the scope of this rulemaking. USCIS will not
adopt this proposal as a part of this rulemaking.
f. Transformation project and premium processing.
Some comments requested more information on transformation plans
and how premium processing revenues will be spent. Others suggested
that premium processing be expanded. Another commenter suggested that
transformation from a paper to electronic process would create
excessive costs and burdens that would create financial and paperwork
barriers to citizenship.
As required by statute, premium processing revenues are deposited
in the IEFA and will be fully isolated from other revenues and devoted
to the extra services provided to premium processing customers, and to
broader investments in a new technology and business process platform
to radically improve USCIS capabilities and service levels. INA
Section 286(u), 8 U.S.C. 1356(u). USCIS has recognized that its
existing technology has not kept pace with changing demands and
additional requirements placed upon USCIS. Since the previous fee
structure was retrospective and did not include funds for real
investments to sustain and improve USCIS infrastructure, business
choices have been limited to those that can be supported by existing
technology or no technology.
The premium processing fee ($1,000) is statutorily authorized for
employment based applications and petitions. USCIS cannot expand the
premium processing fee or the applications and petitions available for
premium processing beyond the statutory limitations.
USCIS plans to transform the current paper based process into an
electronic adjudicative process. This transformation will allow USCIS
to better detect and deter those who seek to do harm or violate the
laws of the United States, while facilitating benefits processing for
eligible, low-risk persons.
USCIS acknowledges that the transition from a paper-based to an
electronic adjudication system carries with it certain burdens, but
believes the benefits of the new process will significantly outweigh
those costs. The new adjudicative process will enable USCIS to enhance
national security, improve customer service, and increase efficiency
by increasing its ability to share data with immigration partners,
improving security by uniquely identifying individuals, improving
system integrity by creating customer accounts, and providing a single
worldwide case management system. Nonetheless, as some commenters
pointed out, not all applicants will have access to the Internet or
other electronic means of submission. For those individuals, paper
submissions will remain an option.
g. Actions planned to improve efficiency.
USCIS believes that, while sustainability of its operations focused
on continuous improvement is important, so is real and substantive
near-term improvement. USCIS structured the revised fee schedule to
allow it to commit to specific substantial improvements over the next
two years.
USCIS is committed to substantial reductions in processing times by
the end of FY 2008 for four key applications: (1) Application to Renew
or Replace a Permanent Resident Card, Form I-90 (Application for LPR
Card); (2) Application to Register Permanent Residence or Adjust
Status, Form I-485 (Adjustment of Status Application); (3) Immigrant
Petition for Alien Worker, Form I-140 (Alien Employee Petition), the
petition for an employer to sponsor a foreign worker for permanent
residence based on its job offer; and (4) Application for
Naturalization, Form N-400 (Naturalization Application), the petition
to become a United States Citizen through naturalization. These four
applications and petitions represent almost one-third of the USCIS
total workload. By the end of FY 2008,
[[Page 29859]]
USCIS plans to reduce processing times for each of these cases by
two months, from six months to four months (naturalization processing
will be reduced from seven months to five months when the ceremony at
which a person takes the oath of allegiance is included as part of the
process). Thus, applicants and petitioners will see a significant
improvement in the first full fiscal year following these fee
adjustments. Further, as also indicated in the proposed rule, USCIS is
committed to a twenty-percent average reduction in case processing
times by the end of FY 2009, which will extend improvements in
processing times and service delivery across the spectrum of
applications and petitions.
The proposed fee structure commits USCIS to real improvements as it
is not built simply on today's productivity rates, but on anticipated
increases in productivity (four percent for the Adjustment of Status
Application, and two percent for all other products). USCIS is
accountable for these productivity increases in order for fees to
support operations as intended.
Another commenter suggested that hiring more permanent employees
would improve USCIS efficiency. USCIS agrees with the commenter that
sufficient staffing is directly related to the ability to collect
sufficient fees for service as explained in the proposed rule and this
final rule. As presented in the President's FY 2008 Budget, USCIS
plans to add 1,004 Adjudication Officers and support staff. However,
twenty percent of the new staff will be other than permanent
employees. Most of that staff will handle application and petition
volume surges, a critical resource to ensure that the backlog does not
increase due to sudden and unpredictable workload increases. However,
the comment suggests no regulatory changes. Thus, no changes are made
to the final rule.
