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Adjustment of the Appeal and Motion Fees

AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: On March 1, 2003, the Immigration and Naturalization Service
(Service) transferred from the Department of Justice (DOJ) to the
Department of Homeland Security (DHS) pursuant to the Homeland Security
Act of 2002 (Pub. L. 107-296). The adjudications functions transferred
to the U.S. Citizenship and Immigration Services (USCIS). This document
proposes to raise the fee for filing appeals of, and motions to reopen
or reconsider, any decision under the immigration laws in any type of
proceeding other than those described at 8 CFR 1003.1(b), over which
the Board of Immigration Appeals (BIA) has appellate jurisdiction.
This proposed rule applies to fees for appeals and motions relating
to the types of cases under the jurisdiction of the Administrative
Appeals Office (AAO). The AAO is an appellate office of USCIS. The BIA
remains a component of DOJ, and has appellate jurisdiction over the
orders of immigration judges, denials of relative immigrant visa
petitions (Form I-130), and decisions involving administrative fines
and penalties. Appeals from denials of all other types of applications
and petitions, and any subsequently filed motions, are under the
jurisdiction of the AAO.
In this proposed rule, the fees, which are deposited into the
Immigration Examinations Fee Account (IEFA), are being raised from $110
to $385 to recover the full costs associated with the processing of an
appeal or motion to reopen or motion to reconsider. Federal statutes
and guidelines authorize USCIS to establish and collect fees to recover
the full cost of processing immigration benefit applications, rather
than supporting these services with tax revenue.

DATES: Written comments must be submitted on or before December 30,
2004.

ADDRESSES: You may submit comments, identified by Docket No. DHS-2004-
0021, by one of the following methods:
EPA Federal Partner EDOCKET Web Site: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.epa.gov/feddocket.
Follow instructions for submitting comments on the Web site.

The Department of Homeland Security has joined the Environmental
Protection Agency (EPA) online public docket and comment system on its
Partner Electronic Docket System (Partner EDOCKET). The Department of
Homeland Security and its agencies (excluding the United States Coast
Guard and Transportation Security Administration) will use the EPA
Federal Partner EDOCKET system. The USCG and TSA [legacy Department of
Transportation (DOT) agencies] will continue to use the DOT Docket
Management System until full migration to the electronic rulemaking
federal docket management system in 2005.
Federal eRulemaking Portal: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov.

Follow the instructions for submitting comments.
E-mail: rfs.regs@dhs.gov. When submitting comments
electronically, please include Docket No. DHS-2004-0021 in the subject
line of the message.
Mail: The Director, Regulatory Management Division, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529. To
ensure proper handling, please reference Docket No. DHS-2004-0021 on
your correspondence. This mailing address may also be used for paper,
disk, or CD-ROM submissions. Hand Delivery/Courier: U.S. Citizenship and Immigration
Services, Department of Homeland Security, 111 Massachusetts Avenue,
NW., 3rd Floor, Washington, DC 20529. Contact Telephone Number (202)
514-3048.
Instructions: All submissions received must include the agency name
and Docket No. DHS-2004-0021 for this rulemaking. All comments received
will be posted without change to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.epa.gov/feddocket,

including any personal information provided.
Docket: For access to the docket to read background documents or
comments received, go to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.epa.gov/feddocket You may also access the Federal eRulemaking Portal at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov.

Submitted comments may also be inspected at the Director, Regulatory
Management Division, U.S. Citizenship and Immigration Services,
Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd
Floor, Washington, DC 20529. To ensure proper handling, please
reference CIS No. 2245-02 on your correspondence.

FOR FURTHER INFORMATION CONTACT: Paul Schlesinger, Director, Office of
Budget, U.S. Citizenship and Immigration Services, 20 Massachusetts
Avenue, NW., 4th Floor, Washington, DC 20529, telephone (202) 272-1930.

SUPPLEMENTARY INFORMATION:

What Legal Authority Does DHS Have To Charge Fees?

