[Federal Register Volume 69, Number 73 (Thursday, April 15, 2004)]
[Rules and Regulations]
[Pages 20528-20536]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8699]
[[Page 20527]]
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Part IV
Department of Homeland Security
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8 CFR Part 103
Adjustment of the Immigration Benefit Application Fee Schedule; Final
Rule
Federal Register / Vol. 69, No. 73 / Thursday, April 15, 2004 / Rules
and Regulations
[[Page 20528]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 103
[CIS No. 2233-02]
RIN 1615-AA84
Adjustment of the Immigration Benefit Application Fee Schedule
AGENCY: Department of Homeland Security, Bureau of Citizenship and
Immigration Services.
ACTION: Final rule and confirmation of interim rules.
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SUMMARY: This rule adjusts the fee schedule of the Immigration
Examinations Fee Account (IEFA) for immigration benefit applications
and petitions, as well as the fee for capturing biometric information
of applicants or petitioners who apply for certain immigration
benefits. Fees collected from persons filing immigration benefit
applications are deposited into the IEFA and used to fund the full cost
of providing immigration benefits; the full cost of providing similar
benefits to asylum and refugee applicants; and the full cost of similar
benefits provided to other immigrants, as specified in the regulation,
at no charge. This rule adjusts the immigration benefit application
fees by approximately $55 per application, and increases the biometric
fee by $20, in order to ensure sufficient funding to process incoming
applications. In addition, on January 24, 2003, and February 27, 2003,
the former Immigration and Naturalization Service (INS) published two
interim rules that first adjusted fees lower based on section 457 of
the Homeland Security Act of 2002, and then readjusted the fees to
preexisting levels, based upon the repeal of section 457. Accordingly,
this final rule will adopt the two interim rules as final without
change, and will adopt the fee structure that was proposed on February
3, 2004.
DATES: This final rule is effective April 30, 2004. Applications or
petitions mailed, postmarked, or otherwise filed, on or after this date
require the new fee.
FOR FURTHER INFORMATION CONTACT: Paul L. Schlesinger, Acting Budget
Director, Office of Budget, U.S. Citizenship and Immigration Services,
425 I Street, NW., Room 5307, Washington, DC 20536, telephone (202)
514-3206.
SUPPLEMENTARY INFORMATION:
I. Introduction
The Bureau of Citizenship and Immigration Services (BCIS) published
a proposed rule in the Federal Register on February 3, 2004, at 69 FR
5088, to adjust the application fee schedule of the IEFA. The proposed
rule was published with a 30-day comment period, which closed on March
4, 2004. The BCIS received 278 comments pertaining to the adjustment of
the immigration benefit application fee schedule. This final rule
implements the fee structure as outlined in the proposed rule, without
change except for several nonsubstantive technical changes (described
further below) to update references in light of the Homeland Security
Act and revise references to fees that relate to Department of Justice
(DOJ) proceedings in light of DOJ fee regulations at 8 CFR parts 1003
and 1103. Any applications or petitions mailed, postmarked, or
otherwise filed, on or after April 30, 2004, will require the new fee.
Comments were received from a broad spectrum of individuals and
organizations, including 1 caucus of members of Congress, 16 refugee
and immigrant service organizations, 15 public policy and advocacy
groups, 8 educational institutions, 8 attorney organizations, 2 public
corporations, 37 past and present adopting parents, 2 municipalities,
and 189 other concerned individuals. Many commenters addressed multiple
issues in their comments, and as a result, the number of comments
discussed below in reference to specific issues exceeds the total
number of comments received. All of the comments were carefully
considered before preparing this final rule.
In addition, on January 24, 2003 (at 68 FR 3798), and February 27,
2003 (at 68 FR 8989), the former INS published interim rules first
adjusting fees lower, and then readjusting them to the preexisting
levels, based upon section 457 of the Homeland Security Act of 2002,
Public Law 107-296, and the subsequent repeal of section 457 in section
107 of the Homeland Security Act Amendments of 2003, Div. L. of Public
Law 108-7. The former INS received five comments on the January 24 rule
and one comment on the February 27 rule. Comments included urging the
BCIS to seek appropriated funding to pay for asylum and refugee
services instead of application fees, and contending that the high fees
are putting the benefit of naturalization beyond the reach of many of
our nation's immigrants. In creating the Immigration Examinations Fee
Account, Congress intended that the activities supported by this
account be self-sustaining, and not be funded by tax dollars (Pub. L.
100-459), with the exception of appropriated funds dedicated
specifically towards backlog reduction. The BCIS has been managing this
account consistent with federal law and congressional direction.
Additionally, the BCIS does have the ability to waive fees on a case-
by-case basis. Any applicant or petitioner who has an ``inability to
pay'' the fees may request a fee waiver. This final rule adopts the fee
structure proposed on February 3, 2004, but, in so doing, the BCIS has
reviewed and considered the comments made in response to the January
24, 2003, and February 27, 2003, interim rules.
The following is a discussion of the comments received for the
February 3, 2004, proposed rule and the BCIS' response.
II. Summary of Comments
A. Form I-600/600A, Petition to Classify an Orphan as an Immediate
Relative/Application for Advance Processing of Orphan Petitions
Forty-two comments were received expressing dissatisfaction with
the fee increases associated with Forms I-600 and I-600A, Petition to
Classify an Orphan as an Immediate Relative, and the Application for
Advance Processing of Orphan Petition, respectively. The combined cost
of the Form I-600 and Form I-600A ($525) necessarily reflects the fact
that the Form I-600 and Form I-600A consist of two separate, highly
labor-intensive adjudications.
