|
---usaia.org, since 1996, helped thousands of people 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. ----------------------------------------------------------------------- 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: 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. not be charged a fee for submitting the Petition for Amerasian, Widow(er), or Special Immigrant, Form I-360. 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. ---------------------------------------------------------------------------------------------------------------- Current Proposed Form No. Description fees fees Final fees ---------------------------------------------------------------------------------------------------------------- I-90.................................. Application to Replace Permanent $190 $290 $290 Resident Card. I-102................................. Application for Replacement/ 160 320 320 Initial Non-immigrant Arrival- Departure Record (I-94). I-129................................. Petitions for a Nonimmigrant 190 320 320 Worker. I-129F................................ Petition for Alien 170 455 455 Fianc[eacute](e). I-130................................. Petition for Alien Relative...... 190 355 355 I-131................................. Application for Travel Document.. 170 305 305 I-140................................. Immigrant Petition for Alien 195 475 475 Worker. I-191................................. Application for Advance 265 545 545 Permission to Return to Unrelinquished Domicile. I-192................................. Application for Advance 265 545 545 Permission to Enter As a Nonimmigrant. I-193................................. Application for Waiver of 265 545 545 Passport and/or Visa. I-212................................. Application for Permission to 265 545 545 Reapply for Admission into the United States After Deportation or Removal. I-360................................. Petition for Amerasian, 190 375 375 Widow(er), or Special Immigrant. I-485................................. Application to Register Permanent 325 905 930 Residence or Adjust Status. I-526................................. Immigrant Petition by Alien 480 1,435 1,435 Entrepreneur. I-539................................. Application to Extend/Change 200 300 300 Nonimmigrant Status. I-600/I-600A.......................... Petition to Classify Orphan as an 545 670 670 Immediate Relative/Application for Advance Processing or Orphan Petition. I-601................................. Application for Waiver of Grounds 265 545 545 of Inadmissibility. I-612................................. Application for Waiver of the 265 545 545 Foreign Residence Requirement. I-687................................. For Filing Application for Status 255 710 710 as a Temporary Resident. I-690................................. Application for Waiver of 95 185 185 Excludability. I-694................................. Notice of Appeal of Decision..... 110 545 545 I-695................................. Application for Replacement 65 130 130 Employment Authorization or Temporary Residence Card. I-698................................. Application to Adjust Status from 180 1,370 1,370 Temporary to Permanent Resident. I-751................................. Petition to Remove Conditions on 205 465 465 Residence. I-765................................. Application for Employment 180 340 340 Authorization. I-817................................. Application for Family Unity 200 440 440 Benefits. I-824................................. Application for Action on an 200 340 340 Approved Application or Petition. I-829................................. Petition by Entrepreneur to 475 2,850 2,850 Remove Conditions on Residence. I-881................................. NACARA--Suspension of Deportation 285 285 285 or Application for Special Rule Cancellation of Removal. I-914................................. Application for T Nonimmigrant 270 0 0 Status. N-300................................. Application to File Declaration 120 235 235 of Intention. N-336................................. Request for Hearing on a Decision 265 605 605 in Naturalization Procedures. N-400................................. Application for Naturalization... 330 595 595 N-470................................. Application to Preserve Residence 155 305 305 for Naturalization Purposes. N-565................................. Application for Replacement of 220 380 380 Naturalization Citizenship Document. N-600................................. Application for Certification of 255 460 460 Citizenship. N-600K................................ Application for Citizenship and 255 460 460 Issuance of Certificate under Section 322. Biometric Services............... 70 80 80 ---------------------------------------------------------------------------------------------------------------- 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] --------------------------------------------------------------------------- The comments ranged from strongly supportive of the increased fees to strongly critical. Many comments provided critiques of the methodology and the proposed fee schedule; some suggested alternative methods and funding sources. USCIS also invited the public to access the commercial software utilized in executing the budget methodology and developing the proposed rule to facilitate public understanding of the fee modeling process explained in the supporting documentation. 72 FR 4889. USCIS received no requests for such access to the modeling program. On February 14, 2007, the House Committee on the Judiciary, Subcommittee on Immigration, Citizenship, Refugees, Border Security, [[Page 29855]] and Immigration Law heard testimony from the USCIS Director on the fee proposal during the public comment period. USCIS has included an unofficial transcript of that hearing in the docket. See, Proposal to Adjust the Immigration Benefit Application and Petition Fee Schedule, 110th Congress, 1st Sess. (Feb. 14, 2007). USCIS leadership met with stakeholders and conducted ``question and answer'' sessions during the public comment period at various cities throughout the United States, including: Washington, DC.; Los Angeles, California; New York, New York; Chicago, Illinois; Detroit, Michigan; Boston, Massachusetts; San Francisco, California; San Jose, California; Dallas, Texas; Phoenix, Arizona; and Denver, Colorado. Participants were encouraged to submit written comments on the rule. USCIS considered the comments received, the congressional hearing transcript, the content of the public meetings, and all other materials contained in the docket in preparing this final rule. Throughout the comment period, USCIS conducted a ``rolling'' review process. Comments were reviewed as soon as practical after receipt and re-reviewed in light of subsequent comments. The review process was very resource intensive and it permitted USCIS to develop a continuous understanding of the issues presented and maturation of consideration of the issues most commonly presented. A number of comments were not relevant to the substance of the proposed rule and criticized the rule for not addressing other immigration law issues. Many commenters suggested changes in the substantive regulations implementing the immigration laws by USCIS, United States Customs and Border Protection (CBP), United States Immigration and Customs Enforcement (ICE), and other agencies. These comments are beyond the scope of this rulemaking. The final rule does not address comments seeking changes in United States statutes, changes in regulations or applications and petitions unrelated to or not addressed by the proposed rule, changes in procedures of other components within the Department of Homeland Security (DHS) or other agencies, or the resolution of any other issues not within the scope of the rulemaking or the authority of DHS. The public may also review any item in the docket upon request by contacting USCIS through the contact information listed in this rule. A. General Comments Numerous comments supported the rule, although many of those were qualified by expectations that the fee increase will result in better service. Many of these comments emphasized that the costly delays in case processing are far more expensive to applicants and petitioners than the cost of the discrete filing fee. Others emphasized that filing fees are often a small portion of the total cost incurred by an individual or family immigrating to the United States. In addition, many comments criticized the level of fees and the amount of the fee increase. A significant number of comments criticized the proposed fee schedule, suggested that the fee increase would impede immigration, or argued that specific fees should not be increased at all or not by the amount proposed. Many commenters disagreed with the budget decision to fund USCIS entirely from fees and argued that USCIS should seek an appropriation from Congress. B. Relative Amount of Fees A significant number of commenters argued that the proposed fees were too low. Some expressed general concerns about immigration levels. Others argued that fees should be high enough to cover all immigration related costs, not simply application and petition processing and related USCIS costs, so taxpayers are not asked to pay for someone entering, residing, or seeking services in the United States. 