One commenter questioned how quickly USCIS will be able to
implement all of the resources outlined in the additional resource
requirements. The commenter also questioned whether USCIS took into
consideration ongoing expenses versus one-time expenses. USCIS has
factored into the fee schedule the appropriate start up costs. USCIS
did differentiate one-time costs versus recurring costs in its fee
calculations. For example, one-time costs such as background
investigations and computer equipment for new hires were included in
the FY 2008 costs, but not in the FY 2009 costs. These calculations
are accurately identified in the fee review supporting
documentation.
4. Increases Relative to Time
Some comments suggested that some fees were excessive for certain
applications and petitions relative to the time it takes to process
the application or petition. As mentioned above and in the proposed
rule, the primary basis of the USCIS fee model is the administrative
complexity, which is the amount of time that it takes to process a
particular kind of application or petition (identified as ``Make
Determination'' activity in the proposed rule). The calculation also
factors in other direct costs, such as the cost of manufacturing and
delivering a document when that is part of the processing of a
particular benefit.
In addition to these costs, the fee calculation model factors in
the full costs of USCIS operations, including services provided to
other applicants and petitioners at no charge, overhead costs (e.g.,
office rent, equipment, and supplies) associated with the adjudication
of the application or petition, and other processing costs. These
latter costs include responding to inquiries from the public (``Inform
the Public'' activity), application and petition data capture and fee
receipting (``Intake'' activity), conducting background checks
(``Conduct Interagency Border Inspection System Checks'' activity),
the acquisition and creation of files (``Review Records'' activity),
preventing and detecting fraud (``Fraud Prevention and Detection''
activity), and, when applicable, producing and distributing secure
cards (``Issue Document'' activity) and electronically capturing
applicants' fingerprints, photographs, and signatures (``Capture
Biometrics'' activity). In total, all application and petition fees
include a total of $72 in ``surcharges'' to recover asylum and refugee
costs, and fee waiver and exemption costs.
5. Increases Relative to Other Standards
Many commenters suggested that the fee average or weighted average
fee increases were out of line with, for example, the Social Security
Administration's (SSA) 2007 basic cost of living increase, the
increase in the Gross Domestic Product (GDP), or the federal General
Schedule salary increase. USCIS appreciates the concerns expressed,
but these external indicators of costs are not comparable with USCIS'
costs. For example, SSA's basic cost of living increase is a benefit
increase tied to inflation, whereas the USCIS fees recover all of the
costs of operating USCIS, including enhancements required to meet
congressional mandates, improve efficiency, detect fraud, secure the
immigration system, and to consolidate elements such as federal salary
increases into base costs. The real GDP or ``real gross domestic
product,'' on the other hand, is an estimate of the output of goods
and services produced by labor and property located in the United
States by the United States Department of Commerce Bureau of Economic
Analysis. GDP bears no relation to the cost models that must generate
the fees to be charged by USCIS.
Many commenters stated that the increase in the fee for the
Application for Replacement Naturalization/Citizenship Document, Form
N-565, from $220 to $380, was unreasonable when compared with
replacement of other documentation. Most of these commenters compared
the fee for replacing a citizenship certificate with replacing a
Social Security card, which the Social Security Administration
provides for free, or replacing state documents (e.g. driver's
licenses) that many states provide for a nominal charge.
Replacement of a social security card, driver's license, voter
registration card, or passport is substantially different from
replacement of a certificate of citizenship. USCIS incurs substantial
costs in determining the validity of the naturalization for which the
certificate was issued before it can issue a new certificate. As
stated in the proposed rule and above, this fee schedule is based on
the relative complexity of adjudication of a benefit application and
reflects the average relative cost of adjudication of all such
applications. The fees charged for replacing secure documents reflect
the full costs incurred by USCIS in replacing those documents.
Regardless of the type of change requested, USCIS must obtain the
original records and issue a new certificate after the appropriate
review and decisions. Charging $380 for adjudication of Form N-565 for
an infant may recover more fees than that specific adjudication may
require, however, $380 fails to recover the resources expended to
determine the validity of the more complicated applications such as in
the case of an adult who requires significant background
investigation. Therefore, the Form N-565 fee was not adjusted from
what was proposed.
Other comments stated that some fees should reflect validity
periods with lower fees for benefits with shorter validity periods.