Adjudication of the Forms I-600 and I-600A ``orphan petitions'' has
been, and continues to be, a priority as evidenced by the commitment
established in the regulations at 8 CFR 204.3(a)(2). Specifically,
orphan petitions are filed at district offices and adjudicated by
experienced District Adjudication Officers. This is due to both the
complexity of the international adoption process in general and the
adjudication process required by statute and regulation. In addition,
because of the importance the BCIS places on international adoptions,
handling these cases in district offices by experienced officers allows
for personalized customer service. District Adjudication Officers may
be in constant contact with the petitioner throughout the process of a
U.S. citizen's effort to adopt a child from abroad. The earliest
contact may be a request for information and forms, followed by the
filing of the Form I-600A and the home study. The adjudication of the
Form I-600A petition requires knowledge of State law requirements
regarding adoptions, including pre-adoption requirements such as
counseling in certain States. Each petition must be accompanied by a
home study, for which there are State requirements as well as Federal
[[Page 20529]]
requirements. Since there is no single national standard, it makes
sense to assign these petitions to adjudication officers located in
district offices that are better able to stay on top of ever-changing
State requirements and establish effective local liaisons.
The home study process is complex and often the adjudication
officer must request that additional information be provided in the
home study. When the child to be adopted is identified, further
information and contact may ensue. To accommodate prospective adoptive
parents, the BCIS allows petitioners to submit supporting evidence
after initial filing of a Form I-600A. Thus, documentation is usually
added to the petition as the adoption process progresses. It is not
unusual for a case to be with the BCIS for several months, demanding an
intense and protracted level of customer service. There may be frequent
communications in person, telephonically, and in writing, between the
BCIS, adoption agencies, social workers, and prospective adoptive
parents.
The home study review makes this petition particularly labor-
intensive. The adjudication officer is tasked with the careful review
of the home study, perhaps 10-20 pages long, addressing a number of
issues including any history of abuse or arrests. This information is
carefully compared against Federal Bureau of Investigation (FBI)
fingerprint checks. If necessary, the officer must request and review
the arrest dispositions of petitioners with criminal records. When
there are discrepancies, the home study must be revised or supplemented
to include the new information and consider the impact it has on the
placement.
The Form I-600 petition establishes eligibility of a child as an
orphan. Adjudication of these petitions requires the BCIS to determine
if the child meets the regulatory definition of an orphan. Accordingly,
the adjudication officer must develop and maintain a level of expertise
in the laws and processes governing adoption in countries from which
children are adopted. This assessment may require working with the
Department of State or BCIS offices overseas to verify the validity of
documents and interpret laws regarding international adoptions in
countries other than the United States.
Finally, the Form I-600 adjudication also includes a Form I-604
investigation. The Form I-604, Request for and Report on Overseas
Orphan Investigation, is used to document the investigations that must
be completed in every orphan case before the Form I-600 can be
approved. It includes: The child's birth name; date and place of birth;
where the child lives; and if the child lives at an orphanage or with
someone other than the biological parent(s), how and why that placement
occurred; the child's physical and mental condition, and information
about any known physical or mental illnesses (e.g., is the child a
special needs child); if the child has siblings, and if so, if the
child lives with the brothers or sisters; information concerning the
child's biological parents and the determination that the child is an
orphan because he or she has a ``sole parent'' or ``surviving parent''
(as defined in the regulations); and any other pertinent facts that the
investigation uncovers. The purpose of the investigation is to verify
that the child is an orphan, address specific concerns articulated by
the adjudicating officer or consular officer that can only be resolved
by an investigation, and resolve significant differences between the
facts presented in the advanced processing application (Form I-600A) or
advanced processing of the application (a Form I-600 approved by a BCIS
office in the United States) and evidence available at later stages of
processing. The investigation is conducted at the overseas visa-issuing
post by the BCIS, or by the Department of State if there is no BCIS
office at that U.S. Embassy or Consulate. A Form I-604 investigation
may require a field investigation entailing travel to a remote location
to establish whether or not a child is actually an orphan.
Since the BCIS relies on fees to recover the full cost of
processing immigration and naturalization benefits, the increase in
fees for the Forms I-600 and I-600A to $525 is necessary to recover the
full costs associated with processing orphan petitions, including
security enhancements instituted post September 11, 2001. Accordingly,
the BCIS will charge a fee of $525 for processing Forms I-600 and I-
600A.
B. How Will the BCIS Improve Service?
One hundred and eighty-one comments were received opposing the
increase in the fees given the current level of services provided by
the BCIS. Many people noted the lengthy waiting times to process their
benefit applications as well as the need to improve overall customer
service.
The BCIS has made progress in many areas of customer service such
as eliminating the lines at a number of its offices (including New York
and Miami), introducing on-line options for certain application filing
and case status updates, and establishing a bilingual, toll-free
customer help-line. Nonetheless, the BCIS is committed to taking
further steps to fundamentally transform the administration of
citizenship and immigration services. Over the coming year, the BCIS
will prioritize customer service and improve application processing
times, in addition to security. The agency has already begun
implementing significant information technology and process
improvements including electronic filing for certain immigration
benefit applications. In FY 2002, the President launched a multi-year
initiative to eliminate the application backlog and ensure a six-month
processing time standard for all immigration benefit applications. The
FY 2005 Budget provides an additional $60 million in appropriated funds
to support this effort for a total of $160 million in funds available
for the backlog efforts. The BCIS plans to achieve the President's goal
by FY 2006.
A number of commenters also suggested that the high fees are
putting immigration benefits beyond the reach of many of our nation's
immigrants. The BCIS does have the ability to waive fees on a case-by-
case basis. Any applicant or petitioner who has an ``inability to pay''
the fees may request a fee waiver. However, it should be noted that the
biometric fee cannot be waived.
A number of commenters also made specific service improvement
ideas, including extending validity periods for Employment
Authorizations and Advance Parole documents beyond the current one
year, issuing fewer Requests for Evidence, and using SEVIS (Student and
Exchange Visitor Information System) information more broadly for other
adjudication purposes. The BCIS welcomes public input in this area and
will consider it as it moves forward to improve customer service. To
the extent processing improvements can be adopted in the future that
further increase efficiency or reduce costs, they will be taken into
account in any future fee adjustments.
