Application Process for Replacing Forms I-551 Without an Expiration Date, 46922-46930 [E7-16311]
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Federal Register / Vol. 72, No. 162 / Wednesday, August 22, 2007 / Proposed Rules
Authority: Pub. L. 107–296, 116 Stat. 2135,
6 U.S.C. 101 et seq.; 5 U.S.C. 301. Subpart A
also issued under 5 U.S.C. 552. Subpart B
also issued under 5 U.S.C. 552a.
2. At the end of Appendix C to Part
5, add the following new paragraph ‘‘5’’
to read as follows:
Appendix C—DHS Systems of Records
Exempt from the Privacy Act
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*
*
*
*
*
5. The Department of Homeland Security
Arrival and Departure Information System
(ADIS) consists of centralized computerized
records and will be used by DHS and its
components. ADIS is the primary repository
of data held by DHS for near real-time
immigrant and non-immigrant status tracking
through pre-entry, entry, status management,
and exit processes, based on data collected
by DHS or other Federal or foreign
government agencies and used in connection
with DHS national security, law enforcement,
immigration, intelligence, and other DHS
mission-related functions, and to provide
associated testing, training, management
reporting, planning and analysis, or other
administrative uses. The information is
collected by, on behalf of, in support of, or
in cooperation with DHS and its components
and may contain personally identifiable
information collected by other Federal, state,
local, tribal, foreign, or international
government agencies.
Pursuant to exemptions 5 U.S.C. 552a(j)(2)
of the Privacy Act, this system is exempt
from 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1),
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5), (e)(8);
(f); and (g). Pursuant to 5 U.S.C. 552a (k)(2),
this system is exempt from the following
provisions of the Privacy Act, subject to the
limitations set forth in those subsections: 5
U.S.C. 552a (c)(3); (d); (e)(1), (e)(4)(G),
(e)(4)(H); and (f). Exemptions from these
particular subsections are justified, on a caseby-case basis to be determined at the time a
request for release or disclosure is made, for
the following reasons:
(a) From subsection (c)(3) and (4)
(Accounting for Disclosures) because release
of the accounting of disclosures could alert
the subject of an investigation of an actual or
potential criminal, civil, or regulatory
violation to the existence of that investigation
and reveal investigative interest on the part
of DHS as well as the recipient agency.
Disclosure of the accounting would therefore
present a serious impediment to law
enforcement efforts and/or efforts to preserve
national security. Disclosure of the
accounting would also permit the individual
who is the subject of a record to impede the
investigation, to tamper with witnesses or
evidence, and to avoid detection or
apprehension, which would undermine the
entire investigative process.
(b) From subsection (d) (Access to Records)
because access to the records contained in
this system of records could inform the
subject of an investigation of an actual or
potential criminal, civil, or regulatory
violation to the existence of that investigation
and reveal investigative interest on the part
of DHS or another agency. Access to the
records could permit the individual who is
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the subject of a record to impede the
investigation, to tamper with witnesses or
evidence, and to avoid detection or
apprehension. Amendment of the records
could interfere with ongoing investigations
and law enforcement activities and would
impose an unreasonable administrative
burden by requiring investigations to be
continually reinvestigated. In addition,
permitting access and amendment to such
information could disclose security-sensitive
information that could be detrimental to
homeland security.
(c) From subsection (e)(1) (Relevancy and
Necessity of Information) because in the
course of investigations into potential
violations of Federal law, the accuracy of
information obtained or introduced
occasionally may be unclear, or the
information may not be strictly relevant or
necessary to a specific investigation. In the
interests of effective law enforcement, it is
appropriate to retain all information that may
aid in establishing patterns of unlawful
activity.
(d) From subsection (e)(2) (Collection of
Information from Individuals) because
requiring that information be collected from
the subject of an investigation would alert the
subject to the nature or existence of the
investigation, thereby interfering with that
investigation and related law enforcement
activities.
(e) From subsection (e)(3) (Notice to
Subjects) because providing such detailed
information could impede law enforcement
by compromising the existence of a
confidential investigation or reveal the
identity of witnesses or confidential
informants.
(f) From subsections (e)(4)(G) and (H) and
(f) (Agency Requirements) because portions
of this system are exempt from the individual
access provisions of subsection (d) and thus
would not require DHS to apply rules for
records or portions of records which are
exempted from access or amendment upon
request. Access to, and amendment of,
system records that are not exempt or for
which exemption is waived may be obtained
under procedures described in the related
system of records notice (SORN) or Subpart
B of this Part.
(g) From subsection (e)(5) (Collection of
Information) because with the collection of
information for law enforcement purposes, it
is impossible to determine in advance what
information is accurate, relevant, timely, and
complete. Compliance with subsection (e)(5)
would preclude DHS agents from using their
investigative training and exercise of good
judgment to both conduct and report on
investigations.
(h) From subsection (e)(8) (Notice on
Individuals) because compliance would
interfere with DHS’s ability to obtain, serve,
and issue subpoenas, warrants, and other law
enforcement mechanisms that may be filed
under seal and could result in disclosure of
investigative techniques, procedures, and
evidence.
(i) From subsection (g) (Civil Remedies) to
the extent that the system is exempt from
other specific subsections of the Privacy Act.
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Dated: August 15, 2007.
John Kropf,
Acting Chief Privacy Officer, Department of
Homeland Security.
[FR Doc. E7–16461 Filed 8–21–07; 8:45 am]
BILLING CODE 4410–10–P
DEPARTMENT OF HOMELAND
SECURITY
U.S. Citizenship and Immigration
Services
8 CFR Parts 1, 264, and 299
[CIS No. 2354–05; DHS Docket No. USCIS–
2005–0056]
RIN 1615–AB36
Application Process for Replacing
Forms I–551 Without an Expiration
Date
U.S. Citizenship and
Immigration Services, DHS.
ACTION: Notice of proposed rulemaking.
AGENCY:
SUMMARY: U.S. Citizenship and
Immigration Services (USCIS) issues
Permanent Resident Cards (Forms I–
551) to lawful permanent residents to
serve as evidence of immigration status,
registration, identity, and employment
authorization, and as an entry document
upon return from a trip outside of the
United States. Currently, there are
numerous lawful permanent residents
who possess cards without expiration
dates. USCIS intends to terminate the
validity of such Forms I–551. This rule
proposes to establish a 120-day period
for lawful permanent residents who
have Forms I–551 that do not bear
expiration dates to apply for
replacement cards. This rule also
proposes to amend USCIS regulations to
remove references to outdated
application procedures for Forms I–551.
The application process proposed by
this rule will enable USCIS to issue
more secure Forms I–551 to affected
aliens, update cardholder information,
conduct background checks, and
electronically store applicants’
biometric information that can be used
for biometric comparison and
authentication purposes consistent with
the goals of the Enhanced Border
Security and Visa Entry Reform Act of
2002.
In addition, USCIS proposes to notify
the public of the termination date for
Forms I–551 without expiration dates by
a subsequent Notice published in the
Federal Register. This rule also
proposes to correct the title and edition
date of the ‘‘Application to Replace
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Lawful Permanent Resident Card,’’
Form I–90.
DATES: Written comments must be
submitted on or before September 21,
2007.
ADDRESSES: You may submit comments,
identified by DHS Docket No. USCIS–
2005–0056, by one of the following
methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• E-mail: You may submit comments
directly to USCIS by e-mail at
rfs.regs@dhs.gov. Include DHS Docket
No. USCIS–2005–0056 in the subject
line of the message.
• Mail: The Chief, Regulatory
Management Division, U.S. Citizenship
and Immigration Services, Department
of Homeland Security, 111
Massachusetts Avenue, NW., 3rd Floor,
Washington, DC 20529. To ensure
proper handling, please reference DHS
Docket No. USCIS–2005–0056 on your
correspondence. This mailing address
may also be used for paper, disk, or CD–
ROM submissions.
• Hand Delivery/Courier: U.S.
Citizenship and Immigration Services,
Department of Homeland Security, 111
Massachusetts Avenue, NW., 3rd Floor,
Washington, DC 20529. Contact
Telephone Number is (202) 272–8377.
FOR FURTHER INFORMATION CONTACT: R.
Mark Phillips, Supervisory
Adjudications Policy Officer, U.S.
Citizenship and Immigration Services,
20 Massachusetts Ave., Suite 2304,
Washington, DC 20529, telephone (202)
272–8350.
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to
participate in this rulemaking by
submitting written data, views, or
arguments on all aspects of the
proposed rule. The Department of
Homeland Security (DHS) and U.S.
Citizenship and Immigration Services
(USCIS) also invite comments that relate
to the economic or federalism effects
that might result from this proposed
rule. Comments that will provide the
most assistance to USCIS will reference
a specific portion of the proposed rule,
explain the reason for any
recommended change, and include data,
information, or authority to support
such recommended change.
Instructions: All submissions received
must include the agency name and DHS
docket No. USCIS–2005–0056 for this
rulemaking. All comments received will
be posted without change to https://
www.regulations.gov, including any
personal information provided. See
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above for information on
how to submit comments.
Docket: For access to the docket to
read background documents or
comments received, go to https://
www.regulations.gov. Submitted
comments may also be inspected at the
office of the Director, Regulatory
Management Division, U.S. Citizenship
and Immigration Services, Department
of Homeland Security, 111
Massachusetts Avenue, NW., 3rd Floor,
Washington, DC 20529.
ADDRESSES
II. Background
A. Statutory and Regulatory Authority
and Purpose
A lawful permanent resident (LPR) is
an alien who has been granted the
privilege of permanently living and
working in the United States (lawful
permanent resident status), either by
adjusting status from a prior
immigration status within the United
States or by being admitted to the
United States on an immigrant visa
issued abroad by the U.S. Department of
State (DOS). In most cases, USCIS must
first approve an immigrant petition for
the intending immigrant. Typically,
these petitions are filed by an employer
(e.g., Form I–140, Immigrant Petition for
Alien Worker) or relative (Form I–130,
Petition for Alien Relative). After the
petition is granted, individuals living
within the United States can apply for
adjustment of status with USCIS or, for
those in removal proceedings, the
immigration court, using Form I–485,
‘‘Application to Register Permanent
Residence or Adjust Status.’’
Individuals living abroad must file an
application for an immigrant visa with
a DOS consular office. See 22 CFR
42.63(a)(1) (DS–230, Application for
Immigrant Visa and Alien Registration).
As part of the adjustment of status
application process, applicants are
required to appear at a local USCIS
Application Support Center (ASC) and
submit to registration and biometrics
capture by USCIS. Biometrics capture
currently includes fingerprint imaging
and a digital photograph. Following
approval of an adjustment application
or after admission to the United States
on an immigration visa, the new LPR
will receive a Form I–551, Permanent
Resident Card.1 (commonly referred to
as a ‘‘green card’’). A Form I–551 is
evidence of the holder’s authorization to
live and work in the United States. See
1 Form I–551 has two titles—Alien Registration
Receipt Card and Permanent Resident Card—
because it underwent a name change in January 20,
1999 from ‘‘Alien Registration Receipt Card’’ to
‘‘Permanent Resident Card,’’ and both versions of
Form I–551 remain in circulation. 63 FR 70313
(Dec. 21, 1998).
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Immigration and Nationality Act (INA)
sections 264(d), 274A(b)(1)(B)(ii) (8
U.S.C. 1304(d), 1324a(b)(1)(B)(ii)); 8
CFR 264.1(b); 8 CFR
274a.2(b)(1)(v)(A)(2).
USCIS has been authorized to collect
information and require the registration
of aliens under section 262 of the INA,
8 U.S.C. 1302. Aliens registering with
USCIS are required to provide
information regarding the date and
place of the alien’s entry into the United
States; the activities in which the alien
has been and intends to be engaged; the
length of time the alien expects to
remain in the United States; the police
and criminal record, if any, of the alien;
and any additional matters prescribed
by DHS or DOS. INA sec. 264(a), 8
U.S.C. 1304(a). All registered aliens over
18 years of age must carry evidence of
registration. INA sec. 264(e), 8 U.S.C.