1. Recovery of Additional Costs and Enhancements Many comments suggested that even greater increases could be used to further improve customer service, stating that this result would reduce the perceived need for an individual to seek the assistance of an attorney to understand and navigate the immigration benefits application and petition process. Other comments suggested that fees should not be based on USCIS' costs of administration, but on the value of the benefit received by the applicant (e.g., United States citizenship). Additionally, some comments pointed out that many aliens make large payments to those who help them enter the United States illegally, suggesting that this demonstrated the willingness to pay more to enter and remain in this country legally or illegally. Some comments supporting the proposed fees, or even higher increases, asserted that the fee increases are not significant when viewed in a broader context. Some cited the value of naturalization relative to the cost. Others noted that most people must be permanent residents for five years before they can apply for United States citizenship and the proposed fee requires saving less than $10 per month toward that goal. Other examples were also cited, including the fact that the fee for a petition for a relative, fianc[eacute], or orphan is a very small part of the total cost of bringing that person to the United States. The filing fees proposed and established under this rule are significantly higher than applicants and petitioners pay today. These fees, however, are based only on the costs associated with adjudicating applications. Several comments suggested that the fee increases were overdue and should have been implemented long ago. These commenters agreed with the proposed rule that the fee increases were necessary to increase the effectiveness of USCIS services. They recommended quick implementation of this rule so USCIS could begin making the planned improvements to its operations as soon as possible. As stated in the proposed rule, the current fee schedule does not generate enough revenue for USCIS to even process the current volumes of applications and petitions in a timely manner. As the Director of USCIS stated in his testimony before Congress on February 14, 2007, USCIS intends to implement this fee increase in the summer of 2007 so that it can begin its efforts to reduce average application processing times. This plan was also stated in the USCIS press release of January 31, 2007. USCIS plans to begin collecting these new fees in order to begin fully recovering its costs and obtaining the resources necessary to timely process applications. Thus, the commenters' suggestions are being recognized, but they are in line with original plans of USCIS. Specific comments suggested that the application fee for a Petition for a Nonimmigrant Worker, Form I-129 (Nonimmigrant Worker Petition), which is filed by businesses seeking to allow aliens to work in the United States, should be increased. According to these comments, higher fees should offset or alleviate the stress that these workers placed on the infrastructure of the United States, increased demand for governmental services, impact on the American labor market, reduced opportunities for citizens, and lowered salaries for American workers. Similarly, some comments suggested that a portion of fees should reimburse States for providing job training programs. [[Page 29856]] Although a number of comments suggested that USCIS increase fees further it is important to note that the purpose of filing fees is to only recover the costs associated with providing a benefit or service. Filing fees are not designed to function like tariffs and generate general revenue to support broader policy decisions, or like fines to deter certain behaviors. The filing fees are not intended to influence public policy in favor of or in opposition to immigration, limit immigration, support broader infrastructure, or impact costs beyond USCIS. Other comments suggested that increasing specific fees, such as for an Application to Extend/Change Nonimmigrant Status, Form I-539, would serve as a deterrent to reinstatement applications and, instead, cause more aliens to remain in the United States longer than their period of authorized stay. USCIS considered these suggestions and others and in some cases, discussed further in this rule, made changes in response to public comments. These changes though continue to follow the President's FY 2007 Budget which called for USCIS to reform its fee structure, and the GAO recommendation that USCIS ``perform a comprehensive fee review to determine the costs to process new immigration applications.'' This rule is designed to establish fees sufficient to reimburse the full, necessary, ongoing, and projected costs of processing immigration benefit applications and petitions and the related operating costs of USCIS. While USCIS has authority to collect fees for certain broader costs of administering the United States' immigration system, it has chosen to structure the fees to only recover the full cost of operating USCIS. USCIS believes that this decision is the most consistent with broader Administration policy on user fees and the intent of Congress in the enactment of, and amendments to, section 286(m) of the Immigration and Nationality Act (INA), 8 U.S.C. 1356(m). Accordingly, USCIS has not changed fees based on these comments. 2. Proposed Fees Are Unreasonably High The largest number of comments opposed the proposed fee increases in general terms or highlighted particular applications and petitions and argued that the proposed fee increases would effectively exclude aliens generally, or groups of aliens, from immigration benefits and services. Some suggested that fee increases send the wrong message to people who are attempting to comply with the immigration benefit process and United States immigration laws in good faith, and that higher fees may discourage legal immigration while encouraging aliens to attempt to enter the United States and work illegally. These comments reflect another specific position on the larger issues of immigration law and policy that aliens should be induced to immigrate to the United States. As noted above in relation to the opposite position, the purpose of the fee schedule is not to establish policy, but to recover the costs necessary to operate USCIS. Accordingly, the final rule does not adjust the fee schedule in response to these comments. A portion of these comments argued that the fee increases would result in a decrease in applications and petitions. Contrary to the opinions expressed, USCIS records do not reflect any empirical evidence suggesting a long-term reduction in the demand for immigration benefits resulting from fee increases. While fees at an extremely high level could be a factor in whether or not someone files an application with USCIS, neither past fee increases nor the incremental increases in this rule begin to approach the level necessary to have any significant impact on the demand for USCIS benefits. USCIS acknowledges that short- term increases in applications and petitions occur after a fee increase has been announced, followed by short-term decreases in demand immediately after the fee increases become effective. This fluctuation is a normal result of an increase in the cost of any service, whether governmental or private. Generally, applicants and petitioners with the ability to file do so before fees increase. Individuals logically choose to pay a lower price for a service if and when available. However, USCIS records indicate that demand returns to normal shortly after the effective date of a fee increase. When the Immigration and Naturalization Service (INS) conducted the last comprehensive fee review in FY 1998 and fees increased, on an average percentage basis, more than they increase in this rule, the demand for immigration benefits remained fairly constant shortly thereafter. In any case, USCIS fees are generally believed to be only a portion of the total expenses incurred by a typical applicant. These comments infer that these temporary fluctuations undercut the stability of the funding stream to be generated by the proposed fees. USCIS acknowledges that slight fluctuations will occur and will be reflected in the funding stream, but these fluctuations are not significant enough, in the context of the overall USCIS budget, to adversely affect services. 