Lastly, a number of commenters mentioned the recent General
Accounting Office (GAO) Report on Immigration Application Fees: Current
Fees Are Not Sufficient to Fund U.S. Citizenship and Immigration
Services' Operations. Comments noted that the BCIS does not have a
system to track the status of each application as it moves through the
process. While such a system undoubtedly would provide additional
information on the cost to process pending applications, it is not
necessary in order to identify the cost elements that have led to
shortfalls in the IEFA, will continue to be incurred, and must be
recovered for the BCIS to
[[Page 20530]]
process applications. Those costs, as discussed in the proposed and
this final rule, are the basis for these fee adjustments. Furthermore,
the GAO also concluded that the existing fee schedule is not sufficient
to fully fund the BCIS's operations, that the current fee schedule is
based on a fee study that did not include all costs of the BCIS's
operations, and that costs have increased due to additional processing
requirements and other actions not covered by current fees.
Several commenters noted the significant percentage increase in the
application fees over the last several years. The vast majority of this
increase is attributed to an exhaustive fee review completed in FY
1997, employing an activity-based costing (ABC) methodology to more
accurately capture the direct and indirect costs of providing
immigration and naturalization services. The ABC methodology
represented a significantly improved methodology over previous ones
employed by the former INS. This methodology involved time and motion
studies to capture the cycle times of individual form types, and
allowed the former INS to identify the individual costs of activities
involved in the processing of each application and petition. The
methodology also allowed for the recovery of costs of services provided
to other immigrants at no charge, including services to refugees and
asylum applicants. This improved methodology was the basis for the
significant fee increases in FY 1999. A General Accounting Office
report in September 1998, entitled ``INS User Fee Revisions,'' reviewed
this methodology and concluded that ``On the basis of our discussions
with OMB staff and our review of INS' efforts to identify the costs
associated with processing applications, we believe that INS complied,
to the extent it was able, with available OMB guidance that requires
agencies to recover the full costs of providing services.'' The fee
adjustments in this rule are based on an incremental increase in
application costs of this established methodology.
C. Fee Increases are Necessary
Fifty-six comments were received in favor of the fee increases. In
general, these can be divided into two groups: those who supported the
proposed fee increases as long as they are accompanied with actual
significant improvements in processing times and other customer
service, and those whose support for increased fees was not coupled
with any stated concern about BCIS customer service. A few commenters
stated that the fee increases should be higher. Several others
suggested expanding the premium processing fee to the Form I-485 or
other BCIS applications, while still others supported sharp increases
in EB-5 fees to support the regional center program. Although the
reasons provided for supporting the fee increases, or for supporting
higher fees, varied substantially from general concerns about
immigration levels or the Federal deficit to more specific points about
immigration benefit processing, several of the more frequently stated
rationales included:
(1) Current fees are too low in relation to the value of the
benefit received (U.S. citizenship, for example);
(2) Taxpayers should not pay for the increasing costs of providing
immigration and naturalization benefits;
(3) Fee increases are necessary to enhance security;
(4) Fee increases are justified given the increasing demand for
immigration and naturalization benefits over the last several years;
and
(5) Fee increases are necessary in order to increase the current
level of services.
The BCIS believes that the proposed fee increases will lead to and
support improved services as previously stated, and disagrees with
those commenters who stated that the increases are too small. The BCIS
also notes that the $1,000 premium processing fee is a statutory
authorization (section 286(u) of the Immigration and Nationality Act)
specifically limited to employment-based applications and petitions,
and does not seek in this final rule to expand the premium processing
service.
D. Why Is BCIS Raising the Fees Instead of Seeking Additional Sources
of Funding?
Seventeen commenters urged BCIS to seek additional appropriated
funds to cover the costs of military naturalizations, the Refugee
Corps, and other immigration benefit services, especially those that
the commenters perceived as not directly related to the actual
adjudication of the specific application for which the fee was paid. In
creating the Immigration Examinations Fee Account, Congress intended
that the activities supported by this account be self-sustaining, and
not be funded by tax dollars (Pub. L. 100-459), with the exception of
appropriated funds dedicated specifically towards backlog reduction.
The BCIS has been managing this account consistent with Federal law and
congressional direction.
Some of the individual cost elements are discussed more
specifically below. With respect to all of the challenged elements,
however, the costs are either: (1) Part of the full direct and indirect
costs of providing the adjudication to the applicant under the
principles of Office of Management and Budget (OMB) Circular A-25,
which allocate costs to include, but not be limited to, an appropriate
share of direct and indirect personnel costs, physical overhead,
consulting, other indirect costs, and management and supervisory costs;
or (2) are part of the full costs of providing services to immigrants
other than the applicant, as authorized by section 286(m) of the Act;
or both.
In a variant on these comments, at least one commenter suggested
that because security checks and some other aspects of immigration
services funded by these fees provide a public rather than a purely
personal benefit, the increases are unwarranted and beyond the scope of
the authorizing statutes. Security checks are an integral part of
determining the applicant's eligibility for a benefit and are
appropriately an item that may be fully recovered through the
applicable fee under the OMB Circular A-25 guidance. In addition, the
fact that a process benefits the public interest as well as a private
party does not mean that it cannot be funded by a user fee paid by the
private party. Rather, when the service enables the beneficiary to
obtain more immediate or substantial gains or values than those that
accrue to the general public, a user fee is appropriate. The entire
legal immigration and citizenship process--with respect both to grants
of benefits and to denials for national security or other reasons--is
one that benefits the public as well as private interests, but its
focus on the adjudication of eligibility for individual benefits, as
confirmed by section 286(m) of the Act and other broadly-based fee
authorizing provisions, makes the fee-based structure entirely lawful
and appropriate even when the public as a whole benefits as a result.
As OMB Circular A-25 states at paragraph 6.a.3, ``when the public
obtains benefits as a necessary consequence of an agency's provision of
special benefits to an identifiable recipient (i.e., the public
benefits are not independent of, but merely incidental to, the special
benefits), an agency need not allocate any costs to the public and
should seek to recover from the identifiable recipient either the full
cost to the Federal Government of providing the special benefit or the
market price, whichever applies.'' Furthermore, under the authority of
section 286(m) of the Act, user fees may be used--and are used now--not
only for the benefit of the user
[[Page 20531]]
who paid them and any collateral benefit resulting to the public, but
also to benefit the interests of certain others, such as asylum
applicants, who do not pay fees.