1304(e). The failure to carry evidence of
registration is a misdemeanor offense.
Id. The Form I–551 is a form of evidence
of registration issued to individuals who
are LPRs. 8 CFR 264.1(b). The Form I–
551 also serves as evidence of
employment authorization and identity
(see 8 CFR 274a.2(b)(1)(v)(A)(2)), and is
used as an entry document upon return
from a trip outside the United States
(see 8 CFR 211.1(a)(2)).
Until 1989, Forms I–551 issued to
LPRs did not contain expiration dates;
therefore, those still in circulation do
not require periodic replacement. See
Memorandum from Commissioner
James L. Buck on Alien Registration
Documentation (Form I–551) (July 18,
1989).2 In August 1989, however, the
then-Immigration and Naturalization
Service (INS) began issuing Forms I–551
with a 10-year expiration date, thereby
requiring the cardholder to apply
periodically for a new card, and, in so
doing, appear before USCIS to update
personal information, the photograph
contained on the card, and other
biometric information, such as
fingerprints. See 8 CFR 264.5(a), (b), (c);
Instructions to Form I–90, ‘‘Application
to Replace Permanent Resident Card.’’
The Form I–551 replacement process
gives DHS an opportunity to collect
updated biometric information, conduct
background checks, and issue updated
cards.
When the 10-year Form I–551 was
introduced in 1989, it was not
administratively feasible for the INS to
terminate the validity of all the millions
of Forms I–551 in circulation that did
not have expiration dates. USCIS now
2 The public can access a copy of this
memorandum from the public docket for this
rulemaking at https://www.regulations.gov, DHS
Docket No. USCIS–2005–0056.
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Federal Register / Vol. 72, No. 162 / Wednesday, August 22, 2007 / Proposed Rules
has established processes to enable it to
require LPRs with Forms I–551 without
expiration dates to apply for new cards
and terminate the validity of Forms I–
551 without expiration dates. These
processes include the establishment, in
1997 and 1998, of Application Support
Centers (ASCs) across the United States
that, through electronic scheduling of
appointments, currently serve as
efficient intake centers. In addition,
biometrics began to be captured
electronically in 1999. Finally, USCIS
implemented a new, highly-automated
filing procedure in May 2005 where
applicants file their Forms I–90 with a
U.S. Treasury Department-designated
and operated lockbox provider that
allows USCIS to process the
applications and associated fees more
expeditiously. As a result of these
improvements, USCIS now has the
capability to process a large influx of
Forms I–90 over a short period of time.
The need to remove Forms I–551
without expiration dates from
circulation is supported by the
Enhanced Border Security and Visa
Entry Reform Act of 2002 (‘‘BSA’’),
Public Law 107–173, 116 Stat. 543 (May
14, 2002), amended by Public Law 108–
299, 118 Stat. 1100 (Aug. 9, 2004).
Section 302(b)(1) of the BSA, 8 U.S.C.
1732(b)(1), requires the Secretary of
Homeland Security and the Secretary of
State, to issue, not later than October 26,
2004, only machine-readable, tamperresistant visas and other travel and entry
documents that use biometrics
identifiers. The Form I–551 falls within
the scope of the BSA because, in
addition to serving as evidence of
registration, it also serves as an entry
document for LPRs returning to the
United States after a trip abroad. See 8
CFR 211.1(a)(2).
Prior to October 26, 2004, USCIS
determined that the Form I–551 was
compliant with the requirements of
section 302(b)(1) of the BSA, 8 U.S.C.
1732(b)(1). The Form I–551, including
the version that does not contain an
expiration date, is machine-readable
and contains tamper-resistant features
and biometrics identifiers. While
compliant, older versions of the Form I–
551 without expiration dates do not
contain the same level of tamperresistant features and biometric
identifiers as the current version. Forms
I–551 with expiration dates must be
renewed periodically, at which point
USCIS can issue new cards containing
updated technologies and biometrics
information. This is not possible for
Forms I–551 without expiration dates.
Consequently, in order to ensure that
the Forms I–551 in circulation contain
the higher level of tamper-resistant
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features and biometric identifiers that
currently-issued cards contain, USCIS
intends to terminate the validity of
Forms I–551 without expiration dates.
In addition, USCIS must ensure that it
maintains current biometrics to enable it
to conduct background checks on Form
I–551 holders to confirm that they are
compliant with the laws of the United
States and that they are not a threat to
national security. By periodically
requiring all Form I–551 holders to
apply for replacement cards, USCIS will
be able to confirm this information and
update background and biometric
information.
For these reasons, USCIS proposes to
set the form, manner and time that alien
registration receipt cards are issued as
authorized under section 264(d) of the
INA, 8 U.S.C. 1304(d). The rule
proposes to amend the regulations to
require bearers of Forms I–551 without
expiration dates to apply for a
replacement card during a 120-day
application period. This proposed rule
also amends the regulations governing
the application process for replacing
Forms I–551 and makes technical
corrections to the title of the application
used to replace Forms I–551. Finally,
this rule proposes a mechanism for
terminating Forms I–551 without an
expiration date by notice in the Federal
Register.
B. Changes Made by This Rule
1. Requirement To Replace Forms I–551
Without Expiration Dates
This rule proposes to amend 8 CFR
264.5(c)(1) to add Form I–551 without
an expiration date to the current list of
outdated permanent resident cards that
are required to be replaced by the filing
of Form I–90, ‘‘Application to Replace
Permanent Resident Card.’’ The current
list consists of Forms AR–3, AR–103,
and I–151. This proposed amendment
also would impose a 120-day
application period for those LPRs
holding Forms I–551 without an
expiration date to apply for a
replacement card. Through the Form
I–90 application process, applicants
would be required to provide their
current biographic and biometric
information. Based on this information,
USCIS would conduct security checks
to verify the identity of card recipients
and continued eligibility for LPR status.
USCIS would charge the standard, Form
I–90 application fee and the biometric
information collection service fee to
cover all associated costs. The current
fees are $290 for the Form I–90 and $80
for the biometric information collection
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service.3 After completion of the 120day application period, USCIS would
set a termination date for the validity of
such Forms I–551.
USCIS believes that an application
period of 120 days will be sufficient for
affected LPRs to learn of the new
requirement and to complete the
required Form I–90. USCIS plans to
conduct an extensive outreach program
to alert the affected group of LPRs of the
need to apply for new cards. This
outreach program would include issuing
press releases, posting program
announcements and question-andanswer (Q&A) documents to the USCIS
website, distributing fliers and
pamphlets at USCIS field offices, and
conducting informational meetings with
community-based organizations (CBOs).
USCIS also will encourage applicants to
file the Form I–90 electronically, rather
than on paper. In general, USCIS can
process I–90 applications submitted
electronically faster than those
applications filed on paper. The
application form itself is not
complicated and takes an estimated
average time of 55 minutes to complete.
USCIS seeks public comment on the
application period.
After the 120-day application period
expires, LPRs who failed to timely file
Forms I–90 to replace their Forms I–551
would still be required to apply for a
replacement card. An alien who fails to
file a Form I–90 during this application
period will still hold the status of an
alien who has been lawfully admitted
for permanent residence, since this
status continues until it is terminated by
entry of a removal order against the
alien. 8 CFR 1.1(p). The alien will not,
however, be in compliance with the
requirement under section 264(e) of the
Act, 8 U.S.C. 1304(e), that the alien
must have in his or her possession at all
times the evidence of his or her having
registered. To obtain new evidence of
registration, the alien will need to file a
Form I–90. For any alien who does not
file before the application period
expires, however, USCIS would not be
able to ensure that the alien will receive
a new Form I–551 before the old Form
I–551 is deemed to have expired.
Strictly speaking, an alien who is at
least 18 years old, who fails to file a
timely Form I–90, and whose current
Form I–551, therefore, expires, could be
prosecuted for violating section 264(e).
3 If an applicant is able to demonstrate that he or
she is unable to pay the standard Form I–90 fee
and/or the biometric service fee associated with the
filing of a Form I–90, he or she may request a fee
waiver pursuant to 8 CFR 103.7(c). However, at
present, USCIS does not waive the biometric service
fee associated with the filing of a Form I–90. 69 FR
20528, 20529 (Apr. 15, 2004).
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If convicted, the person could be
sentenced to pay a fine of up to $100,
to imprisonment for up to 30 days, or
both. It is also a misdemeanor under
section 266(a) of the Act, 8 U.S.C.
1306(a), for an alien to fail to register as
required. The alien can be prosecuted
for failure to register, however, only if
the failure to register is proven to be
willful. USCIS does not anticipate that
either of these criminal sanctions would
be routinely used against aliens who fail
to obtain new Forms I–551. The far
more common action, should USCIS
discover that an alien’s Form I–551 has
expired, will be to advise the alien to
file a Form I–551 to obtain a new Form
I–551. If the alien still fails to apply for
a new Form I–551, it may become
feasible to prove that the failure to do
so is willful. USCIS anticipates,
however, that aliens will, generally,
comply with the requirement to obtain
a new Form I–551, once they become
aware of the requirement.
Once implemented as a final rule,
LPRs affected by the requirements
proposed under this rule may choose to
apply for naturalization during the 120day application period instead of a new
Form I–551. However, USCIS would not
be able to guarantee the completion of
its adjudication of such naturalization
applications before it terminates the
validity of Forms I–551 without
expiration dates. For those LPRs who
have applied for, but do not receive, a
grant of naturalization by the time
USCIS sets the termination date, USCIS
may issue interim evidence of
registration.
2. Termination of the Validity of Forms
I–551 Without an Expiration Date
Forms I–551 without an expiration
date will remain valid throughout the
120-day application period that will be
set by the final rule for replacing such
Forms I–551. After the 120-day
application period, USCIS will assess
the number of applications received and
the timeframes for application
processing and card production. Once
USCIS has processed the applications
and issued replacement Forms I–551,
USCIS will be in a position to set a date
for terminating the validity of Forms I–
551 without expiration dates. This rule
proposes amendments to 8 CFR
264.5(c)(1) to provide that USCIS will
announce the termination date after the
120-day application period through a
Notice published in the Federal
Register.
USCIS is proceeding in this way to
minimize the possibility that applicants
will not have received a replacement
Form I–551 in hand when the validity
of their previous Form I–551 is
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terminated. USCIS cannot precisely
estimate the number of applications it
will receive to allow USCIS to plan
exact timelines for card production and,
in turn, a termination date. USCIS will
only be able to set timelines based upon
the actual volume of applications
received. Issuing a separate Notice
published in the Federal Register to
advise the public of the termination of
the validity of Forms I–551 without
expiration dates would allow USCIS to
implement a termination date that
accommodates USCIS’s processing
needs and applicants’ need for valid
documentation.
In addition to establishing the
mechanism for terminating Forms I–551
without expiration dates, this rule also
clarifies that ‘‘Form I–551,’’ when used
elsewhere in the regulations, means a
valid, unexpired Form I–551. To do so,
this proposed rule would amend the list
of terms defined in 8 CFR 1.1 by adding
a limiting definition of Form I–551.
Current regulations do not define Form
I–551; instead, the regulations identify
its uses. As stated earlier in this
Supplementary Information, the
regulations identify Form I–551 as an
entry document in 8 CFR 211.1(a)(2),
evidence of registration in 8 CFR
264.1(b), an immigration status
document in 8 CFR 274a.12(a)(1), and a
combination identity and employment
authorization document in 8 CFR
274a.2(b)(1)(v)(A)(2). These references
to Form I–551 apply to both the version
of the card with an expiration date and
the version of the card without an
expiration date. This rule proposes
introducing a limiting definition of
Form I–551 rather than amend each
reference so that it is clear to the public
what constitutes a valid Form I–551
with respect to any of its uses,
particularly following the termination
date of the validity of Forms I–551
without an expiration date. This rule
proposes to limit the term, ‘‘Form I–
551’’ to mean the version of the form
with an expiration date. See proposed 8
CFR 1.1(AA). A Form I–551 that does
not bear an expiration date would not be
valid for any use under the regulations
unless otherwise specifically provided
in the regulations. Id.