3. Improve Service, Reduce Inefficiencies a. Service improvement and fees. Many comments noted lengthy waiting times to process immigration benefit applications and petitions and highlighted the need to improve overall customer service. These comments suggested that, regardless of whether the proposed fees were justified, applicants and petitioners should not be asked to pay the full fee increase until USCIS improves service. Others suggested that even if fees were increased before service level improvements were made, there should be detailed commitments to service level improvements to ensure that increased revenues are used to improve service. Some comments stated that USCIS has increased fees before with the promise of enhanced services, but never fully delivered on that promise. Other comments indicated that the proposed rule does not outline an overall strategic plan for improvements, with measurable benchmarks and tangible goals for implementing the needed upgrades, or a specific timeline or completion schedule to assure interested parties that these improvements will actually be accomplished. One commenter complained that customer service and processing backlogs have not improved enough to justify such a steep fee increase. These comments illustrate the main distinction between the revised fee schedule and current one in that the current fee schedule does not reflect the existing costs of performance. The current fee schedule does no more than sustain USCIS operations and provide for delivery of benefits at an unacceptable level. Historically, USCIS balanced resource requirements to allocate insufficient revenues from a fee structure that did not recover full costs. The new fee structure is designed to maintain sufficient capacity to meet appropriate performance standards and goals, while sustaining performance through investments to deliver continuous improvements into the foreseeable future. USCIS acknowledges the commenters' concerns, and believes that these concerns will be satisfied, at least in part, after implementation of the new fee structure. USCIS is required by law to review its fees at least once every two years. 31 U.S.C. 902(a)(8). USCIS has established a dedicated staff in its Office of Planning, Budget, and Finance to conduct future comprehensive analyses. USCIS is firmly committed to seeking [[Page 29857]] improved ways of doing business and reengineering processes in order to contain costs. The new fee structure will enable USCIS to make improvements that may ultimately help avoid future increases and possibly reduce costs. Process improvements implemented over the past several years, as well as projected productivity increases, are taken into account in the current fee review, keeping fees lower than they might otherwise have been. Future productivity enhancements will produce lower costs per unit that will be reflected in future price adjustments. The fees are based on the costs necessary to sustain the processing of applications and petitions. If fees collected remain below processing costs, the imbalance will, as it has in the past, result in a backlog. Backlogs mean customers will not receive the benefits and services for which they have applied in a timely manner. A structural deficit between costs and fees will also mean USCIS cannot effectively sustain operations because of insufficient capital to invest in improvements. Over time, a structural deficit between costs and fees will create and accelerate the growth of backlogs and deteriorate service levels. Delays caused by the inability to meet demand resulting from fees set below cost often have far more impact on the person than the discrete application or petition fee. The proposed fee adjustments and this final rule reflect these concerns. Over the past several years, USCIS received appropriated funds to reduce processing times and meet the President's goal of a six-month or less processing time for nearly all immigration benefit applications and petitions. By the end of FY 2006, the application and petition backlog had fallen from a high of 3.8 million cases in January 2004 to less than 10,000 considered under USCIS control. The total volume of pending cases is currently less than the backlog was at its height, which shows real and substantial progress. USCIS has also made many customer service improvements, including, but not limited to, expanding online capabilities (such as online filing, change of address and case status updates), INFOPASS appointments (providing the ability to go online to make, cancel, or reschedule appointments with a USCIS Immigration Information Officer), and introducing a broad range of fact sheets to help the public understand various benefits, eligibility criteria, and USCIS procedures. These improvements were made prior to the proposed fee increase. With the revenue generated from the new fee schedule, USCIS will be able to deliver significant additional improvements. Until USCIS aligns its fees with costs, however, it will be unable to afford sufficient capacity to process incoming applications and petitions, resulting in backlogs. b. Inefficiency in business-related visas. Some comments highlighted particular inefficiencies and suggested that correcting these would mitigate the need for fee increases. An example of inefficiency mentioned by many commenters was the long processing delays for employment-based visa categories, including the immigrant employment-based classifications and the nonimmigrant classifications such as the temporary employee H nonimmigrant visa, and the intra-company transferees L nonimmigrant visa. USCIS acknowledges that it does not always quickly and efficiently process the Immigrant Petition for Alien Worker, Form I-140 (Alien Employee Petition) for firms requesting USCIS approval to hire a foreign worker. Processing delays result from a number of factors that are beyond the control of USCIS, including extensive Federal Bureau of Investigation (FBI) name checks and retrogression of petition priority dates caused by over-subscription of the applicable visa categories. The solutions suggested by one commenter, however, such as mandatory processing times, automatic fee refunds, or automatic approval, would neither improve efficiency nor result in shorter processing time. The suggestion that delays result in refunds would merely cause more delays. Employers may use the premium processing service, if applicable, to obtain faster processing of certain employment-based petitions and applications, a process that may alleviate the commenters' concerns. The national interest is not served and immigration laws are not complied with by automatically approving immigration benefits for persons solely as a result of the passage of time. Each applicant or petitioner must prove his or her eligibility for the benefit sought. While a backlog still exists, USCIS has achieved an average processing time for an Alien Employee Petition as of January 2007 of less than 135 days per case, which represents fifteen days faster than five years ago, but with a much higher current monthly volume. With the additional USCIS resources from this updated fee schedule, performance will be enhanced even further. c. Multiple biometric data requests. Many commenters pointed to the fact that applicants or petitioners must provide biometric data more than once. Some commenters considered the expiration of fingerprints submissions to be inefficient. Others suggested that it was inefficient for USCIS to again request fingerprints when they apply for sequential benefit applications. USCIS agrees that an applicant should not be required to provide biometric data multiple times for a single application. USCIS is developing the Biometrics Storage System (BSS) which will allow the re-use of fingerprints and, if an application or petition has not been adjudicated within the fifteen month validity period, USCIS will be able to simply re-submit the stored fingerprints to the FBI, without any involvement of the applicant or petitioner. See 72 FR 17172 (Apr. 6, 2007) (establishing a new system of records). Also, as a matter of policy, when an application remains pending, USCIS does not charge the applicant the biometric fee again because of a processing delay at USCIS. In the revised fee structure, the biometric fee is not simply a fee for biometric collection or the USCIS cost of the applicant or petitioner appearing at an Application Support Center. The biometric fee also covers costs associated with the use of the collected biometrics for FBI and other background checks. Thus, an applicant will pay the biometric fee whenever he or she files another application that requires the collection, updating, or use of biometrics for background checks. At that point, USCIS can verify the identity of the applicant by comparing the newly collected biometrics with those previously submitted, providing an important security enhancement. USCIS believes that this new process may result in some decreases in costs which may offset the costs of background checks incorporated into the biometric fee, and has already factored this impact into the fee structure along with projected efficiency increases. d. Petitions for aliens of extraordinary ability or performers. USCIS received many comments requesting improved efficiency in the processing of visa petitions for aliens of extraordinary ability in science, art, education, business, or athletics, and their spouses and/ or children (the O visa category), or aliens coming to the United States temporarily to perform at a specific athletic competition or as a member of a foreign-based entertainment group (the P visa category). Many O and P petitions are submitted on relatively short schedules, i.e. the individual/group is scheduled to [[Page 29858]] visit the United States in the near future for a specific event. These commenters stated that lengthy and uncertain O and P visa processing periods complicated booking foreign artists for performances and requested the implementation of a thirty-day maximum processing period. This issue is not germane to this rule; however, because of the volume of comments received, a brief response is provided. The USCIS receipt notice received by an O and P petitioner after filing states that the petition will be processed in 30-120 days, but that time is a standardized estimate for all O and P petitions for many types of performers and organizations. Still, USCIS does everything in its control to adjudicate these petitions within 60 days. In spite of this fact, cases may be delayed by a number of causes that are beyond USCIS control, most commonly a lack of response to USCIS inquiries by the sponsoring organization, labor unions and other representatives, and the prospective visa recipient. For planning purposes, current estimates of various visa classification processing times and processing dates are posted on the USCIS website. USCIS recently published a final rule to permit petitioners to file O and P nonimmigrant petitions up to one year prior to the need for the alien's services. 