U.S. Citizenship and Immigration Services Fee Schedule, 58962-58991 [2010-23725]

Agencies

• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 75, Number 185 (Friday, September 24, 2010)]
[Rules and Regulations]
[Pages 58962-58991]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-23725]



[[Page 58961]]

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Part IV





Department of Homeland Security





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8 CFR Parts 103, 204, 244 et al.



U.S. Citizenship and Immigration Services Fee Schedule; Final Rule

Federal Register / Vol. 75 , No. 185 / Friday, September 24, 2010 / 
Rules and Regulations

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 103, 204, 244, and 274A

[CIS No. 2490-09, DHS Docket No. USCIS-2009-0033]
RIN 1615-AB80


U.S. Citizenship and Immigration Services Fee Schedule

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Final rule.

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SUMMARY: The Department of Homeland Security (DHS) is adjusting the fee 
schedule for U.S. Citizenship and Immigration Services (USCIS). USCIS 
conducted a comprehensive fee study, refined its cost accounting 
process, and determined that current fees do not recover the full costs 
of services provided. DHS has found that adjustment to the fee schedule 
is necessary to fully recover costs and maintain adequate service. In 
response to comments, several adjustments were made to the proposed 
rule published on June 11, 2010.
    In this final rule, DHS: increases the fees by a weighted average 
of 10 percent; establishes three new fees covering USCIS costs related 
to processing the Regional Center Designation under the Immigrant 
Investor Pilot Program, Civil Surgeon Designation, and DHS Processing 
of Immigrant Visa requests; and adjusts the premium processing service 
fee by the percentage increase in inflation according to the Consumer 
Price Index--Urban Consumers (CPI-U) published as of July 2010. This 
rule also finalizes the interim rule that established the premium 
processing service and fees.

DATES: This rule is effective November 23, 2010. Applications or 
petitions mailed, postmarked, or otherwise filed on or after November 
23, 2010 must include the new fee.

FOR FURTHER INFORMATION CONTACT: Timothy Rosado, Acting Chief Financial 
Officer, U.S. Citizenship and Immigration Services, Department of 
Homeland Security, 20 Massachusetts Avenue, NW., Washington, DC 20529-
2130, telephone (202) 272-1930.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background.
II. Final Rule.
    A. Changes in the Final Rule.
    B. Corrections.
    C. Summary of Final Fees.
III. Public Comments on the Proposed Rule.
    A. Authority to Promulgate Fees.
    1. Immigration and Nationality Act Section 286(m).
    2. Biometrics for Temporary Protected Status.
    3. Bundling.
    4. Fraud Detection and National Security and other Program 
Costs.
    5. Guidance under Office of Management and Budget Circulars.
    6. Accounting Standards.
    B. Relative Amount of Fees.
    1. Recovery of Additional Costs.
    2. Proposed Fees are Unreasonably High.
    a. Barrier to Family Reunification.
    b. Fee Increases Reduce the Number of Filers.
    c. Income-Based Fee Structure.
    d. Supplementary Costs to Applicants and Petitioners.
    3. Comments on Specific Fees and Adjustments.
    a. Student Employment Authorization.
    b. Entertainers, Athletes, and other Individuals with 
Extraordinary Talent.
    c. Adoption.
    d. Entrepreneurs.
    e. Refugee Travel Documents.
    4. Fee Decreases.
    C. Fee Waivers and Exemptions.
    1. Asylee Benefits and Status Adjustment.
    2. Expansion of Fee Waivers and Exemptions.
    a. Travel and Employment Authorization Documents and Immigrant 
Visas.
    b. Waiver Eligibility for Notices of Appeal or Motions.
    c. Military Naturalizations.
    d. Arrival-Departure Records.
    3. Standardization of the Fee Waiver Process.
    4. Commonwealth of the Northern Mariana Islands Transitional 
Worker.
    D. Naturalization.
    E. Improve Service and Reduce Inefficiencies.
    1. Service Improvement and Fees.
    2. Multiple Biometric Data Requests.
    3. Transformation.
    4. Increases Relative to Time.
    5. Fee Refunds.
    6. Customer Service and the Office of Public Engagement.
    F. Premium Processing.
    1. Expansion of Premium Processing Service.
    2. Adjustment to the Premium Processing Fee.
    G. New Fees and Forms.
    1. Immigrant Visa DHS Domestic Processing Fee.
    2. Civil Surgeon Designation Fee and Form.
    3. EB-5 Regional Center Designation Fee and Form.
    H. Methods Used To Determine Fee Amounts.
    1. Reductions to USCIS Costs.
    2. Appropriations.
    I. Other Comments.
    1. Visa Allocation and Unused Visa Numbers.
    2. Increased Periods of Validity for Travel and Employment 
Documents.
    3. Suggested I-94 Fee.
    J. Discussion of Comments Received in Response to the June 1, 
2001, Interim
     Final Rule.
IV. Statutory and Regulatory Reviews.
    A. Regulatory Flexibility Act- Final Regulatory Flexibility 
Analysis.
    1. Objectives of, and Legal Basis for, the Final Rule.
    2. Significant Issues Raised by Public Comments in Response to 
the Initial Regulatory Flexibility Analysis.
    3. Description and Estimate of the Number of Small Entities to 
which the Rule will Apply.
    4. Reporting, Recordkeeping, and Other Compliance Requirements.
    5. Steps Taken to Minimize Significant Adverse Economic Impacts 
on Small Entities.
    B. Unfunded Mandates Reform Act.
    C. Small Business Regulatory Enforcement Fairness Act.
    D. Executive Order 12866.
    E. Executive Order 13132.
    F. Executive Order 12988.
    G. Paperwork Reduction Act.

List of Acronyms and Abbreviations

ABC--Activity-Based Costing.
CBP--U.S. Customs and Border Protection.
CFO--Chief Financial Officer.
CNMI--Commonwealth of the Northern Mariana Islands.
CNRA--Consolidated Natural Resources Act.
CPI-U--Consumer Price Index--Urban Consumers.
DHS--Department of Homeland Security.
DOS--Department of State.
EAD--Employment Authorization Document.
FASAB--Federal Accounting Standards Advisory Board.
FBI--Federal Bureau of Investigation.
FDNS--Fraud Detection and National Security.
FRFA--Final Regulatory Flexibility Analysis.
FY--Fiscal Year.
HSA--Homeland Security Act.
IEFA--Immigration Examinations Fee Account.
INA--Immigration and Nationality Act.
IOAA--Independent Offices Appropriation Act.
IRFA--Initial Regulatory Flexibility Analysis.
NNCP--National Name Check Program.
OMB--Office of Management and Budget.
OPE--Office of Public Engagement.
OPT--Optional Practical Training.
PRA--Paperwork Reduction Act.
POE--Port of Entry.
RFA--Regulatory Flexibility Act.
RFE--Request for Evidence.
SAVE--Systematic Alien Verification for Entitlements.
SMI--Secure Mail Initiative.
SQA--System Qualified Adjudication.
TPS--Temporary Protected Status.
UMRA--Unfunded Mandates Reform Act.
USCIS--U.S. Citizenship and Immigration Services.
USPS--United States Postal Service.
VAWA--Violence Against Women Act.