A. Departments of Commerce, Justice, and State, the Judiciary, and
Related Agencies Appropriation Acts of 1989

Section 209 of the Departments of Commerce, Justice, and State, the
Judiciary, and Related Agencies Appropriation Act, 1989, Public Law
100-459, section 209(a), 102 Stat. 2186, 2203 (October 1, 1988), 8
U.S.C. 1356(m), authorizes DHS to prescribe and collect fees to recover
the cost of providing certain immigration and naturalization benefits.
That law also authorized the establishment of the IEFA in the Treasury
of the United States. All revenue from fees collected for immigration
and naturalization benefits are deposited in the IEFA and remain
available to provide immigration and naturalization benefits and to
provide for the collection, safeguarding, and accounting for fees. 8
U.S.C. 1356(n).

B. The Independent Offices Appropriation Act, 1952

DHS also employs the authority granted by the Independent Offices
Appropriation Act, 1952 (IOAA), 31 U.S.C. 9701, commonly referred to as
the ``User Fee Statute,'' to develop its fees. The IOAA directs federal
agencies

[[Page 69547]]

to identify services provided to unique segments of the population and
to charge fees for those services, rather than supporting such services
through general tax revenues. The IOAA states that ``[i]t is the sense
of Congress that each service or thing of value provided by an agency *
* * to a person * * * is to be self-sustaining to the extent
possible.'' 31 U.S.C. 9701(a).
The IOAA further provides that charges for such services or things
of value should be fair and based on ``(A) the costs to the Government;
(B) the value of the service or thing to the recipient; (C) public
policy or interest served; and (D) other relevant facts.'' 31 U.S.C.
9701(b).

C. The Chief Financial Officers Act of 1990

DHS must also conform to the requirements of the Chief Financial
Officers Act of 1990 (CFO Act), Public Law 101-576, 104 Stat. 2838
(1990). Section 205(a) of the CFO Act, amending 31 U.S.C. 902, requires
each agency's Chief Financial Officer 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.'' Public Law 101-576, 104 Stat.
2838 (1990) at 2844, 31 U.S.C. 902(a)(8).

What Federal Cost Accounting and Fee Setting Standards and Guidelines
Were Used in Developing the Proposed Fee Changes?

A. Office of Management and Budget (OMB) Circular No. A-25, User
Charges

When developing fees for special benefits, DHS adheres to the
principles contained in OMB Circular No. A-25, Revised, User Charges
(1993). OMB Circular No. A-25 states at Section 6, that as a general
policy a ``user charge * * * will be assessed against each identifiable
recipient for special benefits derived from Federal activities beyond
those received by the general public.''
The guidance contained in OMB Circular No. A-25 is applicable to
the extent that it is not inconsistent with any federal statute. For
example, specific legislative authority to charge fees for special
benefits takes precedence over OMB Circular No. A-25. Specifically,
section 4(b) provides ``where a statute prohibits the assessment of a
user charge on a service or addresses an aspect of the user charge
(e.g., who pays the charge; how much is the charge; where collections
are deposited), the statute shall take precedence over the Circular.''
When a statute does not address issues of how to calculate fees or what
costs to include in the fee calculation, federal agencies must follow
the principles and guidance contained in OMB Circular No. A-25 to the
fullest extent allowable. The guidance directs federal agencies to
charge the ``full cost'' of providing benefits when calculating fees
that provide a special benefit to recipients. Section 6(d) of OMB
Circular No. A-25 defines ``full cost'' as including ``all direct and
indirect costs to any part of the Federal Government of providing a
good, resource, or service.'' These 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;
(c) Management and supervisory costs; and
(d) The costs of enforcement, collection, research, establishment
of standards, and regulation.
Finally, section 6(d)(1)(e) states that ``[f]ull cost shall be
determined or estimated from the best available records of the agency,
and new cost accounting systems need not be established solely for this
purpose.''