Some of these commenters suggested, in effect, that fees should be
funding of last recourse for immigration services; that is, that the
BCIS should be required to have exhausted all possible means of seeking
appropriated funds before imposing fee increases. The BCIS disagrees
with this characterization. The Immigration and Nationality Act
authorizes the recovery of the full costs of providing immigration and
naturalization services, including services provided free of charge to
many applicants, through application fees. It does not require the BCIS
either to seek or to obtain other sources of funding for this purpose,
although the President has requested, and Congress to date has
provided, appropriations to supplement fee revenues in the area of
backlog reduction.
One commenter expressed surprise that the proposed rule had not
cited 8 U.S.C. 1573 and other indicia of Congress's strong interest in
backlog reduction and directive to the BCIS to achieve this goal. The
proposed rule discussed those legal authorities most directly relevant
to fee-setting authority. The BCIS agrees with the commenter that
Congress desires it to reduce backlogs, and seeks in this rule to
obtain a level of resources that will prevent existing backlogs
actually from increasing.
E. Litigation Settlements
Six commenters strongly objected to the inclusion of litigation
costs as an element in the fee adjustment calculation. As one commenter
correctly stated, ``The Equal Access to Justice Act (`EAJA') mandates
that government agencies pay certain costs when they take a
substantially unjustified position in litigation.'' What the commenter
describes as ``certain costs'' are, more specifically, attorneys' fee
awards, which must be paid from agency budgets rather than from the
Judgment Fund. See 28 U.S.C. 2412(d).
The commenters' assumption that these payments necessarily result
from ``lost'' cases and EAJA awards by courts, though, is mistaken.
Most attorneys'' fee payments arise from settlements in which the
government admits neither legal liability under EAJA or any other
statute, nor that its position was unjustified--and in fact maintains
that its course of conduct was legally correct--but in which the
posture of the case, risk management concerns, and the public interest
support settling the case and putting the litigation to rest. These are
cases in which settlement mutually benefits both parties, otherwise it
would not happen. It is not accurate to state or imply that when the
United States settles civil litigation with an agreement that includes
payment of attorneys' fees it necessarily has ``lost'' the case or has
by the fact of settlement and payment in any way conceded that its
conduct was unlawful or its legal position unjustified.
The comments also fail to recognize that most attorneys' fee
payments are currently paid out of fee receipts. That is the way a fee-
funded agency, without appropriated funds designated for that purpose,
is able to pay them. Accounting for these costs in fee-setting is not a
new imposition on the fee-paying public. In other words, this fee
increase only changes the form in which the fee-paying public bears the
cost of attorneys' fee payments from reduced service on the back end to
a very slightly higher fee payment up front.
The BCIS seeks to minimize its litigation exposure by seeking to
take responsible legal positions both with respect to setting policies
in the first place and the merits of lawsuits against it. The BCIS
would greatly prefer not to have to pay attorneys' fees from its budget
as opposed to what it would view as more productive uses of resources,
but it recognizes its potential obligations under the EAJA statute. It
also recognizes that it cannot avoid a measure of litigation exposure
as a cost of doing the public's business, and it would not be
responsible to pretend that these costs do not exist or that they have
no financial effect on the agency's fee-funded operations.
Instead, the BCIS believes that the more appropriate and
responsible course of action is to account for attorneys' fee awards,
based on actual experience with these costs as an unavoidable element
of providing immigration services. It does this so that the provision
of adjudication services to fee-paying and other BCIS customers will
not be negatively affected by them. To do so does not encourage taking
unjustified positions in litigation.
F. Competitive Sourcing Study
Six commenters objected to the inclusion of the cost of a
competitive sourcing study. The BCIS needs to be open to new methods of
providing immigration and naturalization services that may in time save
the fee-paying public both time and money, and this openness from time
to time requires up-front investment. Whether that is the case with
outsourcing immigration information officers remains to be seen; that
is the purpose of the study. Some of the comments appear to be based
upon objection to outsourcing this or other functions. While the BCIS
respects that view, it disagrees that it is an appropriate basis not to
continue with or to fund the study to determine whether it is a
substantially valid view in this instance.
G. Nicaraguan Adjustment and Central American Relief Act (NACARA) fees
One commenter objected to increasing fees for NACARA-related
applications, primarily on the ground that as an established program
with known standards for adjudication, the cost of processing should be
declining. In response, the BCIS notes that the fee adjustments relate
to costs, including security enhancements conducted since July 2002,
that affect NACARA applicants as much as any others. In addition, the
premise of the comment that experience with a particular program
necessarily results in reduced processing costs is incorrect. The basic
nature of a NACARA adjudication--reviewing the evidence in the
application and case file (which may be voluminous) in light of
relevant legal standards and conducting security and other necessary
record checks--is the same now as it was when the program began.
H. Refugee Corps
Eleven commenters objected to funding refugee processing with fee
revenues. Although the commenters supported free refugee services, in
their view appropriated funds should be used pay for them. This subject
has frequently been discussed in former INS rule making publications
relating to fees. In repealing section 457 of the Homeland Security Act
of 2002 in Public Law 108-7, and thereby restoring the authority of the
BCIS to set fees at a level that will recover the costs of refugee and
asylum processing, fee waivers, and other free services, Congress
reaffirmed its expectation that such services be paid for through the
fee account, after a brief period during which it had withdrawn that
authority.
I. Inflation Adjustment
Several commenters expressed concern about the provision for
inflation adjustments through future notice in the Federal Register,
including a contention that the phrase ``inflation rate enacted by
Congress'' was not clear or specific. This provision will permit the
BCIS to adjust on a timely basis for regular, fixed increases in costs
based on Federal civilian pay increases and non-pay inflationary
increases. The BCIS agrees
[[Page 20532]]
that the phrase should be clarified to more specifically refer to
Federal civilian salary and benefits costs and non-pay costs and
therefore has revised the regulation to reference the pay and non-pay
inflation adjustments that the Office of Management and Budget (OMB)
issues annually for agency use in implementing OMB Circular A-76,
Performance of Commercial Activities. In other words, the regulation
will enable BCIS to adjust its fees and charges on an annual basis
using the inflationary adjustments that the Federal government already
uses under Circular A-76 to reflect the impact of inflation on agency
costs. If Congress enacts a Federal civilian pay inflation factor that
is different than the factor issued by OMB for Circular A-76, BCIS may
adjust for these costs during the current year or in a following year.