I. Background

    DHS proposed to adjust the USCIS benefits fee schedule on June 11, 
2010. See 75 FR 33445. The current USCIS fee schedule does not recoup 
the full cost of processing immigration benefits. This

[[Page 58963]]

final rule builds on the 2008/2009 USCIS fee rule that sought to align 
fees with the costs of specific application types and make adjustments 
to some fees based on policy considerations.
    This final rule also reflects FY 2010 appropriations to remove 
asylum, refugee, and military naturalization costs from the fee 
structure. See 75 FR 33445, 33447. Previously, surcharges were added to 
immigration fees to recover the cost of adjudicating asylum, refugee, 
and military naturalization requests. Costs for the Systematic Alien 
Verification for Entitlements (SAVE) program and the Office of 
Citizenship were also supported by fee revenue. The Administration's 
fee reform policy, as reflected in the Administration's budget request, 
moves all of these costs out of the USCIS fee structure to appropriated 
funds and improves the transparency of USCIS fees.
    USCIS entered supporting documentation for this rulemaking and its 
methodology, including budget methodology and regulatory flexibility 
analyses, into the public docket. See https://www.regulations.gov, 
docket number USCIS-2009-0033.

II. Final Rule

A. Changes in the Final Rule

    DHS is adopting the proposed rule with changes, both in response to 
comments and as a result of new information. The explanations of the 
changes are discussed in the sections dealing with comments and the 
subject matter of the change. No modification to the final fees is made 
as a result of these changes. The changes that DHS is making to the 
final rule are summarized as follows:
    Clarify fee exemptions for requests for Civil Surgeon Designation. 
DHS will charge no fee for an application from a medical officer in the 
U.S. Armed Forces or civilian physician employed by the U.S. government 
who examines members of the U.S. Armed Forces, veterans of the Armed 
Forces, and their dependents at a U.S. military, Department of Veterans 
Affairs, or U.S. government facility in the United States. New 8 CFR 
103.7(b)(1)(i)(SS).
    Reduce the fee for an Application for Travel Document, Form I-131, 
when it is filed to request a Refugee Travel Document. DHS has reduced 
the fee for an Application for Travel Document in the final rule to 
$135 for a Refugee Travel Document for an adult age 16 or older, and 
$105 for a child under the age of 16. DHS has decided also to permit 
the fee for an Application for Travel Document to be waived based on 
inability to pay when it is based on a request for Humanitarian Parole. 
New 8 CFR 103.7(b)(1)(i)(M).
    Provide that the fee for the Notice of Appeal or Motion, Form I-
290B, may be waived in certain cases. DHS will allow the fee for the 
Notice of Appeal or Motion to be waived upon a showing of inability to 
pay in those cases when the appeal or motion is from the denial of an 
immigration benefit request where the applicant or petitioner was not 
required to pay a fee or that fee was waived. New 8 CFR 
103.7(c)(3)(vi).
    Provide for no fee for a Notice of Appeal or Motion for an appeal 
of a denial of a petition for a special immigrant visa from an Iraqi or 
Afghan national who worked for or on behalf of the U.S. Government in 
Iraq or Afghanistan. DHS believes it is keeping with the policy to 
assist this group of petitioners by allowing them to file a Notice of 
Appeal or Motion without a fee. New 8 CFR 103.7(b)(1)(i)(W).
    Provide for a free Request for Hearing on a Decision in 
Naturalization Proceedings, Form N-336, and an Application for 
Certification of Citizenship, Form N-600, to exempt from fees requests 
from a member or veteran of the U.S. Armed Forces. New 8 CFR 
103.7(b)(1)(i)(W), (AAA). USCIS is precluded by law from collecting a 
fee from members of the military for an Application for Naturalization 
under sections 328 and 329 of the Immigration and Nationality Act 
(INA). INA sections 328(b) & 329(b), 8 U.S.C. 1439(b) & 1440(b). DHS 
has decided to provide that military members are also exempt from the 
fee for these requests.

B. Corrections

    DHS makes a number of technical corrections in this final rule. DHS 
does not make any changes to the final fees as a result of these 
corrections. In the preamble of the proposed rule, DHS included a table 
of those benefits requests that also required submission of biometrics 
and the related biometrics services fee. 75 FR 33445, 33461. USCIS 
failed to include the Application to Extend/Change Nonimmigrant Status, 
Form I-539, in the table of fees for immigration benefits that require 
biometric services in the proposed rule. Id. Applicants filing an 
Application to Extend/Change Nonimmigrant Status to request ``V'' 
nonimmigrant status are required to submit biometric information and 
pay the biometric fee. 8 CFR 214.15(f)(1)((ii). A ``V'' visa is 
available for certain spouses and children of lawful permanent 
residents who have had a petition for an immigrant visa or application 
for naturalization pending for 3 years or more. INA section 
101(a)(15(V), 8 U.S.C. 1101(a)(15)(V). This is the only class of 
Application to Extend/Change Nonimmigrant Status (Form I-539) 
applicants that currently require biometric services. The fee for this 
application in this final rule is $290. New 8 CFR 103.7(b)(1(i)(X). The 
biometric fee is $85. New 8 CFR 103.7(b)(1)(i)(C). As a result, the 
inclusive fee for filing an Application to Extend/Change Nonimmigrant 
Status (Form I-539) for V nonimmigrants is $375. USCIS also 
inadvertently did not include the Application for Suspension of 
Deportation or Special Rule Cancellation of Removal (Pursuant to 
Section 203 of Public Law 105-110), Form I-881, in the table of fees in 
the preamble to the proposed rule. This benefit request and its $285 
fee are included in the table in this preamble for illustrative 
purposes. Finally, USCIS is removing the separate fee for filing an 
application for issuance or extension of a refugee travel document 
(Form I-570) because the refugee document process was consolidated into 
the application for travel documents (Form I-131), and the reference is 
obsolete.
    The William Wilberforce Trafficking Victims Protection 
Reauthorization Act of 2008 requires DHS to permit aliens to apply for 
a waiver of any fees associated with filing an application for relief 
through final adjudication of the adjustment of status for relief by a 
Violence Against Women Act (VAWA) self-petitioner or under INA sections 
101(a)(15)(T) (T visas), 101(a)(15)(U) (U visas), 106 (battered spouses 
of A, G, E-3, or H nonimmigrants), 240A(b)(2) (battered spouse or child 
of a lawful permanent resident or U.S. citizen), and 244(a)(3) 
(Temporary Protected Status) (as in effect on March 31, 1997). INA 
section 245(l)(7), 8 U.S.C. 1255(l)(7). Public Law 110-457, section 122 
Stat. 5044 (Dec. 23, 2008); 22 U.S.C. 7101 et seq. This rule corrects 
the oversight from the proposed rule and provides that these groups or 
individuals may request a waiver of any USCIS fee to which they may be 
otherwise subjected. New 8 CFR 103.7(c)(3)(xvii).
    USCIS inadvertently did not include the Petition to Remove the 
Conditions of Residence, Form I-751, and the Application for Suspension 
of Deportation or Special Rule Cancellation of Removal (Pursuant to 
Section 203 of Pub. L. 105-110), Form I-881, in the list of forms 
currently eligible for fee waivers. Proposed 8 CFR 103.7(c)(3); 75 FR 
33445, 33487. These exclusions are corrected in this final rule. USCIS 
has determined that it will continue its policy of accepting fee waiver 
requests for Forms I-751 and I-