B. Federal Accounting Standards Advisory Board Statement of Federal
Financial Accounting Standards No. 4: Managerial Cost Accounting
Concepts and Standards for the Federal Government

When developing fees for services, DHS also adheres to the cost
accounting concepts and standards recommended by the Federal Accounting
Standards Advisory Board (FASAB). The FASAB was established in 1990,
and its purpose is to recommend accounting standards for the Federal
Government. The FASAB 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, as
will be discussed later. Id. at 36-42.

How Are the Adjudications of Immigration Benefit Applications Funded
and Supported?

Fees collected from immigration benefit applications are used to
fund the full costs of processing immigration benefit applications.
Fees deposited into the IEFA have been the primary source of funding
for the processing of immigration benefit applications, and generally
have replaced the annual appropriation that was received for such
services.

How Were the Unit Cost and Proposed Fees for Filing an Appeal or Motion
Determined?

A. Insufficiency of the Current Fees

Since 1989, the fees for the vast majority of immigration benefit
applications have increased more than threefold based on an improved
cost accounting methodology as well as a general rise in resource
requirements commensurate with the mission to provide immigration
information and benefits for USCIS customers in a timely, accurate,
consistent, courteous, and professional manner.
However, the current appeal and motion fees of $110 have neither
been reviewed nor adjusted since 1989. In addition, recent performance
data indicates that the processing time for an appeal or motion did not
meet the President's 5-year goal of processing immigration benefit
applications in 6 months or less due, in large part, to staffing
shortfalls.
A review to adjust appeal and motion fees was not conducted in the
past given the low workload volume. However, recent data indicates a
significant and steady increase of 12% in appeal and motion filings
from 1993 to 2002. Thus, USCIS deemed it was reasonable and necessary
to perform a fee review of the appeal and motion process to ensure full
compliance with applicable federal law and user fee guidance by
recovering the full costs of appeal and motion filings.

B. The Appeal and Motion Process

When a petition or application is denied or revoked by USCIS, in
most cases the applicant or petitioner may appeal that decision to a
higher authority. The AAO has appellate jurisdiction over 66 types of
petitions and applications. If an applicant or petitioner receives an
appealable denial notice, the denial notice will advise the applicant
or petitioner of his or her right to appeal to the AAO or BIA,
whichever is appropriate; provide the applicant or petitioner with the
appropriate appeal form; and include instructions on any

[[Page 69548]]

applicable time limit for filing an appeal.
There are strict deadlines that must be met to file an appeal
properly. In addition, only the person that submitted the original
application or petition may file the appeal. For example, if a U.S.
employer petitions for an alien employee, only the U.S. employer may
appeal the denial. If the AAO has jurisdiction over the decision, the
notice of appeal must be filed on Form I-290B, Notice of Appeal to the
Administrative Appeals Unit (AAU). The appeal, as well as the
accompanying fee, must be filed with the office that made the original
decision to deny the application or petition. The applicant or
petitioner may file a brief written explanation in support of an
appeal. After review, the AAO may agree with the applicant or
petitioner and change the original decision, disagree with the
applicant or petitioner and affirm the original decision, or send the
matter back to the originating office for further action. Only one
appeal may be filed for each denial or revocation; there is no further
administrative appellate review of an AAO decision.
In addition to the right to appeal (in which the applicant or
petitioner asks a higher authority to review a denial), the applicant
or petitioner may file a motion to reopen the case or a motion to
reconsider the denial with the office that made the unfavorable
decision, such as the field office or AAO. By filing these motions, the
applicant or petitioner may ask the office to reexamine or reconsider
its decision. A motion to reopen must state the new facts that are to
be provided in the reopened proceeding and must be accompanied by
affidavits or other documentary evidence per 8 CFR 103.5(a)(2). Under 8
CFR 103.5(a), a motion to reconsider must establish that the decision
was based on an incorrect application of law or USCIS policy, and
further establish that the decision was incorrect based on the evidence
of record at the time the initial decision was issued. Any motion to
reopen or reconsider must be filed with the correct fee within 30 days
of the decision.
Form I-290B is used to appeal decisions issued by adjudication
officers located at DHS service centers and district offices. Appeals
and motions require approximately the same amount of effort, on
average, according to discussions with AAO management. The core work of
writing and editing performed at the AAO is very labor intensive, given
the three full days it requires to process an average appeal/motion
case.