This argument is similar to that advanced by many who advocated higher
fees--that the fees should not be based just on costs, but
[[Page 29860]]
on the real or perceived value of the benefit. USCIS' methodology
is based on the complexity of the adjudication, not the validity
period. USCIS establishes maximum allowable time periods that may pass
between its approval of a benefit and the applicant's receipt of the
benefit based on the type of case and how passage of time influences
the need for updates in the information used to make the
determination. The approval validity period is not designed to
generate revenue through unnecessary repeat filings. USCIS believes
that the current methodology is fair and complies with Federal fee
guidelines. Decreasing the fee for applications for benefits with
shorter validity would only shift costs to other immigration benefit
applications and petitions based on considerations that are not
applicable. The comment will not be adopted.
6. Grandfathering
Some comments recommended phasing in the fee increase over a period
of years, or fixing fees at current levels for those who already
applied for one or more immigration benefits in the past, effectively
grandfathering fees for those who are already in the USCIS system.
Deferring fee increases would directly result in service delays. In
addition, setting fees lower for any class of applicants or
petitioners would merely transfer costs to other applicants. Thus,
USCIS has not incorporated these recommendations.
7. Budget Decisions Necessary To Administer Immigration
Benefits
Many comments highlighted a critical aspect of the fee structure--
operations must be sustainable. The real cost of processing a type of
application or petition is more than the discrete cost of processing a
particular individual case today. It includes the cost of sustaining
operations and making investments to continually improve service
delivery and performance. The proposed fee structure is designed to
meet performance standards and make continuous improvements through
investments in training to ensure a high performance workforce,
facilities to provide services that are more accessible to our
customers, systems to support operations and performance, and
resources to improve quality and performance management. These goals
are consistent with the principles of Office of Management and Budget
(OMB) Circular A-25.
8. Reorganization
Another commenter suggested that efficiency could be improved by
reorganizing USCIS in accordance with the recommendations of the USCIS
Ombudsman. USCIS has recently reorganized its functions and expects
this reorganization to provide greater efficiency once it has gained
traction. See 71 FR 67623. Those expectations were incorporated into
the proposed rule and this final rule.
C. Alternative Sources of Funding
Many comments did not dispute the methodology and costs, but
asserted that applicants and petitioners simply should not be required
to bear the burden of these fee increases. Many pointed to the
benefits of immigration and assimilation and argued that because the
United States benefits as a whole from immigration, as a matter of
public policy immigrants should not bear the entire cost of
processing. Many asserted that USCIS should find ways to keep fees
down, even if it means operating at a deficit. Others suggested
substituting appropriated monies for user fees to offset particular
fees or activities or subsidize general USCIS operations.
1. Appropriated Funds
Many comments recommended that USCIS seek appropriated funds to
close funding gaps, meaning that taxpayers should subsidize particular
applications and petitions, certain processes, activities not directly
related to the adjudication of the particular kind of application or
petition, or fees in general. Some highlighted the public good and
positive impact resulting from immigration, naturalization, or certain
procedures (i.e., background checks) and argued that the public good
merited the use of tax dollars to offset costs. Many comments
suggested that appropriations be used to either subsidize specific
benefit application or petition fees or all fees in general. Some
comments suggested that fees should be the last recourse for funding
immigration services; that is, USCIS should be required to have
exhausted all possible means of seeking appropriated funds before
imposing fee increases. One commenter faulted USCIS for not engaging
Congress to cooperatively work on this issue. Others suggested funds
be appropriated for discrete purposes to offset the cost of a
particular activity associated with case processing or overall
management of USCIS.
Other comments point out that section 286(m) of the INA, 8 U.S.C.
1356(m), authorizes the recovery of the full cost of providing
immigration and naturalization services, including services provided
without charge to many applicants. These comments point out, however,
that section 286(m) does not mandate full cost recovery, and that
USCIS still has the option of seeking appropriations and choosing to
recover less than full cost through user fees. Some commenters urged
support for specific legislation that would alter the fee development
process or affect this specific fee review process.
Finally, one commenter suggested that USCIS use appropriated funds
to fund unusual or atypical expenses from its fee calculation. The
commenter suggested that these infrastructure costs represent an
``investment'' that should not be funded by current immigration and
naturalization applicants and must not be included in the fee
calculation.
These comments go beyond the scope of the regulation and raise
questions of whether Congress should alter the immigration laws of the
United States or appropriate general funds for USCIS. In effect, these
comments suggest that USCIS should take other actions outside the
rulemaking and the authorization for this rulemaking under INA section
286(m), 8 U.S.C. 1356(m).