72 FR 18856 (April 17, 2007). Although that rule will not resolve all of the commenters' concerns, the longer filing window will better assure O and P petitioners that they will receive a decision on their petitions in a timeframe that will allow them to secure the services of the O or P nonimmigrant when such services are needed. USCIS suggests, however, that the nature of the O and P visa classifications creates a need to carefully plan performances and book foreign entertainment acts. Fees collected after publication of this rule will be used to cover USCIS costs and will assist in more reliable and consistent adjudication of all applications and petitions, including O and P visa petitions. e. Pre-screening applications and petitions for lawful permanent residence. One commenter supported the recommendation of the USCIS Ombudsman to require a comprehensive prescreening of Applications to Register Permanent Residence or Adjust Status, Form I-485, prior to filing. Citizenship and Immigration Services Ombudsman, Annual Report to Congress, 50-55 (June 29, 2006) (Recommendation 27). Recognizing that adoption of a prescreening process would reduce revenues, the commenter posited that it would instead promote efficiency and integrity, and enhance security. USCIS is committed to a process that handles cases efficiently and effectively, meeting all quality requirements in a way that protects the national security and public safety of the United States. USCIS cannot, however, agree with this recommendation at this time. The suggestion for ``up-front processing'' is very similar to a process that came to be known as ``front-desking''--a procedure followed by the INS in which employees were instructed to review certain applications in the presence of the applicant to correct facial deficiencies, incomplete responses or errors before accepting the application for filing, and not to accept those applications thought to be statutorily deficient. Front-desking effectively precluded administrative and judicial review of rejected applications because there was no formal denial to appeal--only a return of an uncorrectable document. Reno v. Catholic Social Services, 509 U.S. 43, 61-63 (1993). Legitimation of the concept of up-front processing would require a fundamental change in the regulations administered by USCIS and goes well beyond the scope of this rulemaking. USCIS will not adopt this proposal as a part of this rulemaking. f. Transformation project and premium processing. Some comments requested more information on transformation plans and how premium processing revenues will be spent. Others suggested that premium processing be expanded. Another commenter suggested that transformation from a paper to electronic process would create excessive costs and burdens that would create financial and paperwork barriers to citizenship. As required by statute, premium processing revenues are deposited in the IEFA and will be fully isolated from other revenues and devoted to the extra services provided to premium processing customers, and to broader investments in a new technology and business process platform to radically improve USCIS capabilities and service levels. INA Section 286(u), 8 U.S.C. 1356(u). USCIS has recognized that its existing technology has not kept pace with changing demands and additional requirements placed upon USCIS. Since the previous fee structure was retrospective and did not include funds for real investments to sustain and improve USCIS infrastructure, business choices have been limited to those that can be supported by existing technology or no technology. The premium processing fee ($1,000) is statutorily authorized for employment based applications and petitions. USCIS cannot expand the premium processing fee or the applications and petitions available for premium processing beyond the statutory limitations. USCIS plans to transform the current paper based process into an electronic adjudicative process. This transformation will allow USCIS to better detect and deter those who seek to do harm or violate the laws of the United States, while facilitating benefits processing for eligible, low-risk persons. USCIS acknowledges that the transition from a paper-based to an electronic adjudication system carries with it certain burdens, but believes the benefits of the new process will significantly outweigh those costs. The new adjudicative process will enable USCIS to enhance national security, improve customer service, and increase efficiency by increasing its ability to share data with immigration partners, improving security by uniquely identifying individuals, improving system integrity by creating customer accounts, and providing a single worldwide case management system. Nonetheless, as some commenters pointed out, not all applicants will have access to the Internet or other electronic means of submission. For those individuals, paper submissions will remain an option. g. Actions planned to improve efficiency. USCIS believes that, while sustainability of its operations focused on continuous improvement is important, so is real and substantive near-term improvement. USCIS structured the revised fee schedule to allow it to commit to specific substantial improvements over the next two years. USCIS is committed to substantial reductions in processing times by the end of FY 2008 for four key applications: (1) Application to Renew or Replace a Permanent Resident Card, Form I-90 (Application for LPR Card); (2) Application to Register Permanent Residence or Adjust Status, Form I-485 (Adjustment of Status Application); (3) Immigrant Petition for Alien Worker, Form I-140 (Alien Employee Petition), the petition for an employer to sponsor a foreign worker for permanent residence based on its job offer; and (4) Application for Naturalization, Form N-400 (Naturalization Application), the petition to become a United States Citizen through naturalization. These four applications and petitions represent almost one-third of the USCIS total workload. By the end of FY 2008, [[Page 29859]] USCIS plans to reduce processing times for each of these cases by two months, from six months to four months (naturalization processing will be reduced from seven months to five months when the ceremony at which a person takes the oath of allegiance is included as part of the process). Thus, applicants and petitioners will see a significant improvement in the first full fiscal year following these fee adjustments. Further, as also indicated in the proposed rule, USCIS is committed to a twenty-percent average reduction in case processing times by the end of FY 2009, which will extend improvements in processing times and service delivery across the spectrum of applications and petitions. The proposed fee structure commits USCIS to real improvements as it is not built simply on today's productivity rates, but on anticipated increases in productivity (four percent for the Adjustment of Status Application, and two percent for all other products). USCIS is accountable for these productivity increases in order for fees to support operations as intended. Another commenter suggested that hiring more permanent employees would improve USCIS efficiency. USCIS agrees with the commenter that sufficient staffing is directly related to the ability to collect sufficient fees for service as explained in the proposed rule and this final rule. As presented in the President's FY 2008 Budget, USCIS plans to add 1,004 Adjudication Officers and support staff. However, twenty percent of the new staff will be other than permanent employees. Most of that staff will handle application and petition volume surges, a critical resource to ensure that the backlog does not increase due to sudden and unpredictable workload increases. However, the comment suggests no regulatory changes. Thus, no changes are made to the final rule. One commenter questioned how quickly USCIS will be able to implement all of the resources outlined in the additional resource requirements. The commenter also questioned whether USCIS took into consideration ongoing expenses versus one-time expenses. USCIS has factored into the fee schedule the appropriate start up costs. USCIS did differentiate one-time costs versus recurring costs in its fee calculations. For example, one-time costs such as background investigations and computer equipment for new hires were included in the FY 2008 costs, but not in the FY 2009 costs. These calculations are accurately identified in the fee review supporting documentation. 