Until the validity of Forms I–551
without an expiration is terminated via
Notice published in the Federal
Register, this rule, at 8 CFR 264.1(c)(1),
proposes that such Forms I–551 would
remain valid. To do otherwise would
have the effect of prematurely
terminating the validity of Forms I–551.
The current regulations permit the use
of expired Forms I–551 in other
circumstances as well. For example, an
expired Form I–551 may be used for
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46925
entry to the United States and for
presenting evidence of identity to an
employer. 8 CFR 211.3 (entry); 8 CFR
274a.2(b)(1)(v)(B)(1)(v) (identity). Under
this proposed rule, such Forms I–551
and those without expiration dates
would remain valid in these instances.
It is important to note that the
planned termination of Forms I–551
without expiration dates as proposed
under this rule would not affect the
immigration status and employment
authorization of the holders of such
cards; they remain LPRs and their
employment is authorized incident to
status. See INA 274A(h)(3)(A), 8 U.S.C.
1324a(h)(3)(A); 8 CFR 274a.12(a).
Under the requirements proposed in
this rule, an LPR who fails to obtain a
new Form I–551 by the I–551
termination date would not be in
possession of a valid Form I–551. As a
result, he or she may experience
difficulties in meeting other
requirements where valid
documentation is necessary. For
example, the LPR with an invalid Form
I–551 may experience difficulty
returning to the United States after a trip
abroad or in obtaining new
employment, and would not be in
possession of valid registration
documentation. See 8 CFR 211.1(a)
(entry to the United States); 8 CFR
274a.2(b)(1)(v)(A) (employment ); 8 CFR
264.1(b) (registration).
3. Changes to the Application Process
for Replacing Forms I–551
This rule also proposes amending the
regulations at 8 CFR 264.5(e) to update
the application procedures for replacing
Forms I–551. Current regulations at 8
CFR 264.5(e) cover the following
application requirements: The
documentation that must accompany
Form I–90 upon filing, including the
Permanent Resident Card being
replaced, photographs, evidence of
name change, and signature on the Data
Collection Form (Form I–89); proper
filing locations; fingerprint submissions;
interviews; and waiver of the
photograph, in-person filing, and
signature requirements. Form I–90
processing procedures are also provided
in the instructions to the Form I–90.
Because the form instructions are more
current, some of the information in the
form instructions reflect changes to
procedures that are not also reflected in
8 CFR 264.5(e). Whereas 8 CFR
264.5(e)(1) requires the submission of
photographs and supporting
documentary evidence with the
application upon filing, current form
instructions provide that this biometric
information and evidence will be
accepted by USCIS when the applicant
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appears at an Application Support
Center (ASC) (a USCIS facility that
captures biometrics) following
submission of the application. In
addition, 8 CFR 264.5(e)(2)(i) provides
that applicants must file Forms I–90
with the local office or Service Center
having jurisdiction over their place of
residence; instructions to the Form I–90
provide that the application must be
submitted to the lockbox address
specified in the instructions or filed
electronically. Finally, while 8 CFR
264.5(e)(3)(i) only requires applicants
who are replacing their Permanent
Resident Cards because they have
reached 14 years of age to submit to
fingerprinting, the instructions to the
Form I–90 require all applicants to
appear at a USCIS ASC to submit to
biometrics capture. Biometrics capture
is a broader term than fingerprinting
and covers fingerprints, photographs,
and signatures. 69 FR 5088, 5090 (Feb.
3, 2004) (proposing a fee increase for
biometric capture services, as well as
other immigration and naturalization
benefits and services).
To ensure that applicants receive
clear and consistent filing information,
this rule proposes to revise 8 CFR
264.5(e) in its entirety to remove
outdated filing instructions, refer
applicants to the instructions
accompanying the form, and update
biometrics capture requirements.
Proposed 8 CFR 264.5(e) includes a
paragraph on filing requirements,
biometrics capture, and interviews.
Rather than specify the filing
requirements, this proposed rule refers
applicants to the Form I–90
instructions. Proposed 8 CFR
264.5(e)(1). The Form I–90, including
the filing instructions, is available on
the USCIS Web site at https://
www.uscis.gov. USCIS has determined
that filing information is better placed
in form instructions alone, which are
reviewed and updated periodically and
are more accessible to the public than
regulatory provisions. By providing one
source for stating the filing
requirements, USCIS will avoid
confusion and potential conflict
between the requirements stated in the
regulations and those stated in the form
instructions.
This rule also proposes to amend
USCIS regulations to reflect the
biometrics capture requirements in the
current Form I–90 instructions.
Proposed 8 CFR 264.5(e)(2). Those
instructions require all applicants to
appear at an ASC for biometrics capture
and pay a separate biometrics fee with
the Form I–90 filing. By contrast, the
current regulations require all
applicants to provide a photograph and
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15:31 Aug 21, 2007
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signature, but only require individuals
replacing their Form I–551 on the basis
that they have turned 14 years of age to
be subject to fingerprinting. See 8 CFR
264.5(e)(3)(i). This rule proposes to
amend the regulations to require all
applicants to submit to all of the types
of biometrics capture, including
fingerprinting. USCIS is proposing to
expand the fingerprinting requirement
to all Form I–90 applicants to enable
USCIS to obtain current biometrics
information needed for Form I–551 card
production, conduct appropriate
background checks before cards are
issued, and store this information for
biometrics comparison and
authentication purposes required by
section 302(b)(2)(A) of the BSA, 8 U.S.C.
1732(b)(2)(A).
Note, in particular, that this proposed
rule would change the current provision
in current 8 CFR 264.5(e)(3)(iii)
concerning the USCIS authority to
waive the submission of biometric
information. In light of the security
concerns arising from the September 11,
2001, terrorist attack on the United
States, it has been USCIS policy not to
exercise this authority by actually
waiving the photograph or other
requirements. See Memorandum from
William R. Yates for Regional Directors
and Center Directors, Alterations to the
ADIT photograph requirements
(September 4, 2003) Memorandum from
Johnny N. Williams for Regional
Directors, Waiver of Photograph for I–90
Applicants Seeking Replacement or
Renewal Form I–551 (February 14,
2003). The Memoranda are included in
the public docket for this rule at
https://www.regulations.gov, DHS Docket
No. USCIS–2005–56. A Form I–551
without a photograph of the person to
whom it relates does not serve the
essential purpose of the Form I–551: To
provide for a ready means of identifying
the actual person who has been lawfully
admitted for permanent residence. In
the case of an alien who is physically
unable to come to a USCIS facility due
to advanced age or physical infirmity,
the practice has not been actually to
waive the photograph and other
biometrics requirements. Instead, the
practice has been to provide an
alternative means for collecting this
evidence. The most common practice is
to permit the applicant to provide
passport-style photographs, police
clearance letters, and other appropriate
evidence.
The rule, once final, would retain the
provisions governing waivers of the
biometrics capture requirement in
current 8 CFR 264.5(e)(3)(iii) and
interviews in current 8 CFR
264.5(e)(3)(ii), except that the provisions
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are renumbered to new 8 CFR
264.5(e)(2) and (e)(3). In addition, the
rule simplifies the text of these
provisions; no substantive changes are
proposed.
This rule also proposes technical
corrections to 8 CFR 299.1 and 299.5 by
adding the updated edition date (03/31/
05) and title of the Form I–90 to those
sections. The Form I–90’s proper title is
‘‘Application to Replace Permanent
Resident Card.’’ The form was revised to
reflect this title; however, the
regulations listing immigration forms
were never revised.
III. Regulatory Requirements
A. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
(5 U.S.C. 605(b)), as amended by the
Small Business Regulatory Enforcement
and Fairness Act of 1996 (SBRFA),
requires an agency to prepare and make
available to the public a regulatory
flexibility analysis that describes the
effect of the rule on small entities (i.e.,
small businesses, small organizations,
and small governmental jurisdictions).
DHS has considered the impact of this
rule on small entities and has
determined that this rule will not have
a significant economic impact on a
substantial number of small entities.
The individual lawful permanent
residents to whom this rule applies are
not small entities as that term is defined
in 5 U.S.C. 601(6). There is no change
expected in any process as a result of
this rule that would have a direct effect,
either positive or negative, on a small
entity. Accordingly, this rule, once final,
will not have a significant economic
impact on a substantial number of small
entities.
B. Unfunded Mandates Reform Act of
1995
This rule will not result in the
expenditure by State, local and tribal
governments in the aggregate of $100
million or more in any one year.
However, as discussed below under
Executive Order 12866, this action will
result in the expenditure by the private
sector of more than $100 million over
the period of time that the program is in
place. Only holders of Forms I–551,
‘‘Permanent Resident Cards,’’ without
expiration dates will bear the costs of
this rule.
C. 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 Fairness Act of
1996. This rule, once final, will result in
an effect on the economy of
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approximately $290 million in the first
year after this rule is published, $24
million in the second year after this rule
is published, and $13 million in the
third year after this rule is published.
This increase is directly associated with
the expected increase in the number of
Forms I–90 and amount of
accompanying filing and biometrics fees
that USCIS will receive to replace Forms
I–551, ‘‘ Permanent Resident Cards,’’
without expiration dates prior to
termination of such cards.
D. Executive Order 12866
This rule has been identified as an
economically significant rule under
Executive Order 12866, section 3(f)(1),
Regulatory Planning and Review.
Accordingly, this rule has been
submitted to the Office of Management
and Budget for review. USCIS has
assessed both the costs and benefits of
this rule, as required by Executive Order
12866, and has made a reasoned
determination that the benefits justify
the costs.
USCIS estimates that 750,000 persons
will apply for a replacement Form I–
551, ‘‘Permanent Resident Card,’’ in
accordance with this rule. The most
likely estimated cost of this rule for
these persons is $327 million over a
three-year period of analysis (2007–
2009). Over the three-year period of
analysis, the present value cost of this
proposed rule is approximately $267
million at 7%. A three-year period of
analysis was chosen since those aliens
who are required by this rulemaking to
obtain a new Form I–551 will do so only
in 2007, 2008, and 2009. The $327
million estimate consists of $278
million in fees associated with the Form
I–90, $42 million in opportunity cost for
an applicant’s time, and $7 million in
transportation costs for round trip
transit to the nearest USCIS Application
Support Center (ASC). The calendar
year breakdown of these costs is $290
million for Calendar Year (CY) 2007
($278 million in fees plus $12 million
in applicant time and transportation
costs), $24 million for CY 2008
(applicant time and transportation
costs), and $13 million for CY 2009
(applicant time and transportation
costs). The cost assessment, which
includes a discussion of both the
maximum and most likely estimated
costs of this rule, follows.
In an effort to improve the security of
the documents that USCIS issues for use
by the public, this rule calls for a 120day period, beginning 30 days from the
date of publication of the final rule in
the Federal Register, within which time
LPRs holding Forms I–551 without
expiration dates must apply to replace
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15:31 Aug 21, 2007
Jkt 211001
their card. To apply, they must file
Form I–90 with a fee of $290 and an
additional biometrics capture fee of $80.
The total current cost is $370.
Those who apply for a replacement
Form I–551 under this rule must submit
biometrics that will be used for
background checks and stored for future
use. Based on technology and processes
being developed by DHS, stored
biometrics will be available for access
by DHS for other immigration and law
enforcement uses (a security benefit to
the public at large), and these applicants
might not need to return to an ASC for
purposes of triggering certain
background checks such as FBI
fingerprints, should they decide to
naturalize or apply for a replacement
Form I–551 in the future.