III. Fee Adjustments
The fee adjustments, as adopted in this rule, are shown as follows:
New Application and Petition Fees
------------------------------------------------------------------------
Form No. Description Fee
------------------------------------------------------------------------
I-90........... Application to Replace Permanent Resident $185
Card.
I-102.......... Application for Replacement/Initial 155
Nonimmigrant Arrival/Departure Record.
I-129.......... Petition for a Nonimmigrant Worker........ 185
I-129F......... Petition for Alien Fiance(e).............. 165
I-130.......... Petition for Alien Relative............... 185
I-131.......... Application for Travel Document........... 165
I-140.......... Immigrant Petition for Alien Worker....... 190
I-191.......... Application for Permission to Return to an 250
Unrelinquished Domicile.
I-192.......... Application for Advance Permission to 250
Enter as a Nonimmigrant.
I-193.......... Application for Waiver of Passport and/or 250
Visa.
I-212.......... Application for Permission to Reapply for 250
Admission into the U.S. After Deportation
or Removal.
I-360.......... Petition for Amerasian, Widow(er), or 185
Special Immigrant.
I-485.......... Application to Register Permanent 315
Residence or to Adjust Status.
I-526.......... Immigrant Petition by Alien Entrepreneur.. 465
I-539.......... Application to Extend/Change Nonimmigrant 195
Status.
I-600/600A..... Petition to Classify Orphan as an 525
Immediate Relative/Application for
Advance Processing or Orphan Petition.
I-601.......... Application for Waiver of Grounds of 250
Excludability.
I-612.......... Application for Waiver of the Foreign 250
Residence Requirement.
I-687.......... For Filing Application for Status as a 240
Temporary Resident.
I-690.......... Application for Waiver of Excludability... 90
I-694.......... Notice of Appeal of Decision.............. 105
I-695.......... Application for Replacement Employment 65
Authorization or Temporary Residence Card.
I-698.......... Application to Adjust Status from 175
Temporary to Permanent Resident.
I-751.......... Petition to Remove the Conditions on 200
Residence.
I-765.......... Application for Employment Authorization.. 175
I-817.......... Application for Family Unity Benefits..... 195
I-824.......... Application for Action on an Approved 195
Application or Petition.
I-829.......... Petition by Entrepreneur to Remove 455
Conditions.
I-881.......... NACARA--Suspension of Deportation or 275
Application for Special Rule Cancellation
of Removal for adjudication by the
Department of Homeland Security.
I-881.......... NACARA--Suspension of Deportation or 155
Application for Special Rule Cancellation
of Removal for adjudication by the
Immigration Court.
I-914.......... Application for T Nonimmigrant Status..... 255
N-300.......... Application to File Declaration of 115
Intention.
N-336.......... Request for Hearing on a Decision in 250
Naturalization Procedures.
N-400.......... Application for Naturalization............ 320
N-470.......... Application to Preserve Residence for 150
Naturalization Purposes.
N-565.......... Application for Replacement Naturalization 210
Citizenship Document.
N-600.......... Application for Certification of 240
Citizenship.
N-600K......... Application for Citizenship and Issuance 240
of Certificate under Section 322.
For Capturing Biometric Information....... 70
------------------------------------------------------------------------
IV. Technical Improvements
This final rule also makes several minor, nonsubstantive changes to
8 CFR 103.7 that were not included in the proposed rule. In particular,
these changes replace references to the former INS with reference to
the Department of Homeland Security (DHS). In so doing, they conform
the published text of the regulations with the changes already in fact
made to them by the ``deeming'' provision (section 1512(d)) of the
Homeland Security Act. The changes also remove references to Department
of Justice forms and procedures now covered by 8 CFR part 1003. The
reference to the discontinued Form I-290A, which was replaced in 1996
by Forms EOIR-26 and EOIR-29, has also been removed.
The Department of Justice intends to make similar updates and
improvements to its regulations in 8 CFR parts 1003 and 1103. Until
conforming changes are promulgated, the fee adjustments made by this
final rule shall supersede any fee amounts stated in 8 CFR 1103.7(b)
with respect to any fee paid to the Department of Homeland Security by
any person, including any alien in proceedings before the Executive
Office for Immigration Review, to the extent there are any
inconsistencies between the fees as stated in the two regulations.
Good Cause Exception
Although this rule falls under the category of major rule as that
term is defined in 5 U.S.C. 804(2)(A), the DHS finds that under 5
U.S.C. 808(2) and 5 U.S.C. 553(d)(3) good cause exists to make the rule
take effect 15 days from the date of publication in the Federal
Register, for the following reasons: the
[[Page 20533]]
BCIS must collect fee funds to provide immigration and naturalization
benefits, but absent prompt change in the fee schedule, the BCIS will
not have sufficient resources to process immigration benefit
applications and adequately perform its mission. In particular, the
security enhancements funded by the increased fees are important to the
national security interests of the United States. To continue
performing comprehensive security enhancements to fully meet homeland
security needs, it is essential that the BCIS recover the costs of this
workload as promptly as possible. In addition, implementing this rule
at the earliest feasible date will assist the BCIS in enhancing its
services and reducing processing times, which is to the benefit of BCIS
customers and the public interest. In particular, the vast majority of
customers who do not present a danger to the national security or
public safety will benefit from the increased resources available in
this fiscal year through more rapid implementation. Accordingly, the
DHS finds that it would be contrary to the public interest for this
rule to go into effect 60 days after its publication, and that there is
good cause for the rule to go into effect 15 days from its publication.
