U.S. Citizenship and Immigration Services Fee Schedule, 73292-73332 [2016-25328]

Download as PDF 73292 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations DEPARTMENT OF HOMELAND SECURITY 8 CFR Parts 103, 204, and 205 [CIS No. 2577–15; DHS Docket No. USCIS– 2016–0001] RIN 1615–AC09 U.S. Citizenship and Immigration Services Fee Schedule U.S. Citizenship and Immigration Services, DHS. ACTION: Final rule. AGENCY: The Department of Homeland Security (DHS) is adjusting the fee schedule for immigration and naturalization benefit requests processed by U.S. Citizenship and Immigration Services (USCIS). The fee schedule was last adjusted on November 23, 2010. USCIS conducted a comprehensive fee review for the fiscal year (FY) 2016/2017 biennial period and determined that current fees do not recover the full cost of services provided. DHS has determined that adjusting the fee schedule is necessary to fully recover costs and maintain adequate service. DHS published a proposed fee schedule on May 4, 2016. Under this final rule, DHS will increase fees by a weighted average of 21 percent; establish a new fee of $3,035 covering USCIS costs related to processing the Employment Based Immigrant Visa, Fifth Preference (EB–5) Annual Certification of Regional Center, Form I–924A; establish a three-level fee for the Application for Naturalization, Form N–400; and remove regulatory provisions that prevent USCIS from rejecting an immigration or naturalization benefit request paid with a dishonored check or lacking the required biometric services fee until the remitter has been provided an opportunity to correct the deficient payment. SUMMARY: This rule is effective December 23, 2016. Applications or petitions mailed, postmarked, or otherwise filed on or after December 23, 2016 must include the new fee. FOR FURTHER INFORMATION CONTACT: Joseph D. Moore, Chief Financial Officer, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529– 2130, telephone 202–272–1969. SUPPLEMENTARY INFORMATION: sradovich on DSK3GMQ082PROD with RULES4 DATES: Table of Contents I. Executive Summary II. Background III. Final Rule VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 A. Changes in the Final Rule B. Corrections C. Summary of Final Fees IV. Public Comments on the Proposed Rule A. General Comments B. Relative Amount of Fees 1. Proposed Fees Are Too High a. Barrier to Family Reunification b. Impact on Low-Income Individuals; Low Volume Reallocation 2. Comments on Specific Fees and Adjustments a. Application for Certificate of Citizenship, Forms N–600/600K b. Adoption, Forms I–600/600A/800/800A c. Petition for a Nonimmigrant Worker, Form I–129 d. Application To Register Permanent Residence or Adjust Status, Form I–485, and Interim Benefits e. Application for Travel Document, Form I–131 f. Students g. Application for Replacement Naturalization/Citizenship Certificate, Form N–565 h. Petition for Alien Relative, Form I–130 i. Application To Replace Permanent Resident Card, Form I–90 j. Genealogy, Forms G–1041/1041A k. Petition To Remove Conditions on Residence, Form I–751 ´ l. Petition for Alien fianc&eacute;(e), Form I–129F m. Petition for Amerasian, Widow(er), or Special Immigrant, Form I–360 n. Notice of Appeal or Motion, Form I– 290B o. Application for Civil Surgeon Designation, Form I–910 p. Application for Advance Permission to Enter as a Nonimmigrant, Form I–192, and Application for Waiver of Passport and/or Visa, Form I–193 C. Fee Waivers and Exemptions D. Naturalization E. Improve Service and Reduce Inefficiencies F. Premium Processing G. Immigrant Investors 1. Application for Regional Center Under the Immigrant Investor Program, Form I– 924 2. Immigrant Petition by Alien Entrepreneur, Form I–526 3. Petition by Entrepreneur To Remove Conditions on Permanent Resident Status, Form I–829 H. Methods Used To Determine Fee Amounts 1. Recovery of Full Cost Without Appropriations 2. Exclusion of Temporary or Uncertain Costs, Items, and Programs 3. Setting Fees by Benefit Type 4. Income-Based Fee Structure 5. Reduction in USCIS Costs I. Dishonored Payments J. Refunds K. Visa Allocation L. Credit Card Payments V. Statutory and Regulatory Reviews A. Regulatory Flexibility Act—Final Regulatory Flexibility Analysis 1. A Statement of the Need for, and Objectives of, the Rule 2. A Statement of the Significant Issues Raised by the Public Comments in PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 Response to the Initial Regulatory Flexibility Analysis, A Statement of the Assessment of the Agency of Such Issues, and A Statement of Any Changes Made in the Proposed Rule as a Result of Such Comments a. Comments on Form I–129 b. Comments on Forms I–360 and I–485 c. Comments on Forms G–1041 and G– 1041A d. Comments on Form I–924A 3. The Response of the Agency to Any Comments Filed by the Chief Counsel for Advocacy of the Small Business Administration in Response to the Proposed Rule, and a Detailed Statement of Any Change Made to the Proposed Rule in the Final Rule as a Result of the Comments 4. A Description of and an Estimate of the Number of Small