The primary benefit to the
government resulting from this rule is
enhanced national security. Once the
program is complete, all LPRs will have
Forms I–551 with late-model
technology. The biometrics of the
rightful holder will be electronically
stored in a secure DHS database that is
easily retrievable and that can be used
for data matching purposes among the
DHS components. The card itself will
bear a current photograph, facilitating
its use by employers and the travel
industry.
USCIS considered a number of
alternatives to this proposed
rulemaking. One alternative was for
USCIS to maintain the current
regulations. However, such an action
would result in the agency’s failure to
fully meet the goals of section 303(b) of
the BSA, 8 U.S.C. 1732(b). Another
alternative was to expire pre-1989 cards,
but lower the fees for replacing the
cards. However, under this alternative,
the agency would fail to meet its general
obligation to ensure that the fees for
such services are established at rates
that allow the agency to recoup its costs,
and would unfairly transfer the costs of
this program to all other applicants for
benefits and services from USCIS. See
OMB Circular A–25 (available at
https://www.whitehouse.gov/omb/
circulars/a025/a025.html).
USCIS data indicates that the number
of Forms I–551 without an expiration
date issued, minus the number of
persons known to have held these cards
before naturalizing, is 1.9 million.
Consequently, the maximum number of
aliens impacted by this rule is 1.9
million.4 The direct cost to each
applicant for replacement of a card
4 As stated above, and as explained below, USCIS
only anticipates that 750,000 persons will apply for
a replacement card. This discussion uses the figure
1.9 million instead to reflect the maximum number
of persons that may be impacted by this rule.
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46927
under this program is $370 in fees ($290
for the application plus $80 for the
biometrics capture fee). These costs fall
exclusively upon individuals who
possess cards issued before August of
1989 and which do not have an
expiration date. Because these persons
would not otherwise have to acquire
new cards, and would not otherwise
have all their biometrics captured, we
believe these fees would be generated
only by this new rule. Based upon these
figures, this rule will cost applicants a
maximum of $703 million in fees ($370
× 1.9 million).
Furthermore, each member of this
group would be required to spend two
hours and 55 minutes complying with
this rule. USCIS estimates that each
applicant will spend ten minutes
reading the application Form I–90
instructions. Each applicant also will
take ten minutes to complete the form
and thirty-five minutes to assemble and
submit the form, for a total of 55
minutes of each applicant’s time.
Applicants will also be required to
travel to the nearest USCIS Application
Support Center (ASC). While travel
times and distances will vary, USCIS
estimates the average round-trip to an
ASC will be 20 miles, and that the
average time for that trip will be an
hour. It will take an average of one hour
for an applicant to wait for service, and
to have his or her biometrics collected.
Total time for each applicant to
comply with this requirement is two
hours and fifty-five minutes. The
Bureau of Labor Statistics reports in its
2006 national compensation survey that
the average, U.S.-employed person
earned $19.29 an hour (BLS Web site).
In addition, the average wage of this
large group should mimic the national
average. Consequently, USCIS believes
that $19.29 an hour is a reasonable
proxy to use to value the opportunity
cost of time for the applicants subject to
this rule. The total cost for applicant
time spent is calculated as $107 million
(1.9 million persons × 2.916 hours ×
$19.29).
Additionally, there is the cost of
travel. USCIS anticipates most
applicants will drive privately-owned
vehicles to the ASCs. GSA’s published
decision of February 1, 2007, on this
subject calculates the cost of operating
a privately-owned vehicle as 48.5 cents
a mile. (GSA Web site, reporting on
findings for February 1, 2007).
Therefore, USCIS calculates the
transportation costs as $19 million (1.9
million persons × 48.5 cents per mile ×
20 miles).
Thus, if all holders of cards issued
without expiration dates filed a
replacement application, the total
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Federal Register / Vol. 72, No. 162 / Wednesday, August 22, 2007 / Proposed Rules
maximum cost of the program would
consist of $703 million in fees, $107
million in time, and $19 million in
transportation costs. The total maximum
cost of compliance to this rule by 1.9
million persons is $829 million ($703
million + $107 million + $19 million).
Notwithstanding, experience from the
replacement program for an earlier,
now-invalid version of the Permanent
Resident Card (Form I–151) has shown
that a portion of these applicants will
apply for naturalization rather than
replace their Permanent Resident Cards
and thus significantly reduce the overall
cost of this rule. Other holders of
affected cards may be deceased, may
have relinquished their United States
residence, or may have previously
replaced their cards for other reasons,
such as the replacement of a lost or
mutilated card. In addition, some
potential applicants may choose not to
spend time and money to replace their
cards, because they do not habitually
travel outside the United States. Some
potential applicants, in spite of USCIS’s
public relations efforts, may not learn of
the requirement that such cards be
changed. Also, some cards may be in
possession of persons who obtained
them fraudulently or who have
committed serious criminal offenses
since obtaining their cards. USCIS
theorizes that these persons may choose
not to take the perceived risk of
contacting DHS and of calling into
question their right to be in the United
States.
USCIS accordingly estimates the most
likely outcome of this program is that
750,000 persons issued cards without
expiration dates, but not yet recorded as
naturalized, will apply for replacement
cards under this rule. USCIS calculates
the cost of the primary estimate as $327
million ($829 million × 0.395 or 750,000
of 1.9 million maximum applicants).
Based on the formulas provided above,
USCIS’s $327 million estimate consists
of $278 million in fees associated with
the Form I–90, $42 million in
opportunity costs for an applicant’s
time, and $7 million in transportation
costs for round trip transit to the nearest
USCIS Application Support Center.
Accounting Statement
As required by OMB Circular A–4
(available at https://
www.whitehouse.gov/omb/circulars/
a004/a-4.html), in Table 1, USCIS has
prepared an accounting statement
showing the classification of the
expenditures associated with this
economically significant rule. The table
provides USCIS’s primary or most likely
estimate of the dollar amount of these
costs expressed on an annualized basis
and also includes USCIS’s maximum
annualized estimate at both the three
percent and seven percent discount
rates. The period of analysis is three
years (2007, 2008, and 2009). Based on
USCIS’s primary or most likely estimate,
the undiscounted total cost of this rule
will be approximately $327 million.
USCIS anticipates that the duration of
the I–551 replacement card program
implemented by the final rule will be
three (3) years. Consequently, when the
undiscounted total cost is broken down
into calendar years, this rulemaking is
expected to cost $290 million in 2007,
$24 million in 2008, and $13 million in
2009. Below is the expected annualized
cost of this rulemaking, at both 3% and
7%, over the three year period of
analysis. Enhanced security and the
capabilities accompanying the storage of
full fingerprint sets for subsequent
retrieval constitute non-quantified
benefits.
OMB #: 1615–0082
Agency/Program Office: DHS/USCIS
Rule Title: Application Process for
Replacing Forms I–551 without an
Expiration Date
RIN#: 1615–AB36
CLASSIFICATION OF EXPENDITURES, CY 2007 THROUGH CY 2009
[2006 Dollars]
Primary
estimate
Category
BENEFITS
Minimum
estimate
Enhanced Border Control, More secure alien
registration document
Monetized benefits
Annualized quantified, but un-monetized, benefits ........................................
(Unquantified) benefits ....................................................................................
COSTS
Annualized monetized costs at 3 percent .............................................................
Annual monetized costs at 7 percent ....................................................................
Annualized quantified, but un-monetized, costs ....................................................
Qualitative (unquantified) costs
TRANSFERS
Annualized monetized transfers: ‘‘on budget’’ .......................................................
From whom to whom?
Annualized monetized transfers: ‘‘off-budget’’ .......................................................
From whom to whom?
NA ................
Enhanced
Security.
yshivers on PROD1PC62 with PROPOSALS
on
on
on
on
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17:45 Aug 21, 2007
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Preamble
NA ................
NA
$89.07 million
per year.
$99.85 million
per year.
NA ................
NA ................
NA ................
NA
NA ................
NA ................
NA ................
NA
NA ................
NA ................
NA ................
NA
Effects
State, local, and/or Tribal governments ...............................................
small businesses ..................................................................................
wages ...................................................................................................
growth ...................................................................................................
Source
citation
(RIA,
preamble,
etc.)
NA ................
Category
Effects
Effects
Effects
Effects
Maximum
estimate
NA
NA
NA
NA
Sfmt 4702
................
................
................
................
NA
NA
NA
NA
................
................
................
................
E:\FR\FM\22AUP1.SGM
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Source citation (RIA,
preamble,
etc.)
NA
NA
NA
NA
................
................
................
................
NA
NA
NA
NA
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E. Executive Order 13132
This proposed 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, it is determined that this
rule does not have sufficient federalism
implications to warrant the preparation
of a federalism summary impact
statement.
8 CFR Part 299
Immigration, Reporting and
recordkeeping requirements.
PART 1—DEFINITIONS
1. The authority citation for part 1
continues to read as follows:
Authority: 8 U.S.C. 1101; 8 U.S.C. 1103; 5
U.S.C. 301; Public Law 107–296, 116 Stat.
2135 (6 U.S.C. 1 et seq.).
2. Section 1.1(aa) is added to read as
follows:
§ 1.1
Definitions.
*
F. Executive Order 12988 Civil Justice
Reform
This proposed rule meets the
applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive
Order 12988.
G. Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995, Public Law 104–13, all
departments are required to submit to
the Office of Management and Budget
(OMB), for review and approval, any
reporting requirements inherent in a
rule. This rule includes an approved
information collection. The OMB
control number for this collection is
1615–0082 and is contained in 8 CFR
299.5. However, this rule will increase
the number of respondents and the
burden hours, and public costs.
Accordingly, when this rule is finalized,
USCIS will submit to OMB for approval
an 83–C Change Worksheet that reflects
any change in Form I–90 filings and any
related changes to the public costs
associated with this collection.
List of Subjects
8 CFR Part 1
Administrative practice and
procedure, Immigration.
8 CFR Part 264
Reporting and recordkeeping
requirements.
*
*
*
*
(aa) The term Form I–551 means a
Permanent Resident Card, or an Alien
Registration Receipt Card, issued on a
Form I–551 with an expiration date.
Unless otherwise specifically provided
in this chapter I, a Form I–551 is not
valid for any use under this chapter I
unless it bears an expiration date and is
unexpired.
PART 264—REGISTRATION AND
FINGERPRINTING OF ALIENS IN THE
UNITED STATES
3. The authority citation for part 264
continues to read as follows:
Authority: 8 U.S.C. 1103, 1201, 1303–1305;
8 CFR part 2.
4. Section 264.5 is amended by:
a. Revising paragraph (c)(1); and by
b. Revising paragraph (e).
The revisions read as follows:
§ 264.5 Application for a replacement
Permanent Resident Card.
*
*
*
*
*
(c) * * *
(1) A permanent resident must apply
on Form I–90 to replace a prior edition
of the Alien Registration Receipt Card
issued on Form AR–3, AR–103, or I–
151. A permanent resident must apply
between October 22, 2007 and February
19, 2008 on Form I–90 to replace a prior
edition of Form I–551 without an
expiration date. A permanent resident
who fails to apply during this 120-day
Form No.
Edition date
*
*
*
I–90 ..............................................................................................
yshivers on PROD1PC62 with PROPOSALS
*
§ 299.5
*
*
*
03/31/05
*
application period still must apply to
replace a Form I–551 without an
expiration date but might not be issued
a replacement Form I–551 before the
termination of the validity of all Forms
I–551 without an expiration date. USCIS
will announce the termination date of
the validity of Forms I–551 without an
expiration date in a Notice published in
the Federal Register. Forms I–551
without an expiration date will remain
valid until such termination date.
*
*
*
*
*
(e) Application process—(1) Filing
requirements. Form I–90 must be filed
in accordance with the instructions on
the form.