In order to assist the public and mitigate any potential harmful effect
on customers as a result of this implementation schedule, the BCIS
plans an aggressive outreach and informational campaign involving the
internet and other media resources.
Regulatory Flexibility Act
This rule has been reviewed in accordance with 5 U.S.C. 605(b), and
the Department of Homeland Security certifies that this rule will not
have a significant economic impact on a substantial number of small
entities. The majority of applications and petitions are submitted by
individuals and not small entities as that term is defined in 5 U.S.C.
601(6).
BCIS acknowledges, however, that a number of small entities,
particularly those filing business-related applications and petitions,
such as Form I-140, Immigrant Petition for Alien Worker; Form I-526,
Immigrant Petition by Alien Entrepreneur; and Form I-829, Petition by
Entrepreneur to Remove Conditions, may be affected by this rule. For
the FY 2004/2005 biennial time period, BCIS projects that approximately
190,000 Forms I-140, 435 Forms I-526, and 508 Forms I-829 will be
filed. This volume represents petitions filed by a variety of
businesses, ranging from large multinational corporations to small
domestic businesses. However, even if all of the employers applying for
benefits met the definition of small businesses, the resulting degree
of economic impact would not require a Regulatory Flexibility Analysis
to be performed. None of the public comments indicated that the rule
would have a significant economic impact on small entities.
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 a major rule as defined by section 804 of the Small
Business Regulatory Enforcement Act of 1996. This rule will result in
an annual effect on the economy of more than $100 million, in order to
generate the revenue necessary to fully fund the increased cost
associated with the processing of immigration benefit applications and
associated support benefits; the full cost of providing similar
benefits to asylum and refugee applicants; and the full cost of similar
benefits provided to other immigrants, as specified in the regulation,
at no charge. The increased costs will be recovered through the fees
charged for various immigration benefit applications.
Executive Order 12866
This rule is considered by the Department of Homeland Security to
be a ``significant regulatory action'' under Executive Order 12866,
section 3(f), Regulatory Planning and Review. The implementation of
this final rule would provide BCIS with an additional $232 million in
FY 2004 and $394 million in FY 2005 in annual fee revenue, based on a
projected annual fee-paying volume of 6.8 million applications and
petitions, over the fee revenue that would be collected under the
current fee structure. This increase in revenue will be used pursuant
to subsections 286(m) and (n) of the Immigration and Nationality Act
(Act) to fund the full costs of processing immigration benefit
applications and associated support benefits; the full cost of
providing similar benefits to asylum and refugee applicants; and the
full cost of similar benefits provided to other immigrants at no
charge. Activities not directly comprising the processing of fee paid-
applications are discussed elsewhere in the preamble, such as the
section of the summary of the comments entitled ``Refugee Corps'' and
``Why is BCIS Raising the Fees Instead of Seeking Additional Sources of
Funding?''. If the BCIS 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 BCIS' costs and
projected volumes that were available at the time of the rule.
Accordingly, this rule has been submitted to the Office of Management
and Budget for clearance.
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, the Department of Homeland Security 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.
However, it should be noted that BCIS solicited public comments on
the change of fees in the proposed rule which was published in the
Federal Register on February 3, 2004. It should also be noted that the
changes to the fees will require changes to the application/petition
forms to reflect the new fees. OMB has approved changes to the
appropriate forms, consistent with the provisions in this final rule.
List of Subjects in 8 CFR Part 103
Administrative practice and procedures, Authority delegations
(government agencies), Freedom of Information, Privacy, Reporting and
recordkeeping requirements, Surety bonds.
[[Page 20534]]
0
Accordingly, the interim rules amending 8 CFR part 103 which were
published at 68 FR 3798 on January 24, 2003, and 68 FR 8989 on February
27, 2003, are adopted as a final rule without change. In addition, part
103 of chapter I of title 8 of the Code of Federal Regulations is
amended as follows:
PART 103--POWERS AND DUTIES; AVAILABILITY OF RECORDS
0
1. The authority citation for part 103 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552(a); 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.
0
2. Section 103.7 is amended by:
0
a. Revising paragraph (a);
0
b. In paragraph (b), by removing the entry ``For fingerprinting by the
Service'' and adding the entry ``For capturing biometric information''
in its place, and by revising the entries for the forms set forth
below, except for Form N-600K;
0
c. Adding the entry for ``Form N-600K'' and revising the entry for
``Motion'' the second time it appears in paragraph (b)(1);
0
d. Removing the entries ``Form EOIR-40'', ``Form EOIR-42'', ``Form I-
290A'', ``Form N-643'', and ``Motion'' the first time it appears in
paragraph (b)(1);
0
e. Revising paragraph (b)(2);
0
f. Adding new paragraphs (b)(3) and (b)(4); and by
0
g. Revising paragraph (c).
The revisions and additions read as follows:
Sec. 103.7 Fees.
(a) Remittances.
(1) Fees shall be submitted with any formal application or petition
prescribed in this chapter in the amount prescribed by law or
regulation. Except for fees remitted directly to the Board of
Immigration Appeals pursuant to the provisions of 8 CFR 1003.8, or as
the Attorney General otherwise may provide by regulation, any fee
relating to any Department of Justice Executive Office for Immigration
Review proceeding shall be paid to, and accepted by, any BCIS office
authorized to accept fees. The immigration court does not collect fees.
Payment of any fee under this section does not constitute filing of the
document with the Board of Immigration Appeals or with the Immigration
Court. The Department of Homeland Security shall return to the payer,
at the time of payment, a receipt for any fee paid. The BCIS shall also
return to the payer any documents, submitted with the fee, relating to
any Immigration Court proceeding.
(2) Remittances must be drawn on a bank or other institution
located in the United States and be payable in United States currency.
Fees in the form of postage stamps shall not be accepted. Remittances
to the Department of Homeland Security shall be made payable to the
``Department of Homeland Security'' except that in case of applicants
residing in the Virgin Islands of the United States, the remittances
shall be made payable to the ``Commissioner of Finance of the Virgin
Islands'' and, in the case of applicants residing in Guam, the
remittances shall be made payable to the ``Treasurer, Guam.'' If an
application to the Department of Homeland Security is submitted from
outside the United States, remittance may be made by bank international
money order or foreign draft drawn on a financial institution in the
United States and payable to the Department of Homeland Security.