4. Increases Relative to Time Some comments suggested that some fees were excessive for certain applications and petitions relative to the time it takes to process the application or petition. As mentioned above and in the proposed rule, the primary basis of the USCIS fee model is the administrative complexity, which is the amount of time that it takes to process a particular kind of application or petition (identified as ``Make Determination'' activity in the proposed rule). The calculation also factors in other direct costs, such as the cost of manufacturing and delivering a document when that is part of the processing of a particular benefit. In addition to these costs, the fee calculation model factors in the full costs of USCIS operations, including services provided to other applicants and petitioners at no charge, overhead costs (e.g., office rent, equipment, and supplies) associated with the adjudication of the application or petition, and other processing costs. These latter costs include responding to inquiries from the public (``Inform the Public'' activity), application and petition data capture and fee receipting (``Intake'' activity), conducting background checks (``Conduct Interagency Border Inspection System Checks'' activity), the acquisition and creation of files (``Review Records'' activity), preventing and detecting fraud (``Fraud Prevention and Detection'' activity), and, when applicable, producing and distributing secure cards (``Issue Document'' activity) and electronically capturing applicants' fingerprints, photographs, and signatures (``Capture Biometrics'' activity). In total, all application and petition fees include a total of $72 in ``surcharges'' to recover asylum and refugee costs, and fee waiver and exemption costs. 5. Increases Relative to Other Standards Many commenters suggested that the fee average or weighted average fee increases were out of line with, for example, the Social Security Administration's (SSA) 2007 basic cost of living increase, the increase in the Gross Domestic Product (GDP), or the federal General Schedule salary increase. USCIS appreciates the concerns expressed, but these external indicators of costs are not comparable with USCIS' costs. For example, SSA's basic cost of living increase is a benefit increase tied to inflation, whereas the USCIS fees recover all of the costs of operating USCIS, including enhancements required to meet congressional mandates, improve efficiency, detect fraud, secure the immigration system, and to consolidate elements such as federal salary increases into base costs. The real GDP or ``real gross domestic product,'' on the other hand, is an estimate of the output of goods and services produced by labor and property located in the United States by the United States Department of Commerce Bureau of Economic Analysis. GDP bears no relation to the cost models that must generate the fees to be charged by USCIS. Many commenters stated that the increase in the fee for the Application for Replacement Naturalization/Citizenship Document, Form N-565, from $220 to $380, was unreasonable when compared with replacement of other documentation. Most of these commenters compared the fee for replacing a citizenship certificate with replacing a Social Security card, which the Social Security Administration provides for free, or replacing state documents (e.g. driver's licenses) that many states provide for a nominal charge. Replacement of a social security card, driver's license, voter registration card, or passport is substantially different from replacement of a certificate of citizenship. USCIS incurs substantial costs in determining the validity of the naturalization for which the certificate was issued before it can issue a new certificate. As stated in the proposed rule and above, this fee schedule is based on the relative complexity of adjudication of a benefit application and reflects the average relative cost of adjudication of all such applications. The fees charged for replacing secure documents reflect the full costs incurred by USCIS in replacing those documents. Regardless of the type of change requested, USCIS must obtain the original records and issue a new certificate after the appropriate review and decisions. Charging $380 for adjudication of Form N-565 for an infant may recover more fees than that specific adjudication may require, however, $380 fails to recover the resources expended to determine the validity of the more complicated applications such as in the case of an adult who requires significant background investigation. Therefore, the Form N-565 fee was not adjusted from what was proposed. Other comments stated that some fees should reflect validity periods with lower fees for benefits with shorter validity periods. This argument is similar to that advanced by many who advocated higher fees--that the fees should not be based just on costs, but [[Page 29860]] on the real or perceived value of the benefit. USCIS' methodology is based on the complexity of the adjudication, not the validity period. USCIS establishes maximum allowable time periods that may pass between its approval of a benefit and the applicant's receipt of the benefit based on the type of case and how passage of time influences the need for updates in the information used to make the determination. The approval validity period is not designed to generate revenue through unnecessary repeat filings. USCIS believes that the current methodology is fair and complies with Federal fee guidelines. Decreasing the fee for applications for benefits with shorter validity would only shift costs to other immigration benefit applications and petitions based on considerations that are not applicable. The comment will not be adopted. 6. Grandfathering Some comments recommended phasing in the fee increase over a period of years, or fixing fees at current levels for those who already applied for one or more immigration benefits in the past, effectively grandfathering fees for those who are already in the USCIS system. Deferring fee increases would directly result in service delays. In addition, setting fees lower for any class of applicants or petitioners would merely transfer costs to other applicants. Thus, USCIS has not incorporated these recommendations. 7. Budget Decisions Necessary To Administer Immigration Benefits Many comments highlighted a critical aspect of the fee structure-- operations must be sustainable. The real cost of processing a type of application or petition is more than the discrete cost of processing a particular individual case today. It includes the cost of sustaining operations and making investments to continually improve service delivery and performance. The proposed fee structure is designed to meet performance standards and make continuous improvements through investments in training to ensure a high performance workforce, facilities to provide services that are more accessible to our customers, systems to support operations and performance, and resources to improve quality and performance management. These goals are consistent with the principles of Office of Management and Budget (OMB) Circular A-25. 8. Reorganization Another commenter suggested that efficiency could be improved by reorganizing USCIS in accordance with the recommendations of the USCIS Ombudsman. USCIS has recently reorganized its functions and expects this reorganization to provide greater efficiency once it has gained traction. See 71 FR 67623. Those expectations were incorporated into the proposed rule and this final rule. C. Alternative Sources of Funding Many comments did not dispute the methodology and costs, but asserted that applicants and petitioners simply should not be required to bear the burden of these fee increases. Many pointed to the benefits of immigration and assimilation and argued that because the United States benefits as a whole from immigration, as a matter of public policy immigrants should not bear the entire cost of processing. Many asserted that USCIS should find ways to keep fees down, even if it means operating at a deficit. Others suggested substituting appropriated monies for user fees to offset particular fees or activities or subsidize general USCIS operations. 