C. Methodology

In Fiscal Year 2003, KPMG Consulting was hired to provide an
independent fee review as well as to ensure adherence to applicable
federal law and fee guidance. The fee review identified the full costs
of processing appeals and motions and the estimated completion volumes
over the Fiscal Year 2003/2004 biennial time period. The full cost
determination included the labor-intensive activities involved in
application logistics, legal research, decision writing, and decision
review. The full cost determination also included the staffing
necessary to meet the President's 5-year goal of processing immigration
benefit applications in 6 months or less.

D. Basis for the Proposed Fees

The unit cost of $382.98 was determined by dividing the full costs
of processing appeal/motion cases associated with the FY 2003/2004
biennial time period ($13,021,582) by the FY 2003/2004 completion
volumes (34,000). The time required to process an average appeal versus
an average motion case is essentially the same. Therefore, their
respective unit costs are equal.
The table below identifies the unit cost of $382.98 and the
proposed fee of $385.

Unit Cost and Proposed Fee Calculations
------------------------------------------------------------------------
FY 2003/2004
------------------------------------------------------------------------
Appeal/Motion Processing Costs.......................... $13,021,582
Appeal/Motion Completion Volume......................... 34,000
Appeal/Motion Unit Cost................................. 382.98
Rounding Adjustment..................................... 2.02
Proposed Appeal/Motion Fee.............................. 385.00
------------------------------------------------------------------------

This rule also clarifies that the fee amount of $385 also applies
when an appeal is filed by, or on behalf of, two or more aliens and the
two aliens are covered by one decision. In so doing, it corrects a
transcription error in the Code of Federal Regulations in 1989 that
failed to amend the fee amount from $50 to $110 for two or more aliens
when the aliens are covered by one decision when the base fee (for one
alien) was raised from $50 to $110, as provided in the final rule dated
April 4, 1989 (54 FR 13513). The failure resulted in an unintended
discrepancy between the base fee, and the fee for two or more aliens
when the aliens are covered by one decision. Notwithstanding this
transcription error, affected aliens have been properly charged, and
the Service as well as USCIS have collected the correct fee since the
1989 amendment. The form instructions also reflected the proper fee
amount. This rule corrects the discrepancy in 8 CFR 103.7(b)(1) and
brings this fee as properly amended ($50 to $110) from $110 to $385 so
that both fees are now equal as intended.
Finally, this proposed rule also makes a conforming change to 8 CFR
103.5(a)(1)(iii) to replace an obsolete reference to a withdrawn form,
Form I-290A, with a reference to Form I-290B.

Does USCIS Have the Authority To Waive Fees on a Case-By-Case Basis?

Yes, USCIS has the authority to waive fees on a case-by-case basis
pursuant to 8 CFR 103.7(c).

Regulatory Flexibility Act

DHS has reviewed this regulation in accordance with 5 U.S.C.
605(b), and by approving it, DHS has determined that this rule will not
have a significant economic impact on a substantial number of small
entities since a majority of motions and appeals are submitted by
individuals and not small entities as that term is defined in 5 U.S.C.
601(6).
DHS acknowledges, however, that some small entities, particularly
those filing appeals of and/or motions to review denials of business-
related applications and petitions, such as the Form I-140, Immigration
Petition for Alien Worker, Form I-526, Immigrant Petition for Alien
Entrepreneur, and Form I-829, Petition for Entrepreneur to Remove
Conditions, may be affected by this rule. USCIS does not collect data
on the size of the businesses filing appeals and/or motions related to
employment based petitions, and therefore does not know the precise
number of small businesses that may be affected by this rule (as the
majority of petitions are filed by individuals). USCIS projects the
following number of denials for business-related petitions for the
Fiscal Year 2003/2004 biennial period:
Form I-140, Immigrant Petition for Alien Worker (35,866 denials);
Form I-526, Immigrant Petition by Alien Entrepreneur (217 denials);
Form I-829, Petition by Entrepreneur to Remove Conditions (174
denials).
Although this volume represents the total number of denials, it
does not represent the total number of motions/appeals filed on these
petitions which would be far less given that the number of motions/
appeals filed by individuals and businesses totaled only 34,000 in the
Fiscal Year 2003/2004 biennial period. However, even if all of the
motions/appeals were filed by small businesses, the resulting degree of
economic impact would not require a