(2) Biometrics capture. If the
application is properly filed, the
applicant will receive a notice to appear
in person at a USCIS facility for
biometrics capture. In the case of an
applicant who is physically incapable,
because of the applicant’s confinement
due to advanced age or physical
infirmity, of appearing at a USCIS
facility for biometrics capture, USCIS
may excuse the applicant’s personal
appearance at a USCIS facility and
provide an appropriate alternative
means for obtaining the applicant’s
photograph or other biometrics
information.
(3) Interview. An applicant may be
required to appear in person before an
immigration or consular officer and be
interviewed under oath in connection
with this application.
*
*
*
*
*
PART 299—IMMIGRATION FORMS
5. The authority citation for part 299
continues to read as follows:
Authority: 8 U.S.C. 1101 and note, 1103; 8
CFR part 2.
6. Section 299.1 is amended in the
table by revising the entry for Form ‘‘I–
90’’, to read as follows:
§ 299.1
*
Prescribed forms.
*
*
*
*
*
Application to Replace Permanent Resident Card
*
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Title and description
7. Section 299.5 is amended in the
table by revising the entry for Form ‘‘I–
90’’, to read as follows:
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46930
Federal Register / Vol. 72, No. 162 / Wednesday, August 22, 2007 / Proposed Rules
Currently assigned
OMB control No.
Form No.
Form title
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I–90 ..........................................................................................
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Application to Replace Permanent Resident Card .................
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Michael Chertoff,
Secretary.
[FR Doc. E7–16311 Filed 8–21–07; 8:45 am]
BILLING CODE 4410–10–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 71
[Docket No. FAA–200–28869; Airspace
Docket No. 07–ACE–11]
Proposed Establishment of Class E5
Airspace; Tarkio, MO
Federal Aviation
Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking.
yshivers on PROD1PC62 with PROPOSALS
AGENCY:
SUMMARY: This action proposes to
establish Class E airspace at Gould
Peterson Municipal Airport, Tarkio,
MO. The development of an Area
Navigation (RNAV) Standard Instrument
Approach Procedure (SIAP) to serve
flights operating into the Gould Peterson
Municipal Airport during Instrumental
Flight Rules (IFR) conditions makes this
action necessary. Controlled airspace
extending upward from 700 feet Above
Ground Level (AGL) is needed to
contain aircraft executing an approach.
The area would be depicted on
aeronautical charts for pilot reference.
DATES: Comments must be received on
or before October 1, 2007.
ADDRESSES: Send comments on this
proposal to the Docket Management
System, U.S. Department of
Transportation, Docket Operations, M–
30, West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue, SE.,
Washington, DC 20590. You must
identify the docket number FAA–2007–
28869/Airspace Docket No. 07–ACE–11,
at the beginning of your comments. You
may also submit comments on the
Internet at https://dms.dot.gov. You may
review the public docket containing the
proposal, any comments received, and
any final disposition in person in the
Dockets Office between 9 a.m. and 5
p.m., Monday through Friday, except
Federal holidays. The Docket Office
(telephone 1–800–647–5527) is on the
ground floor of the building at the above
address.
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FOR FURTHER INFORMATION CONTACT:
Grant Nichols, System Support, DOT
Regional Headquarters Building, Federal
Aviation Administration, 901 Locust,
Kansas City, MO 64106; telephone:
(816) 329–2522.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested parties are invited to
participate in this proposed rulemaking
by submitting such written data, views,
or arguments, as they may desire.
Comments that provide the factual basis
supporting the views and suggestions
presented are particularly helpful in
developing reasoned regulatory
decisions on the proposal. Comments
are specifically invited on the overall
regulatory, aeronautical, economic,
environmental, and energy-related
aspects of the proposal.
Communications should identify both
docket numbers and be submitted in
triplicate to the address listed above.
Commenters wishing the FAA to
acknowledge receipt of their comments
on this notice must submit with those
comments a self-addressed, stamped
postcard on which the following
statement is made: ‘‘Comments to
Docket No. FAA–2007–28869/Airspace
Docket No. 07–ACE–11.’’ The postcard
will be date/time stamped and returned
to the commenter.
Availability of NPRMs
An electronic copy of this document
may be downloaded through the
Internet at https://dms.dot.gov. Recently
published rulemaking documents can
also be accessed through the FAA’s Web
page at https://www.faa.gov or the
Superintendent of Documents’ Web
page at https://www.access.gpo.gov/nara.
Additionally, any person may obtain
a copy of this notice by submitting a
request to the Federal Aviation
Administration (FAA), Office of Air
Traffic Airspace Management, ATA–
400, 800 Independence Avenue, SW.,
Washington, DC 20591, or by calling
(202) 267–8793. Communications must
identify both docket numbers for this
notice. Persons interested in being
placed on a mailing list for future
NPRMs should contact the FAA’s Office
of Rulemaking (202) 267–9677, to
request a copy of Advisory Circular No.
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1615–0082
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11–2A, Notice of Proposed Rulemaking
Distribution System, which describes
the application procedure.
The Proposal
The FAA is proposing to amend Title
14 Code of Federal Regulations (14 CFR)
part 71 by establishing Class E airspace
at Tarkio, MO. Controlled airspace is
necessary to accommodate aircraft using
the new RNAV(GPS) IAP at Gould
Peterson Municipal Airport. This action
would enhance the safety and
management of aircraft operations at
Gould Peterson Municipal Airport,
Tarkio, MO.
Class E airspace areas extending
upward from 700 feet or more above the
surface of the earth are published in
Paragraph 6005 of FAA Order 7400.9P,
dated September 1, 2006, and effective
September 16, 2006, which is
incorporated by reference in 14 CFR
71.1. The Class E airspace designations
listed in this document would be
published subsequently in the Order.
The FAA has determined that this
proposed regulation only involves an
established body of technical
regulations for which frequent and
routine amendments are necessary to
keep them operationally current. It,
therefore, (1) is not a ‘‘significant
regulatory action’’ under Executive
Order 12866; (2) is not a ‘‘significant
rule’’ under DOT Regulatory Policies
and Procedures (44 FR 11034; February
26, 1979); and (3) does not warrant
preparation of a Regulatory Evaluation
as the anticipated impact is so minimal.
Since this is a routine matter that will
only affect air traffic procedures and air
navigation, it is certified that this rule,
when promulgated, will not have a
significant economic impact on a
substantial number of small entities
under the criteria of the Regulatory
Flexibility Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference,
Navigation (Air).
The Proposed Amendment
In consideration of the foregoing, the
Federal Aviation Administration
proposes to amend 14 CFR part 71 as
follows:
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[Federal Register Volume 72, Number 162 (Wednesday, August 22, 2007)]
[Proposed Rules]
[Pages 46922-46930]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-16311]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Citizenship and Immigration Services
8 CFR Parts 1, 264, and 299
[CIS No. 2354-05; DHS Docket No. USCIS-2005-0056]
RIN 1615-AB36
Application Process for Replacing Forms I-551 Without an
Expiration Date
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: U.S. Citizenship and Immigration Services (USCIS) issues
Permanent Resident Cards (Forms I-551) to lawful permanent residents to
serve as evidence of immigration status, registration, identity, and
employment authorization, and as an entry document upon return from a
trip outside of the United States. Currently, there are numerous lawful
permanent residents who possess cards without expiration dates. USCIS
intends to terminate the validity of such Forms I-551. This rule
proposes to establish a 120-day period for lawful permanent residents
who have Forms I-551 that do not bear expiration dates to apply for
replacement cards. This rule also proposes to amend USCIS regulations
to remove references to outdated application procedures for Forms I-
551. The application process proposed by this rule will enable USCIS to
issue more secure Forms I-551 to affected aliens, update cardholder
information, conduct background checks, and electronically store
applicants' biometric information that can be used for biometric
comparison and authentication purposes consistent with the goals of the
Enhanced Border Security and Visa Entry Reform Act of 2002.
In addition, USCIS proposes to notify the public of the termination
date for Forms I-551 without expiration dates by a subsequent Notice
published in the Federal Register. This rule also proposes to correct
the title and edition date of the ``Application to Replace
[[Page 46923]]
Lawful Permanent Resident Card,'' Form I-90.
DATES: Written comments must be submitted on or before September 21,
2007.
ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2005-0056, by one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: You may submit comments directly to USCIS by e-
mail at rfs.regs@dhs.gov. Include DHS Docket No. USCIS-2005-0056 in the
subject line of the message.
Mail: The Chief, Regulatory Management Division, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529. To
ensure proper handling, please reference DHS Docket No. USCIS-2005-0056
on your correspondence. This mailing address may also be used for
paper, disk, or CD-ROM submissions.
Hand Delivery/Courier: U.S. Citizenship and Immigration
Services, Department of Homeland Security, 111 Massachusetts Avenue,
NW., 3rd Floor, Washington, DC 20529. Contact Telephone Number is (202)
272-8377.
FOR FURTHER INFORMATION CONTACT: R. Mark Phillips, Supervisory
Adjudications Policy Officer, U.S. Citizenship and Immigration
Services, 20 Massachusetts Ave., Suite 2304, Washington, DC 20529,
telephone (202) 272-8350.
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of the
proposed rule. The Department of Homeland Security (DHS) and U.S.
Citizenship and Immigration Services (USCIS) also invite comments that
relate to the economic or federalism effects that might result from
this proposed rule. Comments that will provide the most assistance to
USCIS will reference a specific portion of the proposed rule, explain
the reason for any recommended change, and include data, information,
or authority to support such recommended change.
Instructions: All submissions received must include the agency name
and DHS docket No. USCIS-2005-0056 for this rulemaking. All comments
received will be posted without change to https://www.regulations.gov,
including any personal information provided. See ADDRESSES above for
information on how to submit comments.
Docket: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov. Submitted comments
may also be inspected at the office of the Director, Regulatory
Management Division, U.S. Citizenship and Immigration Services,
Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd
Floor, Washington, DC 20529.
II. Background
A. Statutory and Regulatory Authority and Purpose
A lawful permanent resident (LPR) is an alien who has been granted
the privilege of permanently living and working in the United States
(lawful permanent resident status), either by adjusting status from a
prior immigration status within the United States or by being admitted
to the United States on an immigrant visa issued abroad by the U.S.
Department of State (DOS). In most cases, USCIS must first approve an
immigrant petition for the intending immigrant. Typically, these
petitions are filed by an employer (e.g., Form I-140, Immigrant
Petition for Alien Worker) or relative (Form I-130, Petition for Alien
Relative). After the petition is granted, individuals living within the
United States can apply for adjustment of status with USCIS or, for
those in removal proceedings, the immigration court, using Form I-485,
``Application to Register Permanent Residence or Adjust Status.''
Individuals living abroad must file an application for an immigrant
visa with a DOS consular office. See 22 CFR 42.63(a)(1) (DS-230,
Application for Immigrant Visa and Alien Registration).
As part of the adjustment of status application process, applicants
are required to appear at a local USCIS Application Support Center
(ASC) and submit to registration and biometrics capture by USCIS.
Biometrics capture currently includes fingerprint imaging and a digital
photograph. Following approval of an adjustment application or after
admission to the United States on an immigration visa, the new LPR will
receive a Form I-551, Permanent Resident Card.\1\ (commonly referred to
as a ``green card''). A Form I-551 is evidence of the holder's
authorization to live and work in the United States. See Immigration
and Nationality Act (INA) sections 264(d), 274A(b)(1)(B)(ii) (8 U.S.C.
1304(d), 1324a(b)(1)(B)(ii)); 8 CFR 264.1(b); 8 CFR
274a.2(b)(1)(v)(A)(2).
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\1\ Form I-551 has two titles--Alien Registration Receipt Card
and Permanent Resident Card--because it underwent a name change in
January 20, 1999 from ``Alien Registration Receipt Card'' to
``Permanent Resident Card,'' and both versions of Form I-551 remain
in circulation. 63 FR 70313 (Dec. 21, 1998).
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USCIS has been authorized to collect information and require the
registration of aliens under section 262 of the INA, 8 U.S.C. 1302.