Law and policy have long supported the proposition that the costs
of providing immigration benefits should be borne by those applying
for those benefits. Thus, in this final rule, USCIS is adopting a fee
schedule to recover its costs through user fees. While it is true that
Congress has enacted intermittent appropriations to subsidize the
operations of USCIS, the President's budget for FY 2008 does not
request such an appropriated subsidy, except specific funds for
expansion of an Employment Eligibility Verification program. Even if
an appropriation were to be requested, receipt of sufficient funds
(without adjusting the fee schedule) to cover the costs of USCIS
operations may be doubtful. USCIS must fund the services it provides
through the legal means at its disposal. Deferring the recovery of
full costs while USCIS explores other funding options will delay
service delivery to applicants and petitioners.
2. Finding Other Revenue Sources
Some comments suggested funding USCIS through fines assessed
against employers who hire aliens who are not authorized to work in
the United States. Other comments suggested a variation on the
methodology, such as charging employers more than individuals or
charging additional fees at the time of naturalization.
USCIS is statutorily barred from using fines assessed against
employers. Unless specified in law, all fines and penalties under the
immigration laws become miscellaneous United States Treasury
[[Page 29861]]
receipts and are deposited into the general fund, not the IEFA. INA
section 286(c), 8 U.S.C. 1356(c). Those additional sources of USCIS
revenue that are authorized, such as the DHS share of certain
supplemental fees collected under section 286(v) of the INA, 8 U.S.C.
1356(v), have been taken into account in USCIS budgeting and fee
setting.
USCIS believes that the methodology used to develop these fees--a
methodology based on the complexity of the specific application or
petition--is the most appropriate process to equitably allocate costs
and provide long-term stable and reliable funding. Part of USCIS'
funding problem has been reliance on temporary funding sources,
including appropriated funding. This new fee schedule will establish a
more stable source of funding. As the number of applications and
petitions increases, USCIS will be better able to respond to
increasing workload changes and will no longer be compelled to
sacrifice customer service or rely on unreliable funding sources.
D. Comments on Specific Benefit Application and Petition Fees
Many comments that suggested that USCIS seek appropriated funds or
other subsidies, or other means to reduce fees from the proposed
levels, also emphasized issues and impacts related to particular
applications and petitions. The fee development methodology is
sensitive to the costs of adjudicating each type of application or
petition based on the complexity of adjudicating it.
1. Naturalization Application
The fee for the Naturalization Application generated a large number
of comments from a wide spectrum of commenters. The proposed rule
would raise this fee from $400 to $675, including the required
biometrics fee, or a 69 percent increase. Many comments highlighted
the public interest in promoting citizenship and recommended reducing
this fee.
USCIS understands the sentiment expressed by the commenters that
becoming a citizen of the United States is an honor to be cherished.
USCIS disagrees with the commenters who suggested that the proposed
fee increase is inconsistent with our tradition of welcoming and
integrating immigrants and that increasing the fee would send the
wrong message to intending citizens.
The fee for a Naturalization Application is established at $595 in
this final rule and properly reflects the intensive scrutiny with
which a request for such an honor should be reviewed. Naturalization
applicants who are initially found eligible must be examined under
oath to assure compliance with the many requirements for citizenship
under the INA including competency in English, knowledge and
understanding of United States Government and history, physical
presence and maintenance of resident status in the United States, and
facts and conduct reflecting their moral character and attachment to
the United States Constitution and law. 8 U.S.C. 1401 et seq.
In adjudicating some naturalization applications, USCIS
adjudicators must resolve complex subsidiary applications for certain
exemptions, such as the Application to Preserve Residence for
Naturalization Purposes, Form N-470, or the Medical Certification for
Disability Exceptions, Form N-648 (which is processed and adjudicated
without charge). Further, criminal and national security record checks
are required for naturalization applications and may require the
involvement of numerous USCIS personnel. In addition, the
naturalization adjudication process may require multiple interviews,
and solicitation and consideration of additional evidence bearing on
eligibility. Finally, in the event of an adverse decision on the
application or petition, the applicant is entitled to request a new
hearing by a different adjudicator. All of these factors are reflected
in the fee charged to recover the cost of adjudication.
Two factors in this final rule mitigate the Naturalization
Application fee increase. First, the final rule maintains the current
USCIS policy of permitting naturalization applicants to request an
individual fee waiver. In determining inability to pay, USCIS officers
consider all factors, circumstances, and evidence supplied by the
applicant including age, disability, household income, and
qualification within the past 180 days for a federal means tested
benefit, as well as other factors associated with each specific case.