[[Page 69549]]

Regulatory Flexibility Analysis to be performed.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by state, local and
tribal governments, in the aggregate, or by the private sector of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Executive Order 12866

This rule is considered by DHS to be ``significant regulatory
action'' under Executive Order 12866, section 3(f), Regulatory Planning
and Review. Accordingly, this rule has been submitted to the Office of
Management and Budget (OMB) for review. DHS has assessed both the costs
and benefits of this rule as required by section 1(b)(6) of Executive
Order 12866 and has made a determination that, although increasing the
fee to $385 will increase the cost to the individual applicant and/or
petitioner, USCIS must establish and collect fees to recover the full
cost of processing immigration benefit applications, rather than
supporting these services with tax revenue. There are no identifiable
alternatives associated with this fee increase. The implementation of
this rule also will provide USCIS with an additional $6.7 million in FY
2005 over the fee revenue that would be collected under the current fee
structure. If USCIS does not adjust the current fees to recover the
full costs of processing immigration benefit applications, the backlog
will likely increase. The revenue increase is based on USCIS costs and
projected volumes that were available at the time of this rule.

Executive Order 13132

This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, DHS has determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.

Executive Order 12988: Civil Justice Reform

This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109
Stat. 163 (1995), all Departments are required to submit to OMB, for
review and approval, any reporting or recordkeeping requirements
inherent in a rule. This rule does not impose any new reporting or
recordkeeping requirements under the Paperwork Reduction Act. This rule
proposes that the fees for motions and appeals be increased. Since an
increase of these fees will increase the cost burden on the public, DHS
will submit the required Paperwork Reduction Change Worksheet (OMB-83C)
to the Office of Management and Budget (OMB) reflecting the new fees
and cost burdens on the public. It should also be noted that changes to
the fees require changes to the application form (Form I-290B) to
reflect the new fees. USCIS will submit a notification to OMB with
respect to any such changes.

List of Subjects in 8 CFR Part 103

Administrative practice and procedure, Authority delegations
(government agencies), Freedom of information, Privacy, Reporting and
recordkeeping requirements, Surety bonds.
Accordingly, part 103 of chapter I of title 8 of the Code of
Federal Regulations is proposed to be amended as follows:

PART 103--POWERS AND DUTIES; AVAILABILITY OF RECORDS

1. The authority citation for part 103 continues to read as
follows:

Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304,
1356; 31 U.S.C. 9701; Public Law 107-296, 116 Stat. 2135 (6 U.S.C. 1
et seq.); E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166;
8 CFR part 2.

2. In Sec. 103.5(a)(1)(iii), the introductory text is revised to
read as follows:


Sec. 103.5 Reopening or reconsideration.

(a) * * *
(1) * * *
(iii) Filing Requirements--A motion shall be submitted on Form I-
290B and may be accompanied by a brief. It must be:
* * * * *


Sec. 103.7 [Amended]

3. In Sec. 103.7(b)(1):
a. The entry for ``Form I-290B'' is amended by revising the fee
``$50'' to read: ``$385.00'', and by revising the fee ``$110.00'' to
read: ``$385.00''; and
b. The entry for ``Motion'' is amended by revising the fee ``$110''
to read: ``$385'', wherever that fee appears in the entry.

Dated: November 18, 2004.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 04-26370 Filed 11-29-04; 8:45 am]



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