Remittances to the Board of Immigration Appeals shall be made payable
to the ``United States Department of Justice,'' in accordance with 8
CFR 1003.8. A charge of $30.00 will be imposed if a check in payment of
a fee or any other matter is not honored by the bank or financial
institution on which it is drawn. A receipt issued by a Department of
Homeland Security officer for any remittance shall not be binding upon
the Department of Homeland Security if the remittance is found
uncollectible. Furthermore, legal and statutory deadlines will not be
deemed to have been met if payment is not made within 10 business days
after notification by the Department of Homeland Security of the
dishonored check.
(b) * * *
(1) * * *
* * * * *
For capturing biometric information. A service fee of $70 will
be charged for any individual who is required to have biometric
information captured in connection with an application or petition
for certain immigration and naturalization benefits (other than
asylum), and whose residence is in the United States.
* * * * *
Form I-90. For filing an application for a Permanent Resident
Card (Form I-551) in lieu of an obsolete card or in lieu of one
lost, mutilated, or destroyed, or for a change in name--$185.
* * * * *
Form I-102. For filing a petition for an application (Form I-
102) for Arrival/Departure Record (Form I-94) or Crewman's Landing
(Form I-95), in lieu of one lost, mutilated, or destroyed--$155.
Form I-129. For filing a petition for a nonimmigrant worker--
$185.
* * * * *
Form I-129F. For filing a petition to classify a nonimmigrant as
a fianc[eacute]e or fianc[eacute] under section 214(d) of the Act--
$165.
Form I-130. For filing a petition to classify status of an alien
relative for issuance of an immigrant visa under section 204(a) of
the Act--$185.
Form I-131. For filing an application for travel documents--
$165.
Form I-140. For filing a petition to classify preference status
of an alien on the basis of profession or occupation under section
204(a) of the Act--$190.
Form I-191. For filing an application for discretionary relief
under section 212(c) of the Act--$250.
Form I-192. For filing an application for discretionary relief
under section 212(d)(3) of the Act, except in an emergency case, or
where the approval of the application is in the interest of the
United States Government--$250.
Form I-193. For filing an application for waiver of passport
and/or visa--$250.
Form I-212. For filing an application for permission to reapply
for an excluded, deported or removed alien, an alien who has fallen
into distress, an alien who has been removed as an alien enemy, or
an alien who has been removed at government expense in lieu of
deportation--$250.
* * * * *
Form I-360. For filing a petition for an Amerasian, Widow(er),
or Special Immigrant--$185, except there is no fee for a petition
seeking classification as an Amerasian.
Form I-485. For filing an application for permanent resident
status or creation of a record of lawful permanent residence--$315
for an applicant 14 years of age or older; $215 for an applicant
under the age of 14 years; no fee for an applicant filing as a
refugee under section 209(a) of the Act.
* * * * *
Form I-526. For filing a petition for an alien entrepreneur--
$465.
Form I-539. For filing an application to extend or change
nonimmigrant status--$195.
* * * * *
Form I-600. For filing a petition to classify an orphan as an
immediate relative for issuance of an immigrant visa under section
204(a) of the Act. (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.)--$525.
Form I-600A. For filing an application for advance processing of
orphan petition. (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.)--$525.
Form I-601. For filing an application for waiver of ground of
inadmissibility under section 212(h) or (i) of the Act. (Only a
single application and fee shall be required when the alien is
applying simultaneously for a waiver under both those
subsections.)--$250.
Form I-612. For filing an application for waiver of the foreign-
residence requirement under section 212(e) of the Act--$250.
Form I-687. For filing an application for status as a temporary
resident under section
[[Page 20535]]
245A(a) of the Act. A fee of $240 for each application or $105 for
each application for a minor child (under 18 years of age) is
required at the time of filing with the Department of Homeland
Security. The maximum amount payable by a family (husband, wife, and
any minor children) shall be $585.
Form I-690. For filing an application for waiver of a ground of
inadmissibility under section 212(a) of the Act as amended, in
conjunction with the application under sections 210 or 245A of the
Act, or a petition under section 210A of the Act--$90.
Form I-694. For appealing the denial of an application under
sections 210 or 245A of the Act, or a petition under section 210A of
the Act--$105.
Form I-695. For filing an application for replacement of
temporary resident card (Form I-688)--$65.
Form I-698. For filing an application for adjustment from
temporary resident status to that of lawful permanent resident under
section 245A(b)(1) of the Act. For applicants filing within 31
months from the date of adjustment to temporary resident status, a
fee of $135 for each application is required at the time of filing
with the Department of Homeland Security. The maximum amount payable
by a family (husband, wife, and any minor children (under 18 years
of age living at home)) shall be $405. For applicants filing after
31 months from the date of approval of temporary resident status,
who file their applications on or after July 9, 1991, a fee of $175
(a maximum of $525 per family) is required. The adjustment date is
the date of filing of the application for permanent residence or the
applicant's eligibility date, whichever is later.
* * * * *
Form I-751. For filing a petition to remove the conditions on
residence, based on marriage--$200.
Form I-765. For filing an application for employment
authorization pursuant to 8 CFR 274a.13--$175.
* * * * *
Form I-817. For filing an application for voluntary departure
under the Family Unity Program--$195.
* * * * *
Form I-824. For filing for action on an approved application or
petition--$195.
Form I-829. For filing a petition by entrepreneur to remove
conditions--$455.
Form I-881. For filing an application for suspension of
deportation or special rule cancellation of removal (pursuant to
section 203 of Public Law 105-100):
-- $275 for adjudication by the Department of Homeland Security,
except that the maximum amount payable by family members (related as
husband, wife, unmarried child under 21, unmarried son, or unmarried
daughter) who submit applications at the same time shall be $550.