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881. New 8 CFR 103.7(c)(3)(vii) and (xi); 8 CFR 240.63(a).
    In the proposed rule, USCIS unintentionally replaced the word 
``or'' in the fee for an Application to Register Permanent Residence or 
Adjust Status, Form I-485, with ``and'' in an attempt to simplify the 
language in current 8 CFR 103.7(b)(1). Proposed 8 CFR 
103.7(b)(1)(U)(2). A discounted fee has previously been provided for 
``an applicant under the age of fourteen years when submitted 
concurrently for adjudication with the Form I-485 of a parent and the 
applicant is seeking to adjust status as a derivative of the parent, 
based on a relationship to the same individual who provides the basis 
for the parent's adjustment of status, or under the same legal 
authority as the parent.'' 8 CFR 103.7(b)(1). This proposed change 
would have eliminated the discount made available to certain children 
in the 2008/2009 fee rule. USCIS will continue to allow a child filing 
concurrently with a parent to pay the reduced fee when the child ``is 
seeking to adjust status as a derivative of the parent, based on a 
relationship to the same individual who provides the basis for the 
parent's adjustment of status, or under the same legal authority as the 
parent'' and has restored that language to the regulatory text in this 
final rule. New 8 CFR 103.7(b)(1)(U)(2)

C. Summary of Final Fees

    The current USCIS Immigration Benefit Request Fee Schedule and the 
fees adopted in this final rule are summarized in Table 1. DHS bases 
its final fees on the FY 2011 President's Budget Request as outlined in 
the proposed rule, incorporating appropriated funding for refugee, 
asylum, and military naturalization processing, as well as the Office 
of Citizenship and the SAVE program. 75 FR 33456.

                Table 1--Immigration Benefit Request Fees
------------------------------------------------------------------------
                                                  Current
       Form No.                  Title              fees      Final fees
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I-90..................  Application to Replace         $290         $365
                         Permanent Resident
                         Card.
I-102.................  Application for                 320          330
                         Replacement/Initial
                         Nonimmigrant Arrival-
                         Departure Document.
I-129/129CW...........  Petition for a                  320          325
                         Nonimmigrant Worker.
I-129F................  Petition for Alien              455          340
                         fiancé(e).
I-130.................  Petition for Alien              355          420
                         Relative.
I-131.................  Application for Travel          305          360
                         Document.
I-140.................  Immigrant Petition for          475          580
                         Alien Worker.
I-191.................  Application for                 545          585
                         Advance Permission to
                         Return to
                         Unrelinquished
                         Domicile.
I-192.................  Application for                 545          585
                         Advance Permission to
                         Enter as Nonimmigrant.
I-193.................  Application for Waiver          545          585
                         of Passport and/or
                         Visa.
I-212.................  Application for                 545          585
                         Permission to Reapply
                         for Admission into
                         the U.S. after
                         Deportation or
                         Removal.
I-290B................  Notice of Appeal or             585          630
                         Motion.
I-360.................  Petition for                    375          405
                         Amerasian, Widow(er),
                         or Special Immigrant.
I-485.................  Application to                  930          985
                         Register Permanent
                         Residence or Adjust
                         Status.
I-526.................  Immigrant Petition by         1,435        1,500
                         Alien Entrepreneur.
I-539.................  Application to Extend/          300          290
                         Change Nonimmigrant
                         Status.
I-600/600A............  Petition to Classify            670          720
I-800/800A............   Orphan as an
                         Immediate Relative/
                         Application for
                         Advance Processing of
                         Orphan Petition.
I-601.................  Application for Waiver          545          585
                         of Ground of
                         Excludability.
I-612.................  Application for Waiver          545          585
                         of the Foreign
                         Residence Requirement.
I-687.................  Application for Status          710        1,130
                         as a Temporary
                         Resident under
                         Sections 245A or 210
                         of the Immigration
                         and Nationality Act.
I-690.................  Application for Waiver          185          200
                         of Grounds of
                         Inadmissibility.
I-694.................  Notice of Appeal of             545          755
                         Decision under
                         Sections 245A or 210
                         of the Immigration
                         and Nationality Act.
I-698.................  Application to Adjust         1,370        1,020
                         Status from Temporary
                         to Permanent Resident
                         (Under Section 245A
                         of Pub. L. 99-603).
I-751.................  Petition to Remove the          465          505
                         Conditions of
                         Residence.
I-765.................  Application for                 340          380
                         Employment
                         Authorization.
I-817.................  Application for Family          440          435
                         Unity Benefits.
I-824.................  Application for Action          340          405
                         on an Approved
                         Application or
                         Petition.
I-829.................  Petition by                   2,850        3,750
                         Entrepreneur to
                         Remove Conditions.
I-881.................  Application for                 285          285
                         Suspension of
                         Deportation or
                         Special Rule
                         Cancellation of
                         Removal (Pursuant to
                         Section 203 of Pub.
                         L. 105-110).
I-907.................  Request for Premium           1,000        1,225
                         Processing Service.
                        Civil Surgeon                     0          615
                         Designation.
I-924.................  Application for                   0        6,230
                         Regional Center under
                         the Immigrant
                         Investor Pilot
                         Program.
N-300.................  Application to File             235          250
                         Declaration of
                         Intention.
N-336.................  Request for Hearing on          605          650
                         a Decision in
                         Naturalization
                         Proceedings.
N-400.................  Application for                 595          595
                         Naturalization.
N-470.................  Application to                  305          330
                         Preserve Residence
                         for Naturalization
                         Purposes.
N-565.................  Application for                 380          345
                         Replacement
                         Naturalization/
                         Citizenship Document.
N-600/................  Application for                 460          600
600K..................   Certification of
                         Citizenship/
                         Application for
                         Citizenship and
                         Issuance of
                         Certificate under
                         Section 322.
                        Immigrant Visa DHS                0          165
                         Domestic Processing.
Biometrics............  Capturing, Processing,           80           85
                         and Storing Biometric
                         Information.
------------------------------------------------------------------------


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III. Public Comments on the Proposed Rule