For those applicants not granted a fee waiver, USCIS will charge a fee
of $595 for processing naturalization applications. Additionally, the
cost of fingerprints has been reduced slightly, resulting in a
decreased overall cost for naturalization applicants. Accordingly,
USCIS has determined that the effort and resources expended to process
Naturalization Applications justifies this level of fee increase.
2. Application To Register Permanent Residence or Adjust Status
Many comments emphasized the overall size of the proposed increase
for the Adjustment of Status Application fee from $325 to $905, or 178
percent. Most of the proposed fee increase for the Form I-485 was
driven by the packaging or ``bundling'' of related benefits with no
separate fee. As indicated in the proposed rule, factoring in separate
fees, applicants typically pay for additional services related to the
Form I-485 for which they will no longer pay separately. In this rule,
after consolidating the fees for the Adjustment of Status Application
and the requests for interim benefits that previously required
additional fees, the increase in the fee from $865 to $1,010 (17%),
including the biometric fee, is significantly below the average
increase for all fees.
A few comments suggested that incorporating the fee for the
Application for Employment Authorization, Form I-765, (Application for
EAD) and the fee for the Application for Travel Document, Form I-131,
(Application for Travel Document) into the Adjustment of Status
Application should only be an option. USCIS issues an Employment
Authorization Document (EAD) to the alien after it approves an
Application for Employment Authorization. An alien submits an
Application for Travel Document to apply for a travel document,
reentry permit, refugee travel document, or advance parole. EAD and
travel documents are commonly referred to as ``interim benefits.''
These commenters suggested that children may not need or desire
travel documents or work authorization, so the fee for an Adjustment
of Status Application should be consequently reduced for a child or a
family. Other comments suggested that, like refugees, asylees should
not be required to pay the portion of the new Adjustment of Status
Application fee attributable to the interim benefits, because
eligibility to work is incident to their status. Finally, several
commenters suggested that USCIS apply the fee consolidation for the
Adjustment of Status Application, Application for EAD, and Application
for Travel Document to all currently pending Adjustment of Status
Applications.
USCIS has made no adjustment in this final rule as a result of
these comments. USCIS determined that a change in the fee schedule was
not justified because a type of applicant mentioned by the commenters
may not need or want interim benefits. Neither does this rule adopt
the suggestion to process Applications for EADs or Applications for
Travel Documents for currently pending Adjustment of Status
Applications without fee. USCIS records indicate that most applicants
who
[[Page 29862]]
initially choose not to apply for an EAD or travel documents soon
do so because they find that they need interim benefits almost
immediately. As for asylees and refugees, asylees are authorized to
work, but USCIS records indicate that most asylees and refugees obtain
an EAD to provide to employers as readily accepted proof that they are
authorized to work in the United States. The fees collected by USCIS
for EAD Applications fund the costs incurred by USCIS for issuing
EADs. USCIS incurs costs for adjudicating the Application for EAD
which is a different issue from an asylee's authorization to work
incident to asylee status. Further, although refugees are not required
to submit a fee for their initial Adjustment of Status Application,
they are required to pay the fee for an Application for EAD or for the
Application for Travel Document to request a refugee travel document.
Providing multiple fee options based on who typically requests interim
benefits, when records indicate that the vast majority of applicants
do request interim benefits, would be too complicated and costly for
USCIS to administer. Applicants with a pending Adjustment of Status
Application who did not pay a fee that incorporates the cost of an
Application for EAD and an Application for Travel Document must
continue to file separate interim benefit applications with the
appropriate fee for each service.
A number of comments pointed out that the packaging of these
services and the fee increase means that the total fees a family will
pay for concurrently filed Adjustment of Status Applications will
increase substantially, and argued for some form of family cap on the
total fee to be collected. These commenters pointed out that the child
fee level under the fee schedule was almost one-third lower than the
adult fee, but the $100 difference under the proposed fees represents
only an eleven percent differential between an adult's and a child's
Adjustment of Status Application fees. These comments added that this
effect exacerbated the impact of the fee changes on families. Other
commenters were concerned that, while refugees are charged no fee for
their Adjustment of Status Applications, the proposed rule provides
that asylees must pay a fee for an Adjustment of Status Application
and suggested that this treatment was disparate.
USCIS considered the suggestion that it institute a maximum fee for
a family where several members submit simultaneous Adjustment of
Status Applications (family cap). USCIS analyzed a number of scenarios
to determine at what level a famil