-- $155 for adjudication by the Immigration Court (a single fee of
$155 will be charged whenever applications are filed by two or more
aliens in the same proceedings). The $155 fee is not required if the
Form I-881 is referred to the Immigration Court by the Department of
Homeland Security.
* * * * *
Form I-914. For filing an application to classify an alien as a
nonimmigrant under section 101(a)(15)(T) of the Act (victims of a
severe form of trafficking in persons and their immediate family
members)--$255. For each immediate family member included on the
same application, an additional fee of $105 per person, up to a
maximum amount payable per application of $510.
Form N-300. For filing an application for declaration of
intention--$115.
Form N-336. For filing a request for hearing on a decision in
naturalization proceedings under section 336 of the Act--$250.
Form N-400. For filing an application for naturalization--$320.
(There is no fee charged for an application filed on or after
October 1, 2004, by an applicant who meets the requirements of
sections 328 or 329 of the Act with respect to military service.)
* * * * *
Form N-470. For filing an application for benefits under section
316(b) or 317 of the Act--$150.
Form N-565. For filing an application for a certificate of
naturalization or declaration of intention in lieu of a certificate
or declaration alleged to have been lost, mutilated, or destroyed;
for a certificate of citizenship in a changed name under section
343(c) of the Act; or for a special certificate of naturalization to
obtain recognition as a citizen of the United States by a foreign
state under section 343(b) of the Act--$210.
Form N-600. For filing an application for a certificate of
citizenship under section 309(c) or section 341 of the Act--$240,
for applications filed on behalf of a biological child and $200 for
applications filed on behalf of an adopted child.
Form N-600K. For filing an application for citizenship and
issuance of certificate under section 322 of the Act--$240, for an
application filed on behalf of a biological child and $200 for an
application filed on behalf of an adopted child.
* * * * *
Motion. For filing a motion to reopen or reconsider any decision
under the immigration laws in any type of proceeding over which the
Executive Office for Immigration Review does not have jurisdiction.
No fee shall be charged for a motion to reopen or reconsider a
decision on an application for relief for which no fee is chargeable
or for any motion to reopen or reconsider made concurrently with any
initial application for relief under the immigration laws for which
no fee is chargeable. (The fee of $110 shall be charged whenever an
appeal or motion is filed by or on behalf of two or more aliens and
all such aliens are covered by one decision. When a motion to reopen
or reconsider is made concurrently with any application for relief
under the immigration laws for which a fee is chargeable, the motion
is filed and, if the motion is granted, the requisite fee for filing
the application for relief will be charged and must be paid within
the time specified in order to complete the application.)--$110.
* * * * *
(2) Fees for production or disclosure of records under 5 U.S.C. 552
shall be charged in accordance with the regulations of the Department
of Homeland Security at 6 CFR 5.11.
(3) The fees prescribed in paragraph (b)(1) of this section shall
be adjusted annually on or after October 1, 2005, by publication of an
inflation adjustment. The inflation adjustment will be announced by
notice in the Federal Register, and the adjustment shall be a composite
of the Federal civilian pay raise assumption and non-pay inflation
factor for that fiscal year issued by the Office of Management and
Budget for agency use in implementing OMB Circular A-76, weighted by
pay and non-pay proportions of total funding for that fiscal year. If
Congress enacts a different Federal civilian pay raise percentage than
the percentage issued by OMB for Circular A-76, the Department of
Homeland Security may adjust the fees, during the current year or a
following year to reflect the enacted level. The prescribed fee or
charge shall be the amount prescribed in paragraph (b)(1) of this
section, plus the latest inflation adjustment, rounded to the nearest
$5 increment.
(4) For the schedule of fees relating to proceedings before the
immigration judges and the Board of Immigration Appeals, see 8 CFR
1103.7.
(c) Waiver of fees. (1) Except as otherwise provided in this
paragraph (c), any of the fees prescribed in paragraph (b) of this
section relating to applications, petitions, appeals, motions, or
requests may be waived by the Department of Homeland Security in any
case under its jurisdiction in which the alien or other party affected
is able to substantiate that he or she is unable to pay the prescribed
fee. The person seeking a fee waiver must file his or her affidavit, or
unsworn declaration made pursuant to 28 U.S.C. 1746, asking for
permission to prosecute without payment of fee of the application,
petition, appeal, motion, or request, and stating his or her belief
that he or she is entitled to or deserving of the benefit requested and
the reasons for his or her inability to pay. The officer of the
Department of Homeland Security having jurisdiction to render a
decision on the application, petition, appeal, motion, or request may,
in his or her discretion, grant the waiver of fee. Fees for ``Passenger
Travel Reports via Sea and Air'' and for special statistical
tabulations may not be waived. The payment of the additional sum
prescribed by section 245(i) of the Act
[[Page 20536]]
when applying for adjustment of status under section 245 of the Act may
not be waived. The fee for Form I-907, Request for Premium Processing
Services, may not be waived. For provisions relating to the authority
of the immigration judges or the Board to waive fees prescribed in
paragraph (b) of this section in cases under their jurisdiction, see 8
CFR 1003.24 and 1003.8.
(2) Fees under the Freedom of Information Act, as amended, may be
waived or reduced where the Department of Homeland Security determines
such action would be in the public interest because furnishing the
information can be considered as primarily benefiting the general
public.
(3) When the prescribed fee is for services to be performed by the
clerk of court under section 344(a) of the Act, the affidavit for
waiver of the fee shall be filed with the district director or officer
in charge of the BCIS having administrative jurisdiction over the place
in which the court is located at least 7 days prior to the date the fee
is required to be paid. If the waiver is granted, there shall be
delivered to the clerk of court by a BCIS representative on or before
the date the fee is required to be paid, a notice prepared on BCIS
letterhead and signed by the officer granting the waiver, that the fee
has been waived pursuant to this paragraph.
(4) Fees for applications for Temporary Protected Status may be
waived pursuant to 8 CFR 244.20.
* * * * *
Dated: April 13, 2004.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 04-8699 Filed 4-13-04; 3:38 pm]
BILLING CODE 4410-10-P