Aliens registering with USCIS are required to provide information
regarding the date and place of the alien's entry into the United
States; the activities in which the alien has been and intends to be
engaged; the length of time the alien expects to remain in the United
States; the police and criminal record, if any, of the alien; and any
additional matters prescribed by DHS or DOS. INA sec. 264(a), 8 U.S.C.
1304(a). All registered aliens over 18 years of age must carry evidence
of registration. INA sec. 264(e), 8 U.S.C. 1304(e). The failure to
carry evidence of registration is a misdemeanor offense. Id. The Form
I-551 is a form of evidence of registration issued to individuals who
are LPRs. 8 CFR 264.1(b). The Form I-551 also serves as evidence of
employment authorization and identity (see 8 CFR
274a.2(b)(1)(v)(A)(2)), and is used as an entry document upon return
from a trip outside the United States (see 8 CFR 211.1(a)(2)).
Until 1989, Forms I-551 issued to LPRs did not contain expiration
dates; therefore, those still in circulation do not require periodic
replacement. See Memorandum from Commissioner James L. Buck on Alien
Registration Documentation (Form I-551) (July 18, 1989).\2\ In August
1989, however, the then-Immigration and Naturalization Service (INS)
began issuing Forms I-551 with a 10-year expiration date, thereby
requiring the cardholder to apply periodically for a new card, and, in
so doing, appear before USCIS to update personal information, the
photograph contained on the card, and other biometric information, such
as fingerprints. See 8 CFR 264.5(a), (b), (c); Instructions to Form I-
90, ``Application to Replace Permanent Resident Card.'' The Form I-551
replacement process gives DHS an opportunity to collect updated
biometric information, conduct background checks, and issue updated
cards.
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\2\ The public can access a copy of this memorandum from the
public docket for this rulemaking at https://www.regulations.gov, DHS
Docket No. USCIS-2005-0056.
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When the 10-year Form I-551 was introduced in 1989, it was not
administratively feasible for the INS to terminate the validity of all
the millions of Forms I-551 in circulation that did not have expiration
dates. USCIS now
[[Page 46924]]
has established processes to enable it to require LPRs with Forms I-551
without expiration dates to apply for new cards and terminate the
validity of Forms I-551 without expiration dates. These processes
include the establishment, in 1997 and 1998, of Application Support
Centers (ASCs) across the United States that, through electronic
scheduling of appointments, currently serve as efficient intake
centers. In addition, biometrics began to be captured electronically in
1999. Finally, USCIS implemented a new, highly-automated filing
procedure in May 2005 where applicants file their Forms I-90 with a
U.S. Treasury Department-designated and operated lockbox provider that
allows USCIS to process the applications and associated fees more
expeditiously. As a result of these improvements, USCIS now has the
capability to process a large influx of Forms I-90 over a short period
of time.
The need to remove Forms I-551 without expiration dates from
circulation is supported by the Enhanced Border Security and Visa Entry
Reform Act of 2002 (``BSA''), Public Law 107-173, 116 Stat. 543 (May
14, 2002), amended by Public Law 108-299, 118 Stat. 1100 (Aug. 9,
2004). Section 302(b)(1) of the BSA, 8 U.S.C. 1732(b)(1), requires the
Secretary of Homeland Security and the Secretary of State, to issue,
not later than October 26, 2004, only machine-readable, tamper-
resistant visas and other travel and entry documents that use
biometrics identifiers. The Form I-551 falls within the scope of the
BSA because, in addition to serving as evidence of registration, it
also serves as an entry document for LPRs returning to the United
States after a trip abroad. See 8 CFR 211.1(a)(2).
Prior to October 26, 2004, USCIS determined that the Form I-551 was
compliant with the requirements of section 302(b)(1) of the BSA, 8
U.S.C. 1732(b)(1). The Form I-551, including the version that does not
contain an expiration date, is machine-readable and contains tamper-
resistant features and biometrics identifiers. While compliant, older
versions of the Form I-551 without expiration dates do not contain the
same level of tamper-resistant features and biometric identifiers as
the current version. Forms I-551 with expiration dates must be renewed
periodically, at which point USCIS can issue new cards containing
updated technologies and biometrics information. This is not possible
for Forms I-551 without expiration dates. Consequently, in order to
ensure that the Forms I-551 in circulation contain the higher level of
tamper-resistant features and biometric identifiers that currently-
issued cards contain, USCIS intends to terminate the validity of Forms
I-551 without expiration dates. In addition, USCIS must ensure that it
maintains current biometrics to enable it to conduct background checks
on Form I-551 holders to confirm that they are compliant with the laws
of the United States and that they are not a threat to national
security. By periodically requiring all Form I-551 holders to apply for
replacement cards, USCIS will be able to confirm this information and
update background and biometric information.
For these reasons, USCIS proposes to set the form, manner and time
that alien registration receipt cards are issued as authorized under
section 264(d) of the INA, 8 U.S.C. 1304(d). The rule proposes to amend
the regulations to require bearers of Forms I-551 without expiration
dates to apply for a replacement card during a 120-day application
period. This proposed rule also amends the regulations governing the
application process for replacing Forms I-551 and makes technical
corrections to the title of the application used to replace Forms I-
551. Finally, this rule proposes a mechanism for terminating Forms I-
551 without an expiration date by notice in the Federal Register.
B. Changes Made by This Rule
1. Requirement To Replace Forms I-551 Without Expiration Dates
This rule proposes to amend 8 CFR 264.5(c)(1) to add Form I-551
without an expiration date to the current list of outdated permanent
resident cards that are required to be replaced by the filing of Form
I-90, ``Application to Replace Permanent Resident Card.'' The current
list consists of Forms AR-3, AR-103, and I-151. This proposed amendment
also would impose a 120-day application period for those LPRs holding
Forms I-551 without an expiration date to apply for a replacement card.
Through the Form I-90 application process, applicants would be required
to provide their current biographic and biometric information. Based on
this information, USCIS would conduct security checks to verify the
identity of card recipients and continued eligibility for LPR status.
USCIS would charge the standard, Form I-90 application fee and the
biometric information collection service fee to cover all associated
costs. The current fees are $290 for the Form I-90 and $80 for the
biometric information collection service.\3\ After completion of the
120-day application period, USCIS would set a termination date for the
validity of such Forms I-551.
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\3\ If an applicant is able to demonstrate that he or she is
unable to pay the standard Form I-90 fee and/or the biometric
service fee associated with the filing of a Form I-90, he or she may
request a fee waiver pursuant to 8 CFR 103.7(c). However, at
present, USCIS does not waive the biometric service fee associated
with the filing of a Form I-90. 69 FR 20528, 20529 (Apr. 15, 2004).
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USCIS believes that an application period of 120 days will be
sufficient for affected LPRs to learn of the new requirement and to
complete the required Form I-90. USCIS plans to conduct an extensive
outreach program to alert the affected group of LPRs of the need to
apply for new cards. This outreach program would include issuing press
releases, posting program announcements and question-and-answer (Q&A)
documents to the USCIS website, distributing fliers and pamphlets at
USCIS field offices, and conducting informational meetings with
community-based organizations (CBOs). USCIS also will encourage
applicants to file the Form I-90 electronically, rather than on paper.
In general, USCIS can process I-90 applications submitted
electronically faster than those applications filed on paper. The
application form itself is not complicated and takes an estimated
average time of 55 minutes to complete. USCIS seeks public comment on
the application period.
After the 120-day application period expires, LPRs who failed to
timely file Forms I-90 to replace their Forms I-551 would still be
required to apply for a replacement card. An alien who fails to file a
Form I-90 during this application period will still hold the status of
an alien who has been lawfully admitted for permanent residence, since
this status continues until it is terminated by entry of a removal
order against the alien. 8 CFR 1.1(p). The alien will not, however, be
in compliance with the requirement under section 264(e) of the Act, 8
U.S.C. 1304(e), that the alien must have in his or her possession at
all times the evidence of his or her having registered. To obtain new
evidence of registration, the alien will need to file a Form I-90. For
any alien who does not file before the application period expires,
however, USCIS would not be able to ensure that the alien will receive
a new Form I-551 before the old Form I-551 is deemed to have expired.
Strictly speaking, an alien who is at least 18 years old, who fails to
file a timely Form I-90, and whose current Form I-551, therefore,
expires, could be prosecuted for violating section 264(e).
[[Page 46925]]
If convicted, the person could be sentenced to pay a fine of up to
$100, to imprisonment for up to 30 days, or both. It is also a
misdemeanor under section 266(a) of the Act, 8 U.S.C. 1306(a), for an
alien to fail to register as required. The alien can be prosecuted for
failure to register, however, only if the failure to register is proven
to be willful. USCIS does not anticipate that either of these criminal
sanctions would be routinely used against aliens who fail to obtain new
Forms I-551. The far more common action, should USCIS discover that an
alien's Form I-551 has expired, will be to advise the alien to file a
Form I-551 to obtain a new Form I-551. If the alien still fails to
apply for a new Form I-551, it may become feasible to prove that the
failure to do so is willful. USCIS anticipates, however, that aliens
will, generally, comply with the requirement to obtain a new Form I-
551, once they become aware of the requirement.
Once implemented as a final rule, LPRs affected by the requirements
proposed under this rule may choose to apply for naturalization during
the 120-day application period instead of a new Form I-551. However,
USCIS would not be able to guarantee the completion of its adjudication
of such naturalization applications before it terminates the validity
of Forms I-551 without expiration dates. For those LPRs who have
applied for, but do not receive, a grant of naturalization by the time
USCIS sets the termination date, USCIS may issue interim evidence of
registration.
2. Termination of the Validity of Forms I-551 Without an Expiration
Date
Forms I-551 without an expiration date will remain valid throughout
the 120-day application period that will be set by the final rule for
replacing such Forms I-551. After the 120-day application period, USCIS
will assess the number of applications received and the timeframes for
application processing and card production. Once USCIS has processed
the applications and issued replacement Forms I-551, USCIS will be in a
position to set a date for terminating the validity of Forms I-551
without expiration dates. This rule proposes amendments to 8 CFR
264.5(c)(1) to provide that USCIS will announce the termination date
after the 120-day application period through a Notice published in the
Federal Register.
USCIS is proceeding in this way to minimize the possibility that
applicants will not have received a replacement Form I-551 in hand when
the validity of their previous Form I-551 is terminated. USCIS cannot
precisely estimate the number of applications it will receive to allow
USCIS to plan exact timelines for card production and, in turn, a
termination date. USCIS will only be able to set timelines based upon
the actual volume of applications received. Issuing a separate Notice
published in the Federal Register to advise the public of the
termination of the validity of Forms I-551 without expiration dates
would allow USCIS to implement a termination date that accommodates
USCIS's processing needs and applicants' need for valid documentation.
In addition to establishing the mechanism for terminating Forms I-
551 without expiration dates, this rule also clarifies that ``Form I-
551,'' when used elsewhere in the regulations, means a valid, unexpired
Form I-551. To do so, this proposed rule would amend the list of terms
defined in 8 CFR 1.1 by adding a limiting definition of Form I-551.
Current regulations do not define Form I-551; instead, the regulations
identify its uses. As stated earlier in this Supplementary Information,
the regulations identify Form I-551 as an entry document in 8 CFR
211.1(a)(2), evidence of registration in 8 CFR 264.1(b), an immigration
status document in 8 CFR 274a.12(a)(1), and a combination identity and
employment authorization document in 8 CFR 274a.2(b)(1)(v)(A)(2). These
references to Form I-551 apply to both the version of the card with an
expiration date and the version of the card without an expiration date.
This rule proposes introducing a limiting definition of Form I-551
rather than amend each reference so that it is clear to the public what
constitutes a valid Form I-551 with respect to any of its uses,
particularly following the termination date of the validity of Forms I-
551 without an expiration date. This rule proposes to limit the term,
``Form I-551'' to mean the version of the form with an expiration date.