    DHS provided a 45-day comment period following the publication of 
the proposed rule and received 225 comments. DHS also invited the 
public to access the commercial software utilized in executing the 
budget methodology and developing the cost model underlying the 
proposed rule to facilitate public understanding of the fee modeling 
process explained in the supporting documentation. See 75 FR 33445, 
33447. USCIS received no requests for access to the modeling program.
    On June 9, 2010, USCIS Director Alejandro Mayorkas hosted a 
stakeholder engagement that focused exclusively on the proposed rule. 
During this engagement, Director Mayorkas provided information about 
the rule and directed the public to the Federal Register and https://www.regulations.gov to submit comments on the proposed rule. Throughout 
the public comment period, USCIS Senior Leadership met with 
stakeholders during regularly-scheduled engagements and used these 
opportunities to provide information and encourage individuals and 
groups to submit written comments.
    DHS received comments from a broad spectrum of individuals and 
organizations, including refugee and immigrant service and advocacy 
organizations, public policy and advocacy groups, members of Congress, 
and private citizens. Many comments addressed multiple issues or 
provided variations of opinion on the same substantive issues. Comments 
ranged from strongly supportive of the fee changes to strongly 
critical. Some comments provided critiques of the methodology and the 
proposed fee schedule, while others suggested alternative methods and 
funding sources to finance USCIS operations.
    DHS has considered the comments received and all other materials 
contained in the docket in preparing this final rule. The final rule 
does not address comments seeking changes in United States statutes; 
changes in regulations or applications and petitions unrelated to, or 
not addressed by, the proposed rule; changes in procedures of other 
components within DHS or other agencies; or the resolution of any other 
issues not within the scope of the rulemaking or the authority of DHS. 
All comments may be reviewed at the Federal Docket Management System 
(FDMS) at www.regulations.gov, docket number USCIS-2009-0033. The 
public may also review the docket upon request by contacting USCIS 
through the contact information listed in this rule.

A. Authority to Promulgate Fees

    Several commenters questioned DHS's authority to promulgate the 
rule. Specific comments challenged DHS's authority to charge specific 
amounts for specific fees, to cross-subsidize fees, and to make policy 
decisions that affect the amount of specific fees. These comments 
asserted both generally, and in regard to specific fees, that DHS's 
proposed fee schedule was not in conformity with different provisions 
of law, policy, and guidance. Some commenters suggested that 
administrative and overhead costs were not related to the provision of 
services and should be excluded. Other commenters suggested that 
enforcement costs should be excluded from the fees, while others 
recommended that all of the enforcement costs of immigration and law 
enforcement agencies should be recovered by fees. Several commenters 
asserted that expenses not related to the provision of ``adjudication 
and naturalization services'' are matters of public benefit and should 
instead be funded by appropriation. Commenters also suggested that DHS 
was not authorized to ``bundle'' fees or to cross-subsidize costs of 
one service with funding from another fee.
    Underlying these comments is the issue of compliance with the 
authorizing statute and conformance with internal Executive Branch 
guidance. Although some commenters recognized that DHS is permitted to 
fund all USCIS operations from fees, they asserted there is no 
statutory mandate requiring it to do so. These comments raise the issue 
of the general structure of the Immigration Examinations Fee Account 
(IEFA), and whether fees can legally recover certain costs.
    DHS disagrees. DHS outlined its authority to promulgate the USCIS 
fee schedule in the proposed rule. 75 FR 33445, 33447-8. DHS carefully 
reviews its authority to act and provides a more detailed explanation 
of its legislative authority and management guidance in response to 
these comments.
1. Immigration and Nationality Act Section 286(m)
    The Immigration and Nationality Act, as amended, provides for the 
collection of fees at a level that will ensure recovery of the full 
costs of providing adjudication and naturalization services, including 
services provided without charge to asylum applicants and certain other 
immigrant applicants. INA section 286(m), 8 U.S.C. 1356(m).\1\ The INA 
provides that the fees may recover administrative costs as well. The 
fee revenue collected under section 286(m) of the INA remains available 
to DHS to provide immigration and naturalization benefits and ensures 
the collection, safeguarding, and accounting of fees by USCIS. INA 
section 286(n), 8 U.S.C. 1356(n).
---------------------------------------------------------------------------

    \1\ INA section 286(m), 8 U.S.C. 1356(m), provides, in pertinent 
part that notwithstanding any other provisions of law, all 
adjudication fees as are designated by the [Secretary of Homeland 
Security] in regulations shall be deposited as offsetting receipts 
into a separate account entitled ``Immigration Examinations Fee 
Account'' in the Treasury of the United States, whether collected 
directly by the [Secretary] or through clerks of courts: Provided, 
however, * * *: Provided further, That fees for providing 
adjudication and naturalization services may be set at a level that 
will ensure recovery of the full costs of providing all such 
services, including the costs of similar services provided without 
charge to asylum applicants or other immigrants. Such fees may also 
be set at a level that will recover any additional costs associated 
with the administration of the fees collected.
    Paragraph (n) provides that deposited funds remain available 
until expended ``for expenses in providing immigration adjudication 
and naturalization services and the collection, safeguarding and 
accounting for fees deposited in and funds reimbursed from the 
`Immigration Examinations Fee Account'.''
---------------------------------------------------------------------------

    Congress also has imposed specific fixed fees, such as the $7 
individual immigration inspection fee at ports of entry. INA section 
286(d), 8 U.S.C. 1356(d). Additionally, Congress has established 
certain fixed fees and provided a specific method for adjustment of 
those fees, such as the premium processing fee. INA section 286(u), 8 
U.S.C. 1356(u). DHS considers the structure of all of these provisions 
and the relationship between fee requirements and appropriated funds in 
reaching decisions about the USCIS fee schedule.
    INA section 286(m), 8 U.S.C. 1356(m), contains both silence and 
ambiguity under Chevron USA, Inc. v. Natural Resources Defense Council, 
467 U.S. 837 (1984). Congress has not spoken directly, for example, to 
a number of issues present in this section, including the scope of 
application of the section or subsidizing operations from other 
fees.\2\ Congress has provided that USCIS recover costs ``including the 
costs of similar services'' provided to ``asylum applicants and other 
immigrants.'' Congress has not detailed the determination of what costs 
are to be included. Moreover, ``other immigrants'' has a broad meaning 
under the INA because the term ``immigrant'' is defined by exclusion to 
mean ``every alien

[[Page 58966]]

except an alien who is within one of the following classes of 
nonimmigrant aliens.'' INA section 101(a)(15), 8 U.S.C. 1101(a)(15). 
The extensive listing of exclusions from ``immigrant'' by the non-
immigrant visa classes is replete with ambiguity evidenced by the 
detailed and complex regulations and judicial interpretations of those 
provisions.
---------------------------------------------------------------------------

    \2\ Congress's intent in using individual terms, such as ``full 
cost,'' is clear, although the totality of the section is ambiguous.
---------------------------------------------------------------------------