1. Appropriated Funds Many comments recommended that USCIS seek appropriated funds to close funding gaps, meaning that taxpayers should subsidize particular applications and petitions, certain processes, activities not directly related to the adjudication of the particular kind of application or petition, or fees in general. Some highlighted the public good and positive impact resulting from immigration, naturalization, or certain procedures (i.e., background checks) and argued that the public good merited the use of tax dollars to offset costs. Many comments suggested that appropriations be used to either subsidize specific benefit application or petition fees or all fees in general. Some comments suggested that fees should be the last recourse for funding immigration services; that is, USCIS should be required to have exhausted all possible means of seeking appropriated funds before imposing fee increases. One commenter faulted USCIS for not engaging Congress to cooperatively work on this issue. Others suggested funds be appropriated for discrete purposes to offset the cost of a particular activity associated with case processing or overall management of USCIS. Other comments point out that section 286(m) of the INA, 8 U.S.C. 1356(m), authorizes the recovery of the full cost of providing immigration and naturalization services, including services provided without charge to many applicants. These comments point out, however, that section 286(m) does not mandate full cost recovery, and that USCIS still has the option of seeking appropriations and choosing to recover less than full cost through user fees. Some commenters urged support for specific legislation that would alter the fee development process or affect this specific fee review process. Finally, one commenter suggested that USCIS use appropriated funds to fund unusual or atypical expenses from its fee calculation. The commenter suggested that these infrastructure costs represent an ``investment'' that should not be funded by current immigration and naturalization applicants and must not be included in the fee calculation. These comments go beyond the scope of the regulation and raise questions of whether Congress should alter the immigration laws of the United States or appropriate general funds for USCIS. In effect, these comments suggest that USCIS should take other actions outside the rulemaking and the authorization for this rulemaking under INA section 286(m), 8 U.S.C. 1356(m). Law and policy have long supported the proposition that the costs of providing immigration benefits should be borne by those applying for those benefits. Thus, in this final rule, USCIS is adopting a fee schedule to recover its costs through user fees. While it is true that Congress has enacted intermittent appropriations to subsidize the operations of USCIS, the President's budget for FY 2008 does not request such an appropriated subsidy, except specific funds for expansion of an Employment Eligibility Verification program. Even if an appropriation were to be requested, receipt of sufficient funds (without adjusting the fee schedule) to cover the costs of USCIS operations may be doubtful. USCIS must fund the services it provides through the legal means at its disposal. Deferring the recovery of full costs while USCIS explores other funding options will delay service delivery to applicants and petitioners. 2. Finding Other Revenue Sources Some comments suggested funding USCIS through fines assessed against employers who hire aliens who are not authorized to work in the United States. Other comments suggested a variation on the methodology, such as charging employers more than individuals or charging additional fees at the time of naturalization. USCIS is statutorily barred from using fines assessed against employers. Unless specified in law, all fines and penalties under the immigration laws become miscellaneous United States Treasury [[Page 29861]] receipts and are deposited into the general fund, not the IEFA. INA section 286(c), 8 U.S.C. 1356(c). Those additional sources of USCIS revenue that are authorized, such as the DHS share of certain supplemental fees collected under section 286(v) of the INA, 8 U.S.C. 1356(v), have been taken into account in USCIS budgeting and fee setting. USCIS believes that the methodology used to develop these fees--a methodology based on the complexity of the specific application or petition--is the most appropriate process to equitably allocate costs and provide long-term stable and reliable funding. Part of USCIS' funding problem has been reliance on temporary funding sources, including appropriated funding. This new fee schedule will establish a more stable source of funding. As the number of applications and petitions increases, USCIS will be better able to respond to increasing workload changes and will no longer be compelled to sacrifice customer service or rely on unreliable funding sources. D. Comments on Specific Benefit Application and Petition Fees Many comments that suggested that USCIS seek appropriated funds or other subsidies, or other means to reduce fees from the proposed levels, also emphasized issues and impacts related to particular applications and petitions. The fee development methodology is sensitive to the costs of adjudicating each type of application or petition based on the complexity of adjudicating it. 1. Naturalization Application The fee for the Naturalization Application generated a large number of comments from a wide spectrum of commenters. The proposed rule would raise this fee from $400 to $675, including the required biometrics fee, or a 69 percent increase. Many comments highlighted the public interest in promoting citizenship and recommended reducing this fee. USCIS understands the sentiment expressed by the commenters that becoming a citizen of the United States is an honor to be cherished. USCIS disagrees with the commenters who suggested that the proposed fee increase is inconsistent with our tradition of welcoming and integrating immigrants and that increasing the fee would send the wrong message to intending citizens. The fee for a Naturalization Application is established at $595 in this final rule and properly reflects the intensive scrutiny with which a request for such an honor should be reviewed. Naturalization applicants who are initially found eligible must be examined under oath to assure compliance with the many requirements for citizenship under the INA including competency in English, knowledge and understanding of United States Government and history, physical presence and maintenance of resident status in the United States, and facts and conduct reflecting their moral character and attachment to the United States Constitution and law. 8 U.S.C. 1401 et seq. In adjudicating some naturalization applications, USCIS adjudicators must resolve complex subsidiary applications for certain exemptions, such as the Application to Preserve Residence for Naturalization Purposes, Form N-470, or the Medical Certification for Disability Exceptions, Form N-648 (which is processed and adjudicated without charge). Further, criminal and national security record checks are required for naturalization applications and may require the involvement of numerous USCIS personnel. In addition, the naturalization adjudication process may require multiple interviews, and solicitation and consideration of additional evidence bearing on eligibility. Finally, in the event of an adverse decision on the application or petition, the applicant is entitled to request a new hearing by a different adjudicator. All of these factors are reflected in the fee charged to recover the cost of adjudication. Two factors in this final rule mitigate the Naturalization Application fee increase. First, the final rule maintains the current USCIS policy of permitting naturalization applicants to request an individual fee waiver. In determining inability to pay, USCIS officers consider all factors, circumstances, and evidence supplied by the applicant including age, disability, household income, and qualification within the past 180 days for a federal means tested benefit, as well as other factors associated with each specific case. For those applicants not granted a fee waiver, USCIS will charge a fee of $595 for processing naturalization applications. Additionally, the cost of fingerprints has been reduced slightly, resulting in a decreased overall cost for naturalization applicants. Accordingly, USCIS has determined that the effort and resources expended to process Naturalization Applications justifies this level of fee increase. 