See proposed 8 CFR 1.1(AA). A Form I-551 that does not bear an
expiration date would not be valid for any use under the regulations
unless otherwise specifically provided in the regulations. Id.
Until the validity of Forms I-551 without an expiration is
terminated via Notice published in the Federal Register, this rule, at
8 CFR 264.1(c)(1), proposes that such Forms I-551 would remain valid.
To do otherwise would have the effect of prematurely terminating the
validity of Forms I-551. The current regulations permit the use of
expired Forms I-551 in other circumstances as well. For example, an
expired Form I-551 may be used for entry to the United States and for
presenting evidence of identity to an employer. 8 CFR 211.3 (entry); 8
CFR 274a.2(b)(1)(v)(B)(1)(v) (identity). Under this proposed rule, such
Forms I-551 and those without expiration dates would remain valid in
these instances.
It is important to note that the planned termination of Forms I-551
without expiration dates as proposed under this rule would not affect
the immigration status and employment authorization of the holders of
such cards; they remain LPRs and their employment is authorized
incident to status. See INA 274A(h)(3)(A), 8 U.S.C. 1324a(h)(3)(A); 8
CFR 274a.12(a).
Under the requirements proposed in this rule, an LPR who fails to
obtain a new Form I-551 by the I-551 termination date would not be in
possession of a valid Form I-551. As a result, he or she may experience
difficulties in meeting other requirements where valid documentation is
necessary. For example, the LPR with an invalid Form I-551 may
experience difficulty returning to the United States after a trip
abroad or in obtaining new employment, and would not be in possession
of valid registration documentation. See 8 CFR 211.1(a) (entry to the
United States); 8 CFR 274a.2(b)(1)(v)(A) (employment ); 8 CFR 264.1(b)
(registration).
3. Changes to the Application Process for Replacing Forms I-551
This rule also proposes amending the regulations at 8 CFR 264.5(e)
to update the application procedures for replacing Forms I-551. Current
regulations at 8 CFR 264.5(e) cover the following application
requirements: The documentation that must accompany Form I-90 upon
filing, including the Permanent Resident Card being replaced,
photographs, evidence of name change, and signature on the Data
Collection Form (Form I-89); proper filing locations; fingerprint
submissions; interviews; and waiver of the photograph, in-person
filing, and signature requirements. Form I-90 processing procedures are
also provided in the instructions to the Form I-90. Because the form
instructions are more current, some of the information in the form
instructions reflect changes to procedures that are not also reflected
in 8 CFR 264.5(e). Whereas 8 CFR 264.5(e)(1) requires the submission of
photographs and supporting documentary evidence with the application
upon filing, current form instructions provide that this biometric
information and evidence will be accepted by USCIS when the applicant
[[Page 46926]]
appears at an Application Support Center (ASC) (a USCIS facility that
captures biometrics) following submission of the application. In
addition, 8 CFR 264.5(e)(2)(i) provides that applicants must file Forms
I-90 with the local office or Service Center having jurisdiction over
their place of residence; instructions to the Form I-90 provide that
the application must be submitted to the lockbox address specified in
the instructions or filed electronically. Finally, while 8 CFR
264.5(e)(3)(i) only requires applicants who are replacing their
Permanent Resident Cards because they have reached 14 years of age to
submit to fingerprinting, the instructions to the Form I-90 require all
applicants to appear at a USCIS ASC to submit to biometrics capture.
Biometrics capture is a broader term than fingerprinting and covers
fingerprints, photographs, and signatures. 69 FR 5088, 5090 (Feb. 3,
2004) (proposing a fee increase for biometric capture services, as well
as other immigration and naturalization benefits and services).
To ensure that applicants receive clear and consistent filing
information, this rule proposes to revise 8 CFR 264.5(e) in its
entirety to remove outdated filing instructions, refer applicants to
the instructions accompanying the form, and update biometrics capture
requirements. Proposed 8 CFR 264.5(e) includes a paragraph on filing
requirements, biometrics capture, and interviews. Rather than specify
the filing requirements, this proposed rule refers applicants to the
Form I-90 instructions. Proposed 8 CFR 264.5(e)(1). The Form I-90,
including the filing instructions, is available on the USCIS Web site
at https://www.uscis.gov. USCIS has determined that filing information
is better placed in form instructions alone, which are reviewed and
updated periodically and are more accessible to the public than
regulatory provisions. By providing one source for stating the filing
requirements, USCIS will avoid confusion and potential conflict between
the requirements stated in the regulations and those stated in the form
instructions.
This rule also proposes to amend USCIS regulations to reflect the
biometrics capture requirements in the current Form I-90 instructions.
Proposed 8 CFR 264.5(e)(2). Those instructions require all applicants
to appear at an ASC for biometrics capture and pay a separate
biometrics fee with the Form I-90 filing. By contrast, the current
regulations require all applicants to provide a photograph and
signature, but only require individuals replacing their Form I-551 on
the basis that they have turned 14 years of age to be subject to
fingerprinting. See 8 CFR 264.5(e)(3)(i). This rule proposes to amend
the regulations to require all applicants to submit to all of the types
of biometrics capture, including fingerprinting. USCIS is proposing to
expand the fingerprinting requirement to all Form I-90 applicants to
enable USCIS to obtain current biometrics information needed for Form
I-551 card production, conduct appropriate background checks before
cards are issued, and store this information for biometrics comparison
and authentication purposes required by section 302(b)(2)(A) of the
BSA, 8 U.S.C. 1732(b)(2)(A).
Note, in particular, that this proposed rule would change the
current provision in current 8 CFR 264.5(e)(3)(iii) concerning the
USCIS authority to waive the submission of biometric information. In
light of the security concerns arising from the September 11, 2001,
terrorist attack on the United States, it has been USCIS policy not to
exercise this authority by actually waiving the photograph or other
requirements. See Memorandum from William R. Yates for Regional
Directors and Center Directors, Alterations to the ADIT photograph
requirements (September 4, 2003) Memorandum from Johnny N. Williams for
Regional Directors, Waiver of Photograph for I-90 Applicants Seeking
Replacement or Renewal Form I-551 (February 14, 2003). The Memoranda
are included in the public docket for this rule at https://
www.regulations.gov, DHS Docket No. USCIS-2005-56. A Form I-551 without
a photograph of the person to whom it relates does not serve the
essential purpose of the Form I-551: To provide for a ready means of
identifying the actual person who has been lawfully admitted for
permanent residence. In the case of an alien who is physically unable
to come to a USCIS facility due to advanced age or physical infirmity,
the practice has not been actually to waive the photograph and other
biometrics requirements. Instead, the practice has been to provide an
alternative means for collecting this evidence. The most common
practice is to permit the applicant to provide passport-style
photographs, police clearance letters, and other appropriate evidence.
The rule, once final, would retain the provisions governing waivers
of the biometrics capture requirement in current 8 CFR 264.5(e)(3)(iii)
and interviews in current 8 CFR 264.5(e)(3)(ii), except that the
provisions are renumbered to new 8 CFR 264.5(e)(2) and (e)(3). In
addition, the rule simplifies the text of these provisions; no
substantive changes are proposed.
This rule also proposes technical corrections to 8 CFR 299.1 and
299.5 by adding the updated edition date (03/31/05) and title of the
Form I-90 to those sections. The Form I-90's proper title is
``Application to Replace Permanent Resident Card.'' The form was
revised to reflect this title; however, the regulations listing
immigration forms were never revised.
III. Regulatory Requirements
A. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 605(b)), as amended
by the Small Business Regulatory Enforcement and Fairness Act of 1996
(SBRFA), requires an agency to prepare and make available to the public
a regulatory flexibility analysis that describes the effect of the rule
on small entities (i.e., small businesses, small organizations, and
small governmental jurisdictions). DHS has considered the impact of
this rule on small entities and has determined that this rule will not
have a significant economic impact on a substantial number of small
entities. The individual lawful permanent residents to whom this rule
applies are not small entities as that term is defined in 5 U.S.C.
601(6). There is no change expected in any process as a result of this
rule that would have a direct effect, either positive or negative, on a
small entity. Accordingly, this rule, once final, will not have a
significant economic impact on a substantial number of small entities.
B. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments in the aggregate of $100 million or more in any one
year. However, as discussed below under Executive Order 12866, this
action will result in the expenditure by the private sector of more
than $100 million over the period of time that the program is in place.
Only holders of Forms I-551, ``Permanent Resident Cards,'' without
expiration dates will bear the costs of this rule.
C. 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 Fairness Act of 1996. This rule, once
final, will result in an effect on the economy of
[[Page 46927]]
approximately $290 million in the first year after this rule is
published, $24 million in the second year after this rule is published,
and $13 million in the third year after this rule is published. This
increase is directly associated with the expected increase in the
number of Forms I-90 and amount of accompanying filing and biometrics
fees that USCIS will receive to replace Forms I-551, `` Permanent
Resident Cards,'' without expiration dates prior to termination of such
cards.
D. Executive Order 12866
This rule has been identified as an economically significant rule
under Executive Order 12866, section 3(f)(1), Regulatory Planning and
Review. Accordingly, this rule has been submitted to the Office of
Management and Budget for review. USCIS has assessed both the costs and
benefits of this rule, as required by Executive Order 12866, and has
made a reasoned determination that the benefits justify the costs.
USCIS estimates that 750,000 persons will apply for a replacement
Form I-551, ``Permanent Resident Card,'' in accordance with this rule.
The most likely estimated cost of this rule for these persons is $327
million over a three-year period of analysis (2007-2009). Over the
three-year period of analysis, the present value cost of this proposed
rule is approximately $267 million at 7%. A three-year period of
analysis was chosen since those aliens who are required by this
rulemaking to obtain a new Form I-551 will do so only in 2007, 2008,
and 2009. The $327 million estimate consists of $278 million in fees
associated with the Form I-90, $42 million in opportunity cost for an
applicant's time, and $7 million in transportation costs for round trip
transit to the nearest USCIS Application Support Center (ASC). The
calendar year breakdown of these costs is $290 million for Calendar
Year (CY) 2007 ($278 million in fees plus $12 million in applicant time
and transportation costs), $24 million for CY 2008 (applicant time and
transportation costs), and $13 million for CY 2009 (applicant time and
transportation costs). The cost assessment, which includes a discussion
of both the maximum and most likely estimated costs of this rule,
follows.
In an effort to improve the security of the documents that USCIS
issues for use by the public, this rule calls for a 120-day period,
beginning 30 days from the date of publication of the final rule in the
Federal Register, within which time LPRs holding Forms I-551 without
expiration dates must apply to replace their card. To apply, they must
file Form I-90 with a fee of $290 and an additional biometrics capture
fee of $80. The total current cost is $370.
Those who apply for a replacement Form I-551 under this rule must
submit biometrics that will be used for background checks and stored
for future use. Based on technology and processes being developed by
DHS, stored biometrics will be available for access by DHS for other
immigration and law enforcement uses (a security benefit to the public
at large), and these applicants might not need to return to an ASC for
purposes of triggering certain background checks such as FBI
fingerprints, should they decide to naturalize or apply for a
replacement Form I-551 in the future.
The primary benefit to the government resulting from this rule is
enhanced national security. Once the program is complete, all LPRs will
have Forms I-551 with late-model technology. The biometrics of the
rightful holder will be electronically stored in a secure DHS database
that is easily retrievable and that can be used for data matching
purposes among the DHS components. The card itself will bear a current
photograph, facilitating its use by employers and the travel industry.
USCIS considered a number of alternatives to this proposed
rulemaking. One alternative was for USCIS to maintain the current
regulations. However, such an action would result in the agency's
failure to fully meet the goals of section 303(b) of the BSA, 8 U.S.C.