    Congress additionally provides annual appropriations for specific 
USCIS programs. Appropriated funding for FY 2010 included asylum and 
refugee operations (4th Quarter contingency funding), and military 
naturalization surcharge costs ($55 million); E-Verify ($137 million); 
immigrant integration ($11 million); REAL ID Act implementation ($10 
million); and data center consolidation ($11 million). Department of 
Homeland Security Appropriations Act, 2010, Public Law 111-83, title 
IV, 123 Stat. 2142, 2164-5 (Oct. 28, 2009) (DHS Appropriation Act 
2010). Providing these limited funds against the backdrop of the broad 
immigration examinations fee statute--together forming the totality of 
funding available for USCIS operations--requires that all other costs 
relating to USCIS and adjudication operations are funded from fees. In 
appropriating specific funds, Congress approves of the fee amounts 
promulgated by DHS for the operation of USCIS by approving the total 
expenditure level. When no appropriations are received, or fees are 
statutorily set at a level that does not recover costs, or DHS 
determines that a type of application should be exempt from payment of 
fees, USCIS must use funds derived from other fee applications to fund 
overall requirements and general operations.
    Before the IEFA was created in 1988, all activities related to case 
processing were funded by appropriations. See Public Law 100-459, 
section 209, 102 Stat. 2186 (Oct. 1, 1988). While fees were charged 
prior to 1988, those fees were treated as miscellaneous receipts of the 
United States Treasury and deposited in the General Fund. Those fees 
were not available to the Immigration and Naturalization Service for 
expenditure. The IEFA was created to provide an alternative to 
appropriations. As many of the commenters stated, the law does not 
preclude the use of appropriations to subsidize fee receipts to fund 
operations. In the absence of appropriations, however, USCIS's only 
funding source is fee revenue. Of the $386,000,000 requested in the FY 
2011 Budget, $259,000,000 will cover the estimated cost of asylum and 
refugee surcharges ($207 million), the SAVE program ($34 million), and 
the Office of Citizenship ($18 million) for FY 2011. The fees in this 
rule assume that the costs of these activities will not be financed by 
fee revenue and, instead, paid with appropriated funds.
    Commenters suggested that only the activities directly relating to 
specific adjudications should be charged to those who apply for the 
benefits. These comments rely on statutory authority separate from the 
authority for these fees. The general authority for the United States 
to impose and collect ``user'' fees stems from the Independent Offices 
Appropriation Act, 1952 (IOAA), 31 U.S.C. 9701(b). Under the IOAA, a 
``value'' to the recipient is a key threshold factor and the costs of 
``public interest'' have been effectively included within the fees. 
National Cable Television Ass'n v. United States, 415 U.S. 336 (1974); 
FPC v. New England Power Co., 415 U.S. 345 (1974); Seafarers Internat'l 
Union v. Coast Guard, 81 F.3d 179, 183 (DC Cir. 1996). In New England 
Power Co., the Supreme Court held that the IOAA authorizes ``a 
reasonable charge'' to be made to ``each identifiable recipient for a 
measurable unit or amount of Government service or property from which 
[the recipient] derives a special benefit.'' See 415 U.S. at 349 
(quoting Bureau of the Budget Circular No. A-25 (Sept. 23, 1959)). The 
Court held that such fees may be assessed to an individual even when 
the benefits from the service provided are not only special to the 
recipient but widespread to the general public as a whole. Id. See also 
National Cable Television Ass'n, 415 U.S. at 343-44. So long as the 
service provides a special benefit above and beyond that which accrues 
to the public at large to a readily-identifiable individual, the fee is 
permissible. New England Power, 415 U.S. at 349-51 & n. 3.
    Prior to the enactment of INA section 286(m) 8 U.S.C. 1356(m), fees 
charged for immigration services were governed by the IOAA and were 
judicially reviewed under the IOAA. A more elementary cost analysis 
than that currently used was upheld by the courts. Ayuda, Inc. v. 
Attorney General, 661 F. Supp. 33 (D.D.C. 1987), aff'd, 848 F.2d 1297 
(DC Cir. 1988). As the Court of Appeals in Ayuda stressed, the 
procedures were ``triggered only at the instance of the individual who 
seeks, obviously, to benefit from them.'' 848 F.2d at 1301.
    Congress changed this formulation for immigration fees in the 
enactment of INA section 286(m) and the creation of the IEFA. DHS's 
authority under INA section 286(m) is an exception to the limitations 
of the IOAA. 31 U.S.C. 9701(c). The relevant, second proviso was added 
to the INA after the Court of Appeals decided Ayuda under the IOAA. See 
Public Law 101-515, section 210(d)(1), (2), 104 Stat. 2120, 2121 (Nov. 
5, 1990). The statutory provisions in section 286(m) are broader than 
the IOAA, authorizing DHS to recover the full cost of providing 
benefits and ensuring sufficient revenues to invest in improved service 
and technology. Even though the requirements of the IOAA do not apply 
in developing these fees, DHS and USCIS are mindful of the need to 
explain the process to the general public and have done so. Cf. Engine 
Manufacturers Assoc. v. EPA, 20 F.3d 1177 (DC Cir. 1994).
    Accordingly, DHS disagrees with the commenters' suggestions that it 
has exceeded its authority to promulgate fees to recover the full cost 
of operating USCIS. Congress and the Executive Branch have been in 
agreement that the full cost of operating USCIS should come from the 
sum of the general IEFA fee account, several other specific fee-driven 
provisions of statute, and annual appropriated funds. The balance of 
the funding between these accounts is struck by Congress in determining 
the annual appropriation, and DHS and USCIS negotiate that result with 
Congress and adjust as practical the total amount charged as fees, 
which is ultimately approved by Congress as the amount that may be 
expended.
2. Biometrics for Temporary Protected Status
    A commenter expressed specific concern that the proposed charges to 
the biometric services fee in the proposed fee rule are unlawful in 
their application to the temporary protected status (TPS) program. TPS 
is a temporary benefit that eligible aliens in the United States may 
request if their home countries have been designated for TPS by the 
Secretary based on temporary and extraordinary conditions that prevent 
such aliens from being able to return to their countries safely, or in 
certain circumstances, where their countries are unable to handle their 
return adequately. See generally INA section 244, 8 U.S.C. 1254a.
    The commenter suggested that if at least certain TPS re-registrants 
are not exempt from the biometric services fees, then the proposed 
changes may run afoul of the statutory constraints on fees charged to 
TPS registrants because the biometric services fee would: (1) Charge 
for services that are not provided; (2) charge for services that do not 
constitute ``biometric services;'' and (3) charge for services that are 
not necessary. Based on

[[Page 58967]]

the potential problems with requiring all TPS re-registrants to pay the 
biometric services fee, the commenter respectfully urged USCIS to 
interpret its fee rule to exempt TPS re-registrants from paying the 
biometric services fee, or impose a reduced fee for TPS re-registrants 
whose biometric information does not need to be collected. The 
commenter additionally suggested that initial TPS registrants should 
not be charged the costs of background checks that are already subsumed 
in the $50 TPS registration fee. INA section 244(c)(1)(B), 8 U.S.C. 
1254a(c)(1)(B) (authorizing ``payment of a reasonable fee as a 
condition of registering [for TPS] . * * * The amount of any such fee 
shall not exceed $50.'' (emphasis added)); Department of Homeland 
Security Appropriations Act, 2010, Public Law 111-83, section 549, 123 
Stat. 2177 (Oct. 28. 2009); 8 U.S.C. 1254b(a) (authorizing ``fees for 
fingerprinting services, biometric services, and other necessary 
services [to] be collected when administering the program described in 
section 1254a''); 75 FR 33445, 33446-01, 33447. The commenter asserts 
that because of these limits, a $50 TPS application fee is imposed only 
once, upon initial registration.
    The commenter noted that it represents a nationwide class of 
Central American TPS applicants, in the currently pending class action 
challenging USCIS biometric fee requirements.\3\ The majority of the 
comment reiterated the arguments that the plaintiffs made in the 
litigation. DHS agrees with the reasoning of the District Court in 
dismissing that case.\4\
---------------------------------------------------------------------------