2. Application To Register Permanent Residence or Adjust Status Many comments emphasized the overall size of the proposed increase for the Adjustment of Status Application fee from $325 to $905, or 178 percent. Most of the proposed fee increase for the Form I-485 was driven by the packaging or ``bundling'' of related benefits with no separate fee. As indicated in the proposed rule, factoring in separate fees, applicants typically pay for additional services related to the Form I-485 for which they will no longer pay separately. In this rule, after consolidating the fees for the Adjustment of Status Application and the requests for interim benefits that previously required additional fees, the increase in the fee from $865 to $1,010 (17%), including the biometric fee, is significantly below the average increase for all fees. A few comments suggested that incorporating the fee for the Application for Employment Authorization, Form I-765, (Application for EAD) and the fee for the Application for Travel Document, Form I-131, (Application for Travel Document) into the Adjustment of Status Application should only be an option. USCIS issues an Employment Authorization Document (EAD) to the alien after it approves an Application for Employment Authorization. An alien submits an Application for Travel Document to apply for a travel document, reentry permit, refugee travel document, or advance parole. EAD and travel documents are commonly referred to as ``interim benefits.'' These commenters suggested that children may not need or desire travel documents or work authorization, so the fee for an Adjustment of Status Application should be consequently reduced for a child or a family. Other comments suggested that, like refugees, asylees should not be required to pay the portion of the new Adjustment of Status Application fee attributable to the interim benefits, because eligibility to work is incident to their status. Finally, several commenters suggested that USCIS apply the fee consolidation for the Adjustment of Status Application, Application for EAD, and Application for Travel Document to all currently pending Adjustment of Status Applications. USCIS has made no adjustment in this final rule as a result of these comments. USCIS determined that a change in the fee schedule was not justified because a type of applicant mentioned by the commenters may not need or want interim benefits. Neither does this rule adopt the suggestion to process Applications for EADs or Applications for Travel Documents for currently pending Adjustment of Status Applications without fee. USCIS records indicate that most applicants who [[Page 29862]] initially choose not to apply for an EAD or travel documents soon do so because they find that they need interim benefits almost immediately. As for asylees and refugees, asylees are authorized to work, but USCIS records indicate that most asylees and refugees obtain an EAD to provide to employers as readily accepted proof that they are authorized to work in the United States. The fees collected by USCIS for EAD Applications fund the costs incurred by USCIS for issuing EADs. USCIS incurs costs for adjudicating the Application for EAD which is a different issue from an asylee's authorization to work incident to asylee status. Further, although refugees are not required to submit a fee for their initial Adjustment of Status Application, they are required to pay the fee for an Application for EAD or for the Application for Travel Document to request a refugee travel document. Providing multiple fee options based on who typically requests interim benefits, when records indicate that the vast majority of applicants do request interim benefits, would be too complicated and costly for USCIS to administer. Applicants with a pending Adjustment of Status Application who did not pay a fee that incorporates the cost of an Application for EAD and an Application for Travel Document must continue to file separate interim benefit applications with the appropriate fee for each service. A number of comments pointed out that the packaging of these services and the fee increase means that the total fees a family will pay for concurrently filed Adjustment of Status Applications will increase substantially, and argued for some form of family cap on the total fee to be collected. These commenters pointed out that the child fee level under the fee schedule was almost one-third lower than the adult fee, but the $100 difference under the proposed fees represents only an eleven percent differential between an adult's and a child's Adjustment of Status Application fees. These comments added that this effect exacerbated the impact of the fee changes on families. Other commenters were concerned that, while refugees are charged no fee for their Adjustment of Status Applications, the proposed rule provides that asylees must pay a fee for an Adjustment of Status Application and suggested that this treatment was disparate. USCIS considered the suggestion that it institute a maximum fee for a family where several members submit simultaneous Adjustment of Status Applications (family cap). USCIS analyzed a number of scenarios to determine at what level a family cap would not result in a significant transfer of the direct costs for adjudicating Adjustment of Status Applications for entire large families to individuals or smaller families. USCIS also weighed whether or not to transfer the costs of adjudicating Adjustment of Status Applications for large families to only other adjustment of status applicants or to all other benefit applications. Unfortunately, USCIS was unable to determine the size of the family at which it was no more administratively burdensome to process an Adjustment of Status Application for an additional relative when processing multiple, simultaneous Adjustment of Status Applications from family members. In the end, USCIS determined that the policy or humanitarian considerations inherent in the decisions made in this final rule to allow additional fee waivers is not sufficiently prevalent in the case of family Adjustment of Status Applications to warrant a family cap, absent such data on the requisite burden based on size. Thus, USCIS then turned to consideration of the variation in Adjustment of Status Application fees based on the applicant's age. As pointed out by some comments, the fee for the Adjustment of Status Application was $325 for aliens fourteen years of age or older, but for aliens under fourteen years of age, the fee was $225. This amounted to a 31 percent difference in the base filing fee. In response to these comments, USCIS evaluated the difference in actual processing time and costs associated with the ``Make Determination'' activity for Adjustment of Status Applications. While the proposed fee for an Adjustment of Status Application was based on the overall cost of processing the average application, regardless of the applicant's age, the large majority of Adjustment of Status Applications are filed by persons fourteen or older. USCIS conducted an analysis of Adjustment of Status Applications submitted concurrently as part of an application from a family. For the application to be filed concurrently, the child must be a derivative applicant of the adult or the child's status must be based on the same legal authority as the adult's. This analysis found that there is a 35 percent difference in the average time it takes to process an Adjustment of Status Application filed by someone under fourteen years of age versus the time it takes to process a case filed by someone age fourteen or older. This calculation was consistent with the methodology employed by the proposed rule in that an identifiable adjudication was segregated and the relative complexity of processing the benefit for a subset of applicants was determined. Applying this difference to the fee model reduces the fee for an Adjustment of Status Application for a family member under age fourteen from $805 to $600, and adjusts the fee for family members age fourteen and older from $905 to $930. Since the fee will drop for every concurrently-filed adjustment of status application for someone under 14, families with children who all file concurrently will see a drop in their collective adjustment fee. For example, a family of two adults and one child will see their total adjustment application fees drop by $155 relative to what they would have paid without this change, and a family with two adults and two children will see their collective fees drop by $360. A family with two adults and four children will see their fees drop by $770. USCIS explored establishing a child discount in other immigration and naturalization benefit areas and has determined that a discount for adjudication of a child is only appropriate in the case of an Adjustment of Status Application. The Adjustment of Status Application requires adjudication of a distinct and separate application for a child, although it can be submitted simultaneously with other family members. Other benefits that require submission of a separate application from family members, but allow the family members to submit them concurrently for processing are distinguishable. For example, no fee is charged for the Registration for Classification as Refugee, I- 590, and the fee for the Application for Temporary Protected Status, Form I-821, is statutorily capped at $50 per applicant, which is substantially below its adjudication costs. Similarly, besides children, there are no other subgroups of applicants for adjustment of status who possess qualities that would provide for segregation of relative adjudicative complexity that would provide sufficient data for a separate fee calculation. Likewise, the maximum amount payable by a family was removed from the fee proposed for Application to Adjust Status from Temporary to Permanent Resident (under Section 245A of Pub. L. 99-603), Form I-698, and the Application for Status as a Temporary Resident Under Section 245A of the Immigration and Nationality Act, Form I-687. That change was made mainly because Immigration Reform and Control Act of 1986 (Pub. L. 99-603, November 6, 1986) requires an applicant under that [[Page 29863]] Act to have entered the United States before January 1, 1982, which would exclude anyone currently under the age of 18. Further, the family cap for fees charged filing Form I-698 and Form I-687 was a policy established by INS for legalization and established at three times the fee for an individual. As explained earlier, a family cap that is not based on adjudicative complexity does not comport with the methods used for establishing the fee schedule in this rule. Therefore, beyond reducing Adjustment of Status Application fees for children, USCIS will not provide any discount for families based on size, and USCIS has decided to base Adjustment of Status Application fees on the direct costs associated with that service. With regard to the different treatment for refugees and asylees, the exception for a fee for refugees is based on the requirement that a refugee must apply for adjustment of status within one year of admission as a refugee. INA section 209(a), 8 U.S.C. 1159(a). Further, while refugees have been affirmatively invited by the United States Government to come to the United States for permanent resettlement, asylees have sought admission of their own accord and requested to be allowed to stay. While USCIS agrees that both asylees and refugees should receive full protection from persecution, it is a reasonable policy choice to be more generous in awarding immigration benefits to those who are invited. Nonetheless, in response to comments on this subject, USCIS has decided to allow asylees to request a waiver of the Adjustment of Status Application fee on an individual basis. Section III.E addresses changes in fee waivers in more detail below. 