1732(b). Another alternative was to expire pre-1989 cards, but lower
the fees for replacing the cards. However, under this alternative, the
agency would fail to meet its general obligation to ensure that the
fees for such services are established at rates that allow the agency
to recoup its costs, and would unfairly transfer the costs of this
program to all other applicants for benefits and services from USCIS.
See OMB Circular A-25 (available at https://www.whitehouse.gov/omb/
circulars/a025/a025.html).
USCIS data indicates that the number of Forms I-551 without an
expiration date issued, minus the number of persons known to have held
these cards before naturalizing, is 1.9 million. Consequently, the
maximum number of aliens impacted by this rule is 1.9 million.\4\ The
direct cost to each applicant for replacement of a card under this
program is $370 in fees ($290 for the application plus $80 for the
biometrics capture fee). These costs fall exclusively upon individuals
who possess cards issued before August of 1989 and which do not have an
expiration date. Because these persons would not otherwise have to
acquire new cards, and would not otherwise have all their biometrics
captured, we believe these fees would be generated only by this new
rule. Based upon these figures, this rule will cost applicants a
maximum of $703 million in fees ($370 x 1.9 million).
---------------------------------------------------------------------------
\4\ As stated above, and as explained below, USCIS only
anticipates that 750,000 persons will apply for a replacement card.
This discussion uses the figure 1.9 million instead to reflect the
maximum number of persons that may be impacted by this rule.
---------------------------------------------------------------------------
Furthermore, each member of this group would be required to spend
two hours and 55 minutes complying with this rule. USCIS estimates that
each applicant will spend ten minutes reading the application Form I-90
instructions. Each applicant also will take ten minutes to complete the
form and thirty-five minutes to assemble and submit the form, for a
total of 55 minutes of each applicant's time.
Applicants will also be required to travel to the nearest USCIS
Application Support Center (ASC). While travel times and distances will
vary, USCIS estimates the average round-trip to an ASC will be 20
miles, and that the average time for that trip will be an hour. It will
take an average of one hour for an applicant to wait for service, and
to have his or her biometrics collected.
Total time for each applicant to comply with this requirement is
two hours and fifty-five minutes. The Bureau of Labor Statistics
reports in its 2006 national compensation survey that the average,
U.S.-employed person earned $19.29 an hour (BLS Web site). In addition,
the average wage of this large group should mimic the national average.
Consequently, USCIS believes that $19.29 an hour is a reasonable proxy
to use to value the opportunity cost of time for the applicants subject
to this rule. The total cost for applicant time spent is calculated as
$107 million (1.9 million persons x 2.916 hours x $19.29).
Additionally, there is the cost of travel. USCIS anticipates most
applicants will drive privately-owned vehicles to the ASCs. GSA's
published decision of February 1, 2007, on this subject calculates the
cost of operating a privately-owned vehicle as 48.5 cents a mile. (GSA
Web site, reporting on findings for February 1, 2007). Therefore, USCIS
calculates the transportation costs as $19 million (1.9 million persons
x 48.5 cents per mile x 20 miles).
Thus, if all holders of cards issued without expiration dates filed
a replacement application, the total
[[Page 469286 etc.)]]
maximum cost of the program would consist of $703 million in fees, $107
million in time, and $19 million in transportation costs. The total
maximum cost of compliance to this rule by 1.9 million persons is $829
million ($703 million + $107 million + $19 million).
Notwithstanding, experience from the replacement program for an
earlier, now-invalid version of the Permanent Resident Card (Form I-
151) has shown that a portion of these applicants will apply for
naturalization rather than replace their Permanent Resident Cards and
thus significantly reduce the overall cost of this rule. Other holders
of affected cards may be deceased, may have relinquished their United
States residence, or may have previously replaced their cards for other
reasons, such as the replacement of a lost or mutilated card. In
addition, some potential applicants may choose not to spend time and
money to replace their cards, because they do not habitually travel
outside the United States. Some potential applicants, in spite of
USCIS's public relations efforts, may not learn of the requirement that
such cards be changed. Also, some cards may be in possession of persons
who obtained them fraudulently or who have committed serious criminal
offenses since obtaining their cards. USCIS theorizes that these
persons may choose not to take the perceived risk of contacting DHS and
of calling into question their right to be in the United States.
USCIS accordingly estimates the most likely outcome of this program
is that 750,000 persons issued cards without expiration dates, but not
yet recorded as naturalized, will apply for replacement cards under
this rule. USCIS calculates the cost of the primary estimate as $327
million ($829 million x 0.395 or 750,000 of 1.9 million maximum
applicants). Based on the formulas provided above, USCIS's $327 million
estimate consists of $278 million in fees associated with the Form I-
90, $42 million in opportunity costs for an applicant's time, and $7
million in transportation costs for round trip transit to the nearest
USCIS Application Support Center.
Accounting Statement
As required by OMB Circular A-4 (available at https://
www.whitehouse.gov/omb/circulars/a004/a-4.html), in Table 1, USCIS has
prepared an accounting statement showing the classification of the
expenditures associated with this economically significant rule. The
table provides USCIS's primary or most likely estimate of the dollar
amount of these costs expressed on an annualized basis and also
includes USCIS's maximum annualized estimate at both the three percent
and seven percent discount rates. The period of analysis is three years
(2007, 2008, and 2009). Based on USCIS's primary or most likely
estimate, the undiscounted total cost of this rule will be
approximately $327 million. USCIS anticipates that the duration of the
I-551 replacement card program implemented by the final rule will be
three (3) years. Consequently, when the undiscounted total cost is
broken down into calendar years, this rulemaking is expected to cost
$290 million in 2007, $24 million in 2008, and $13 million in 2009.
Below is the expected annualized cost of this rulemaking, at both 3%
and 7%, over the three year period of analysis. Enhanced security and
the capabilities accompanying the storage of full fingerprint sets for
subsequent retrieval constitute non-quantified benefits.
OMB #: 1615-0082
Agency/Program Office: DHS/USCIS
Rule Title: Application Process for Replacing Forms I-551 without an
Expiration Date
RIN#: 1615-AB36
Classification of Expenditures, CY 2007 Through CY 2009
[2006 Dollars]
----------------------------------------------------------------------------------------------------------------
Source citation
Category Primary estimate Minimum estimate Maximum estimate (RIA, preamble,
etc.)
----------------------------------------------------------------------------------------------------------------
BENEFITS Enhanced Border Control, More secure alien registration Preamble
document
----------------------------------------------------------------------------------------------------------------
Monetized benefits
Annualized quantified, but NA................. NA................ NA................ NA
un-monetized, benefits.
(Unquantified) benefits.... Enhanced Security..
COSTS
Annualized monetized costs at 3 $89.07 million per
percent. year.
Annual monetized costs at 7 $99.85 million per
percent. year.
Annualized quantified, but un- NA................. NA................ NA................ NA
monetized, costs.
Qualitative (unquantified)
costs
TRANSFERS
Annualized monetized transfers: NA................. NA................ NA................ NA
``on budget''.
From whom to whom?
Annualized monetized transfers: NA................. NA................ NA................ NA
``off-budget''.
From whom to whom?
----------------------------------------------------------------------------------------------------------------
Category Effects Source citation
(RIA,
preamble, etc.)
----------------------------------------------------------------------------------------------------------------
Effects on State, local, and/or NA................. NA................ NA................ NA
Tribal governments.
Effects on small businesses.... NA................. NA................ NA................ NA
Effects on wages............... NA................. NA................ NA................ NA
Effects on growth.............. NA................. NA................ NA................ NA
----------------------------------------------------------------------------------------------------------------
[[Page 46929]]
E. Executive Order 13132
This proposed 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, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
F. Executive Order 12988 Civil Justice Reform
This proposed rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
G. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Public Law 104-13, all
departments are required to submit to the Office of Management and
Budget (OMB), for review and approval, any reporting requirements
inherent in a rule. This rule includes an approved information
collection. The OMB control number for this collection is 1615-0082 and
is contained in 8 CFR 299.5. However, this rule will increase the
number of respondents and the burden hours, and public costs.
Accordingly, when this rule is finalized, USCIS will submit to OMB for
approval an 83-C Change Worksheet that reflects any change in Form I-90
filings and any related changes to the public costs associated with
this collection.
List of Subjects
8 CFR Part 1
Administrative practice and procedure, Immigration.
8 CFR Part 264
Reporting and recordkeeping requirements.
8 CFR Part 299
Immigration, Reporting and recordkeeping requirements.
PART 1--DEFINITIONS
1. The authority citation for part 1 continues to read as follows:
Authority: 8 U.S.C. 1101; 8 U.S.C. 1103; 5 U.S.C. 301; Public
Law 107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.).
2. Section 1.1(aa) is added to read as follows:
Sec. 1.1 Definitions.
* * * * *
(aa) The term Form I-551 means a Permanent Resident Card, or an
Alien Registration Receipt Card, issued on a Form I-551 with an
expiration date. Unless otherwise specifically provided in this chapter
I, a Form I-551 is not valid for any use under this chapter I unless it
bears an expiration date and is unexpired.
PART 264--REGISTRATION AND FINGERPRINTING OF ALIENS IN THE UNITED
STATES
3. The authority citation for part 264 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1201, 1303-1305; 8 CFR part 2.
4. Section 264.5 is amended by:
a. Revising paragraph (c)(1); and by
b. Revising paragraph (e).
The revisions read as follows:
Sec. 264.5 Application for a replacement Permanent Resident Card.
* * * * *
(c) * * *
(1) A permanent resident must apply on Form I-90 to replace a prior
edition of the Alien Registration Receipt Card issued on Form AR-3, AR-
103, or I-151. A permanent resident must apply between October 22, 2007
and February 19, 2008 on Form I-90 to replace a prior edition of Form
I-551 without an expiration date. A permanent resident who fails to
apply during this 120-day application period still must apply to
replace a Form I-551 without an expiration date but might not be issued
a replacement Form I-551 before the termination of the validity of all
Forms I-551 without an expiration date. USCIS will announce the
termination date of the validity of Forms I-551 without an expiration
date in a Notice published in the Federal Register. Forms I-551 without
an expiration date will remain valid until such termination date.
* * * * *
(e) Application process--(1) Filing requirements. Form I-90 must be
filed in accordance with the instructions on the form.
(2) Biometrics capture. If the application is properly filed, the
applicant will receive a notice to appear in person at a USCIS facility
for biometrics capture. In the case of an applicant who is physically
incapable, because of the applicant's confinement due to advanced age
or physical infirmity, of appearing at a USCIS facility for biometrics
capture, USCIS may excuse the applicant's personal appearance at a
USCIS facility and provide an appropriate alternative means for
obtaining the applicant's photograph or other biometrics information.
(3) Interview. An applicant may be required to appear in person
before an immigration or consular officer and be interviewed under oath
in connection with this application.
* * * * *
PART 299--IMMIGRATION FORMS
5. The authority citation for part 299 continues to read as
follows:
Authority: 8 U.S.C. 1101 and note, 1103; 8 CFR part 2.
6. Section 299.1 is amended in the table by revising the entry for
Form ``I-90'', to read as follows:
Sec. 299.1 Prescribed forms.
* * * * *
------------------------------------------------------------------------
Form No. Edition date Title and description
------------------------------------------------------------------------
* * * * * * *
I-90........................... 03/31/05 Application to Replace
Permanent Resident
Card
* * * * * * *
------------------------------------------------------------------------
Sec. 299.5 Display of control numbers.
7. Section 299.5 is amended in the table by revising the entry for
Form ``I-90'', to read as follows:
* * * * *
[[Page 46930]]
------------------------------------------------------------------------
Currently
Form No. Form title assigned OMB
control No.
------------------------------------------------------------------------
* * * * * * *
I-90.......................... Application to 1615-0082
Replace Permanent
Resident Card.
* * * * * * *
------------------------------------------------------------------------
Michael Chertoff,
Secretary.
[FR Doc. E7-16311 Filed 8-21-07; 8:45 am]
BILLING CODE 4410-10-P