    \3\ Bautista-Perez v. Holder, No. 3:07-cv-04192-TEH (N.D. Cal.). 
See 2009 WL 2031759 (N.D. Cal. July 9, 2009) (order denying 
plaintiff's motion for partial summary judgment and granting in part 
and denying in part defendants' cross-motion for summary judgment).
    \4\ Bautista-Perez v. Holder, No. 3:07-cv-04192-TEH (N.D. Cal. 
Sept. 15, 2010), Dk. No. 153 (order granting defendant's motion to 
dismiss with leave to amend complaint). ``The strict accounting that 
Plaintiffs demand for the biometric services fee is unwarranted by 
the statute. [Pub. L. 111-83, section 549, 123 Stat. 2142 (Oct. 28, 
2009)] does not purport to dictate how USCIS calculates the fee for 
this service; it merely authorizes the charging of fees for 
``necessary services * * * when administering'' the TPS program. 
USCIS does not defy that authority by charging a standard fee even 
though some applicants require more services than others. * * * 
Plaintiffs argue, in essence, that section 549 requires every 
component of the fee to be directly tied to the fee-payer's TPS 
application. The Court does not see how section 549 gives it the 
authority to scrutinize the calculation of USCIS's biometric 
services fee in such painstaking detail.'' Dk. No. 154, slip. op. at 
15.
---------------------------------------------------------------------------

    DHS had proposed in that section that no biometric services fee 
would be charged when ``[t]here is no fee for the associated benefit 
request that was, or is, being submitted.'' See proposed 8 CFR 
103.7(b)(1)(i)(C)(2); 75 FR 33445, 33484. DHS proposed this change both 
as a humanitarian measure and for administrative efficiency for certain 
immigration benefit requests for which DHS had previously provided an 
exemption from the initial immigration benefit request fee for the 
underlying benefit request in the FY 2008/2009 fee rule. The 2008/2009 
fee rule promulgated several general exemptions to immigration benefit 
request fees. For example, the rule provided that there was no fee for 
a Petition for Amerasian, Widow(er), or Special Immigrant, Form I-360, 
filed by an individual seeking classification as an Amerasian; a self-
petitioning battered or abused spouse, parent, or child of a United 
States citizen or lawful permanent resident; or a Special Immigrant 
Juvenile. See 72 FR 29851 (May 30, 2007), 29865, 29873. Fee exemptions 
were also provided for four small volume programs: victims of human 
trafficking (T visas), victims of violent crime (U visas), VAWA self-
petitioners, and Special Immigrant Juveniles. The reasons for providing 
these specific application and petition fee exemptions were fully 
discussed in the 2008/2009 proposed fee rule. See 72 FR 4888, 4903 
(Feb. 1, 2007). In that rule, DHS also provided for additional fee 
waivers, such as the biometric fee, where individuals demonstrate an 
inability to pay. See 72 FR 29851, 29874; 8 CFR 103.7(c)(5).
    Although DHS exempted individuals requesting the specific 
humanitarian benefits noted above from having to pay the immigration 
benefit request fees in the FY 2008/2009 fee rule, DHS did not 
specifically exempt them, on a blanket basis, from also paying the 
associated biometrics fee. At that time, DHS only provided eligibility 
for an individualized biometrics fee waiver where the applicant or 
petitioner could show an inability to pay the biometrics fee under 8 
CFR 103.7(c). There has been continuing confusion since the FY 2008/
2009 fee rule about whether the biometric services fee is required if 
the immigration benefit request fee is not required. USCIS has 
accommodated some of the concerns by administratively treating a 
request for a fee waiver of the underlying benefit fee as also a 
request for a waiver of the biometrics fee, and not requiring a 
duplicate, simultaneous or subsequent request to waive that fee. In the 
proposed rule, DHS proposed an amendment in 8 CFR 103.7(b)(1)(i)(C)(2) 
to simplify the process so that a biometrics fee would also not be 
required for those particular fee-exempt immigration benefit requests 
that DHS considered when deciding to provide fee exemptions. DHS also 
intended that no biometrics fee would be required in cases where any 
immigration benefit request fee for the associated benefit was waived, 
on a case-by-case basis, under 8 CFR 103.7(c).
    The proposed revision and the final rule implement Congressional 
enactment of the Department of Homeland Security Appropriations Act, 
2010, specifying that: ``In addition to collection of registration fees 
described in section 244(c)(1)(B) of the [INA] (8 U.S.C. 
1254a(c)(1)(B)), fees for fingerprinting services, biometric services, 
and other necessary services may be collected when administering the 
[TPS] program described in section 244 of such Act.'' Public Law 111-
83, 123 Stat. 2142 (Oct. 28, 2009).
    Through the language that was initially proposed for 8 CFR 
103.7(b)(1)(i)(C)(2) and consistent with current TPS fee waiver 
practice, DHS intended that the biometrics fee would not be required 
from an initial TPS applicant who was granted a waiver of the initial 
TPS application fee based on inability to pay. However, DHS did not 
intend that the proposed regulatory language should be construed to 
exempt from payment of the biometric services fee all TPS 
beneficiaries, aged 14 and older, who apply to re-register for TPS, 
regardless of inability to pay. Although applicants for TPS re-
registration do not currently submit the $50 for the Application for 
Temporary Protected Status, Form I-821, after their initial TPS 
applications, TPS beneficiaries have often held TPS status for several 
years, and they have been eligible for employment authorization at 
least since obtaining TPS, and earlier if they were found eligible for 
TPS temporary treatment benefits. See 8 CFR 244.5 and 244.12. Most TPS 
beneficiaries, in fact, have employment authorization documents.
    Unlike many of the initial applicants for the fee-exempt 
humanitarian benefits, such as T and U visas, special immigrant 
juveniles, and certain self-petitioning battered aliens, TPS 
beneficiaries seeking re-registration have work authorization and thus, 
generally have less need for a blanket exemption from the biometric 
services fee. If all such re-registering TPS beneficiaries were exempt 
from the biometrics fee, the cost of providing them with biometric 
services would need to be borne by other applicants and petitioners for 
immigration benefits. DHS does not perceive a need to shift the 
biometrics costs for re-registering TPS beneficiaries onto other 
individuals

[[Page 58968]]

through a blanket biometrics fee exemption. However, DHS will continue 
to provide, on an individual basis, a fee waiver of the biometrics fee 
when a re-registering TPS beneficiary does demonstrate an inability to 
pay the $85 biometric fee. DHS has revised the language of this 
provision to ensure clarity and to alleviate potential confusion. New 8 
CFR 103.7(b)(1)(i)(C).
3. Bundling
    One commenter specifically argued that defects in the current 
regulation persist in the proposed fee rule in that both the current 
regulations and the proposed rule exceed the authority granted under 
INA section 286(m), 8 U.S.C. 1356(m), by ``bundling'' certain benefits 
and associated fees. Specifically, the commenter argued that DHS erred 
in the 2008/2009 fee rule by: (1) Impermissibly ``bundling'' the fee 
for applications to adjust status with the fees for interim benefits, 
requiring applicants to pay for services that they do not want or need, 
cannot use, and/or do not actually receive and (2) improperly including 
in application and petition fees the costs of agency activities that 
are distantly related, if at all, to the provision of immigration 
services to fee-paying applicants.\5\
---------------------------------------------------------------------------