3. Employment Authorization for Students Many educational institutions and their representatives submitted nearly verbatim comments on the proposed fee increase for an Application for EAD. These commenters expressed significant concerns about the size of the fee and its effect on the limited financial capability of most international students in F visa status and their ability to apply for work authorization when they choose to participate in the Optional Practical Training (OPT) program. These comments noted that international students on F-1 visas are limited to 20 hours per week of on-campus employment and the money to pay the Application for EAD fee will curtail their ability to buy food and pay rent. Similarly, these same commenters, for the most part, expressed general concerns about the immigration benefit application expenses for international students and their family members, who typically are of limited means. For international students, F-1 status allows a student to remain in the United States as long as they are a properly registered full- time student. To maintain full-time status, a student must take at least four courses per semester at the undergraduate level, and depending on the academic program, three or four courses per semester at the graduate level. Also, under F-1 status, a student may work part- time in an on-campus job and in a ``practical training'' job directly related to the student's field of study for twelve months during or after the completion of studies. The OPT program mentioned by the commenters grants temporary employment authorization to provide F-1 students with an opportunity to apply knowledge gained in the classroom to a practical work experience off campus. To be eligible for OPT, a student must have been in full time student status for at least one full academic year preceding the submission of their application for OPT, be maintaining valid F-1 status at the time of the application, and intend to work in a position directly related to his or her major field of study. The United States places a very high value on attracting international students and scholars to this country. The contributions to the academic experience for all students provided by the existence of a diverse international student body are invaluable. The resources devoted to delivering immigration benefits to deserving students show the importance of this goal to USCIS. USCIS also understands that international students already face significant hurdles, including financial hurdles, which is why the fee structure consolidated fees where consolidation made sense, and kept fees to a minimum. Nonetheless, substantial resources are expended by USCIS for adjudication of the student's eligibility for employment documents and the fee for an Application for EAD was established based on those needs. Further, while USCIS acknowledges that the salaries provided by OPT are helpful, the emphasis of OPT is on training students in their fields of study, not as a source of income. To that end, the $340 cost of requesting an Application for EAD is a very small portion of the total expenses incurred by an alien pursuing studies in the United States. EAD applicants may request an individual fee waiver based on inability to pay. For Applications for EAD that are not granted a fee waiver, USCIS will charge a fee of $340 for processing based on the effort and resources expended to process this benefit. 4. Application for Advance Processing of Orphan Petition Many comments focused specifically on the fees for a Petition to Classify Orphan as Immediate Relative, Form I-600, and an Application for Advance Processing of Orphan Petition, Form I-600A. Several comments suggested that USCIS should reduce the fee and offer fee waivers for orphan petitions. These commenters effectively request that USCIS shift the costs of this program to other immigration benefit applications and petitions. Adjudicating orphan petitions involves some of the most complex decision-making within immigration services because adjudication of Petitions to Classify Orphan as Immediate Relative and Applications for Advance Processing of Orphan Petition requires knowledge of many state adoption regulations and statutes and foreign country adoption requirements. Each petition must be accompanied by a home study, background checks, and evidence that must be carefully examined. Approval of parents as suitable to adopt is time sensitive as a result of the potential changes in a household that may impact the suitability of the home for an adopted orphan, such as loss of a job or divorce. Such changes often prevent reconsideration of the parents' petition. As a result of this approval expiration period, currently set as eighteen months, prospective adoptive parents must submit a new petition and all supporting documents if they wish to continue with the adoption process if they have not been matched with a child. USCIS sometimes works with a case for months, involving frequent contact with adoption agencies, social workers, and prospective adoptive parents. Finally, international orphan adoption adjudications require an investigation and information verification, and may require travel. This fee increase will allow USCIS to automate case management of adoption cases, further reducing any real or perceived delays in the manual, paper-based process currently in place. Orphan petitioners must attest that the beneficiary will not become a public charge in order to be approved as a suitable adoptive parent. Further, the orphan petition fee is a small part of what a United States citizen petitioner chooses to accept as part of the overall process and cost of adopting a child from overseas and raising that child. The financial circumstances required to be eligible for this benefit directly contradict the rationale for shifting costs related to these applications to others, [[Page 29864]] or for offering a waiver of the fee because of inability to pay. A significant number of comments suggested that USCIS mitigate the cost by extending the validity of approved orphan petitions and the results of background checks. Commenters complained that processing in the country from which the child comes often takes longer than the current approval validity, which creates re-work and additional fees. The length of the validity of the approval of any petitioner or applicant for a benefit was not mentioned in the proposed rule and cannot be amended by this final rule. Thus, these comments are beyond the scope of this rule. The final rule provides, as does the current USCIS fee schedule, that when more than one petition is submitted by the same petitioner on behalf of orphans who are brothers or sisters, only one fee will be required. No fee is collected on additional siblings because USCIS determined that processing efficiencies provided by the ability to adjudicate two siblings simultaneously did not justify an additional fee. However, in the case of multi-child simultaneous petitions when the orphans are not siblings, USCIS requires separate fees for each child because of the processing requirements of determining eligibility of each child. In addition, if a filing fee is paid at the time of filing an Application for Advance Processing of Orphan Petition, a fee is not required again to file a Petition to Classify Orphan as Immediate Relative. Since a large number of commenters ardently mentioned this issue as part of their comments, USCIS has decided to allow a prospective adoptive parent to receive one extension of the approval of the Application for Advance Processing of Orphan Petition at no charge. Prospective adoptive parents, who have not found a suitable child for adoption as evidenced by their failure to submit a Petition to Classify Orphan as Immediate Relative after approval of their Application for Advance Processing of Orphan Petition, will be allowed to request one extension of the approval without charge, including the biometric fee. This final rule does not change the proposed petition fee of $670. The request from the appli |