    \5\ The commenter makes the same arguments that it made in 
Barahona v. Napolitano, No. 1:10-cv-1574-SAS (S.D.N.Y.).
---------------------------------------------------------------------------

    DHS disagrees with the commenter's belief that the law requires 
that IEFA fees be tied to the actual services provided. As explained 
above, the cost-to-services linkage under the IOAA is not applicable to 
fees under the IEFA, which is an exception to the IOAA. The IEFA is 
administered using the cost modeling similar to that used in IOAA fees, 
but necessarily includes administrative decisions to assign overhead 
costs that cannot be readily associated with specific activities. 
Similarly, administrative discretion must be applied when a substantial 
cost would be generated in attempting to drive costs to highly 
individualized objects, such as individual applicants. In effect, the 
Administration bundles certain costs to fees because it may be more 
efficient to do so and can create a total lower cost of operation. DHS 
determined to bundle the fees as a resolution to simplify interim 
benefits and reduce interim benefit applications. The costs of 
administering individualized fee determinations exceed the benefits to 
the totality of applicants and petitioners, and the government. 72 FR 
29851, 29861 (providing multiple fee options based on who typically 
requests interim benefits, when records indicate that the vast majority 
of applicants do request interim benefits, would be too complicated and 
costly for USCIS to administer). USCIS may reconsider this evaluation 
during a fee review cycle after the implementation of electronic 
records. DHS and USCIS may be able to provide this type of customized 
fee structure in the future, but cannot effectively do so at this time.
    The commenter's concern reflects a limited view of the decision-
making process. Policy decisions inherently made by regulations 
directly affect the fee structure. For example, the policy decision to 
exempt aliens who are victims of a severe form of trafficking in 
persons and who assist law enforcement in the investigation or 
prosecution of the acts of trafficking (T Visa), and aliens who are 
victims of certain crimes and are being helpful to the investigation or 
prosecution of those crimes (U Visa), from visa fees, the cost of 
processing those fee-exempt visas must be recovered by fees charged 
against other applications. INA sections 101(a)(15)(T), (U), 214(o), 
(p), 8 U.S.C. 1101(a)(15)(T), (U), and 1184(o), (p); 8 CFR 214.11, 
214.14, 103.7(c)(5)(iii); Adjustment of Status to Lawful Permanent 
Resident for Aliens in T or U Nonimmigrant Status, 73 FR 75540 (Dec. 
12, 2008). Each such decision affects the totality of the fee-paying 
applicants and petitioners and removes some source of revenue. 
Inherently, and consistent with INA section 286(m), 8 U.S.C. 1356(m), 
that revenue is recovered from other fee-paying applicants and 
petitioners.
    The commenter's suggestion that DHS lacks authority to make policy 
decisions adjusting the amount of fees also overlooks the reality of 
the two contiguous and complete sources of funding for USCIS. The 
totality of funding for USCIS from two sources effectively means that 
if one source is insufficient, the other source must make up the 
difference, or workload will not be performed at the prescribed level, 
itself a policy choice.
    Policy decisions made regarding the implementation of the 
Immigration and Nationality Act and other immigration laws inherently 
and directly affect USCIS budget requirements. Both INA section 286(m) 
and Congress, in annual appropriations and expenditure level approvals, 
recognize this point. The Administration has taken steps within the 
enacted FY 2010 appropriations for USCIS to move away from fee-
generated revenue to support asylum, refugee, and military 
naturalization costs. The Administration seeks to improve the linkage 
between fees paid by USCIS applicants and petitioners and the cost of 
programs and activities to provide immigration benefits as a matter of 
policy, not a matter of law.
4. Fraud Detection and National Security (FDNS) and Other Program Costs
    Several commenters suggested that the proposed rule should have 
excluded any law enforcement or national security functions, such as 
the Fraud Detection and National Security (FDNS) operations. DHS 
disagrees with these suggested restrictions and continues to believe 
that it may fund, as a matter of discretion, all of USCIS operations, 
or more, from fees.
    Other commenters suggested that additional costs should be 
recovered through the IEFA account. Implicitly, these comments suggest 
an understanding that the authority of DHS under the INA is broader 
than DHS is, in fact, currently exercising.
    The realignment of functions within USCIS to create the FDNS was a 
consolidation of specific previous functions from benefit programs to 
streamline operations. In a sense, FDNS was created to consolidate the 
anti-fraud efforts within USCIS that have traditionally been funded 
from fees. These anti-fraud efforts are not impermissible under INA 
section 286(m), 8 U.S.C. 1356(m). DHS does not opine on whether the 
anti-fraud efforts of FDNS would be permissible under the IOAA, but 
only that INA section 286(m) is an exception to the IOAA and the 
Administration is permitted to decide, as a matter of policy, to 
include these charges within the IEFA. 31 U.S.C. 9701(c).
    As for anti-fraud, law enforcement, and national security efforts, 
DHS believes that the commenters misunderstand the nature of these 
efforts. These efforts are integral to determining an applicant's 
eligibility for a benefit, and to maintain the integrity of the 
immigration system. Background check information helps benefit public 
safety and security by identifying persons who may be ineligible for a 
benefit due to a criminal background. Further, recent fraud detection 
efforts have resulted in changes to several USCIS programs, such as the 
final rule, Special Immigrant and Nonimmigrant Religious Workers, 
published specifically to address concerns about the integrity of the 
religious worker program that were uncovered by USCIS fraud detection 
experts. See 73 FR 72276 (Nov. 26, 2008). The filing of an immigration 
benefit request is why security checks, fraud reviews, and 
investigations of possible violations are

[[Page 58969]]

needed. Thus it is appropriate for the full costs of these efforts to 
be funded by fees paid by those who file such requests.
    Accordingly, DHS disagrees that the inclusion of FDNS in the fee 
calculation is inappropriate and will continue to fund that function 
through fees. This final rule establishes a level of fees sufficient to 
recover the full cost of operating USCIS, including the anti-fraud 
functions of FDNS. The rule has not been amended to include other costs 
that could legally be charged or to exclude any costs of operating 
USCIS.
5. Office of Management and Budget Circulars
    Several commenters also suggested that DHS's authority to 
promulgate fees is limited by Office of Management and Budget (OMB) 
Circular No. A-25, which ``establishes Federal policy regarding fees 
assessed for Government services'' and defines the term ``full cost.'' 
OMB Circular A-25, User Charges, 58 FR 38142 (July 15, 1993), available 
at https://www.whitehouse.gov/omb/circulars_a025. See FPC v. New 
England Power Co., 415 U.S. at 349-51. DHS agrees that OMB Circular A-
25 sets federal policy and provides guidance for user fees under the 
IOAA, 31 U.S.C. 9701, discussed above, but disagrees that Circular A-25 
applies under INA section 286(m), 8 U.S.C. 1356(m). The guidance of OMB 
Circular A-25 is internal Executive Branch policy guidance, direction 
from the Office of Management and Budget to the agencies on the subject 
of user fees under the IOAA.
    As the Circular explains, OMB issued it pursuant to ``Title V of 
the Independent Offices Appropriations Act of 1952 (31 U.S.C. 9701)'' 
(IOAA). See Circular A-25, section 3 (``Authority''). The Circular goes 
on to explain the relationship between the Circular's provisions and 
the IOAA, and between the Circular's provisions and other fee statutes: 
``The provisions of the Circular shall be applied by agencies in their 
assessment of user charges under the IOAA. In addition, this Circular 
provides guidance to agencies regarding their assessment of user 
charges under other statutes.'' See id., section 4b.
    Thus, as the Circular explains, its provisions are ``guidance to 
agencies regarding their assessment of user charges under other 
statutes.'' One of these ``other statutes'' is INA section 286(m), 8 
U.S.C. 1356(m). Accordingly, with respect to the implementation of INA 
section 286(m), Circular A-25 has the status of internal Executive 
Branch policy guidance. See HHS v. FLRA, 844 F.2d 1087, 1095-96 (4th 
Cir. 1988) (en banc) (OMB Circular A-76 is internal Executive Branch 
guidance). As Circular A-25 is internal Executive Branch guidance with 
respect to the establishment of fees under INA section 286(m), the 
Circular does not impose legally-binding (i.e., judicially enforceable) 
limits on DHS' authority to promulgate fees under section 286(m). See 
HHS v. FLRA, id. (as internal Executive Branch guidance, Circular A-76 
is not judicially enforceable).
    One commenter stated that OMB Circular A-25 requires USCIS to 
identify the costs for each service and directly match those costs to 
the fee charged. The commenter suggested that the expenses for 
operating USCIS included in the calculation of costs that must be 
covered from the collection of fees exceeded what was appropriate. The 
commenter suggested that USCIS expenses recovered and fees paid must 
relate to the specific service, and that DHS is not authorized to 
include costs that are unrelated or only tangentially related to the 
cost of providing the services. For example, the commenter suggested 
that DHS is not authorized to recover with fees the costs of the SAVE 
and E-Verify programs, or expenses related to anti-fraud, law 
enforcement, and national security efforts.
    As clearly stated in the proposed rule, DHS begins its fee process, 
consistent with OMB Circular A-25, by engaging in activity-based 
costing (ABC). See 75 FR 33445, 33448. USCIS adds to the ABC model 
result the necessary amount for overhead and other costs not driven by 
the cost of services. See id. This is consistent with full cost 
recovery. The term ``full cost'' used in INA section 286(m), 8 U.S.C. 
1356(m), means the costs of operating USCIS, less any appropriated 
funding. DHS makes adjustments based on Administration policy within 
its discretion under the INA. See 75 FR 33445, 33448. Thus, the fees 
established in this rule are necessary, rational, and reasonable, and 
comply with the INA and applicable guidance. The decision to structure 
USCIS fees as proposed and in this final rule is the culmination of an 
administrative process that conforms with Administration policy. As 
stated in the proposed rule, USCIS has historically been funded almost 
exclusively by fees. See 75 FR 33445, 33447. Also, the INA provides 
authority to charge fees that are broader than the IOAA and Circular A-
25.
    DHS understands the desire of the commenters. DHS's interpretation 
of INA section 286(m) should not be construed to mean that the 
Administration believes there is no merit in relating fees to specific 
services rendered. The President has proposed to remove $259 million 
from the USCIS fee base through appropriations for FY2011. 
Congressional support for the first stage of this process is evidenced 
by the FY2010 appropriation. The process by which increased linkage can 
be made depends upon the Congress. While DHS agrees with the commenter 
that certain costs ``should'' be borne by appropriation, until Congress 
provides that appropriation, these costs must be borne by the fee 
structure under INA section 286(m), 8 U.S.C. 1356(m). DHS has already 
begun preparing for its next biennial immigration fee review. The next 
fee review will consider further refinements to how immigration fees 
are determined, including the level by which fees match assignable, 
associated, and indirect costs.
6. Accounting Standards
    Commenters implicitly questioned whether DHS and USCIS complied 
with appropriate accounting standards in the proposed fee rule. The 
proposed fee rule and this final fee rule reflect DHS conformity with 
the requirements of the Chief Financial Officers Act of 1990 (CFO Act), 
31 U.S.C. 901-03, that each agency's Chief Financial Officer (CFO) 
``review, on a biennial basis, the fees, royalties, rents, and other 
charges imposed by the agency for services and things of value it 
provides, and make recommendations on revising those charges to reflect 
costs incurred by it in providing those services and things of value.'' 
Id. at 902(a)(8).
    Like OMB Circular A-25, the cost accounting concepts and standards 
developed by the Federal Accounting Standards Advisory Board (FASAB) 
define ``full cost'' to include: ``(1) The costs of resources consumed 
by the segment that directly or indirectly contribute to the output, 
and (2) the costs of identifiable supporting services provided by other 
responsibility segments within the reporting entity, and by other 
reporting entities.'' Federal Accounting Standards Advisory Board, 
Statements of Financial Accounting Concepts and Standards: 
Pronouncements as Amended 437 (June 2009). To determine the full cost 
of a service or services, FASAB identifies various classifications of 
costs to be included and recommends various methods of cost assignment. 
As generally accepted accounting principles, FASAB's standards are 
conventions of federal financial accounting, not statutory or 
regulatory requirements. As the Supreme Court pointed out in Shalala v. 
Guernsey Memorial Hospital, ``Financial accounting is not a science. It 
addresses

[[Page 58970]]

many questions as to which the answers are uncertain and is a `process 
[that] involves continuous judgments and estimates.' '' 514 U.S. 87, 
100 (1995) (citing, R. Kay & D. Searfoss, Handbook of Accounting and 
Auditing, ch. 5, p. 7-8 (2d ed. 1989)).
    As explained above, DHS applies the discretion provided in INA 
section 286(m), 8 U.S.C. 1356(m), in a manner consistent with its 
responsibilities for operation of government and the goals of providing 
immigration services and transparent accounting. DHS applies that 
judgment to: (1) Develop activity-based costing to establish basic fee 
setting parameters, (2) apply administrative judgment to allocate 
overhead and other indirect costs, and (3) apply policy judgments to 
effectuate the overall Administration policy. The ``full'' cost to the 
Government of operating USCIS, less any appropriated funding, has been 
the historical total basis for establishing the cost basis for the 
fees, and Congress has consistently recognized this concept in its 
annual appropriations. This final rule, therefore, reflects the 
authority granted to DHS by INA section 286(m) and other statutes.
    In sum, DHS disagrees with the commenters' assertions that DHS has 
exceeded its authority. DHS has implemented the requirements of INA 
section 286(m) appropriately and has made no changes in the final rule 
in light of these comments.

B. Relative