Entities to Which the Rule Will Apply or an Explanation of Why No Such Estimate is Available a. Petition for a Nonimmigrant Worker, Form I–129 b. Immigrant Petition for an Alien Worker, Form I–140 c. Application for Civil Surgeon Designation, Form I–910 d. Regional Center Designation Under the Immigrant Investor Program, Form I–924 and I–924A e. Petition for Amerasian, Widow(er), or Special Immigrant, Form I–360 5. A Description of the Projected Reporting, Recordkeeping and Other Compliance Requirements of the Rule, Including an Estimate of the Classes of Small Entities Which Will Be Subject to the Requirement and the Type of Professional Skills Necessary For Preparation of the Report or Record 6. A Description of the Steps the Agency Has Taken To Minimize the Significant Economic Impact on Small Entities Consistent With the Stated Objectives of Applicable Statutes, Including a Statement of the Factual, Policy, and Legal Reasons for Selecting the Alternative Adopted in the Final Rule and Why Each One of the Other Significant Alternatives to the Rule Considered by the Agency Which Affect the Impact on Small Entities was Rejected B. Unfunded Mandates Reform Act C. Small Business Regulatory Enforcement Fairness Act D. Congressional Review Act E. Executive Orders (E.O.) 12866 and 13563 (Regulatory Planning and Review) 1. Background and Purpose of the Final Rule 2. Amendments and Impacts of Regulatory Change a. Dishonored Payments b. Failure To Pay the Biometric Services Fees c. Reduced Fee for Application for Naturalization d. Refunds F. Executive Order 13132 (Federalism) G. Executive Order 12988 (Civil Justice Reform) H. Family Assessment E:\FR\FM\24OCR4.SGM 24OCR4 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES4 I. Paperwork Reduction Act—Comments on the Proposed Information Collection Changes 1. Request for Reduced Fee, Form I–942 2. Annual Certification of Regional Center, Form I–924A I. Executive 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 review for the FY 2016/2017 biennial period, refined its cost accounting process, and determined that current fees do not recover the full costs of services provided. DHS has determined that adjusting USCIS’ fee schedule is necessary to fully recover costs and maintain adequate service. In this final rule, DHS will: • Adjust fees by a weighted average increase of 21 percent to ensure that fees for each benefit type are adequate to cover USCIS’ costs associated with processing applications and petitions, as well as providing similar benefits to asylum and refugee applicants 1 and certain other immigrants at no charge. • Establish a new fee of $3,035 to recover the full cost of processing the Employment Based Immigrant Visa, Fifth Preference (EB–5) Annual Certification of Regional Center, Form I– 924A. • Establish a three-level fee for Application for Naturalization, Form N– 400. First, DHS will increase the standard fee for Form N–400 from $595 to $640. Second, DHS will continue to charge no fee to applicants who meet the requirements of sections 328 or 329 of the Immigration and Nationality Act of 1952 (INA) with respect to military service and applicants with approved fee waivers. Third, DHS will charge a reduced fee of $320 for naturalization applicants with family income greater than 150 percent and not more than 200 percent of the Federal Poverty Guidelines. • Remove regulatory provisions that prevent USCIS from rejecting an immigration or naturalization benefit request paid with a dishonored check or lacking the required biometric services fee until the remitter has been provided an opportunity to correct the deficient payment. • Clarify that persons filing any benefit request may be required to appear for biometrics services or an interview and may be required to pay the biometrics services fee. 1 Although the President has announced an increase in the refugee admissions ceiling to 110,000, the final fee structure includes costs for only 100,000, which was the anticipated ceiling at the time that the fee review was conducted. VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 II. Background DHS published a notice of proposed rulemaking (NPRM) on May 4, 2016, which proposed adjusting USCIS’ fee schedule by a weighted average increase of 21 percent. See U.S. Citizenship and Immigration Services Fee Schedule; Proposed Rule, 81 FR 26904. This final rule establishes the first fee adjustment since 2010. It is a result of a comprehensive fee review conducted by USCIS for the FY 2016/2017 biennial period. During the fee review, USCIS determined that current fees do not recover the full costs of processing immigration benefits. This final rule reflects full cost recovery including program costs that DHS excluded in the 2010 final rule. USCIS provided the FY 2016/2017 Immigration Examinations Fee Account (IEFA) Fee Review Supporting Documentation (supporting documentation), which includes budget methodology, and regulatory flexibility analysis, in the public docket. See http://www.regulations.gov, docket number USCIS–2016–0001. This final rule includes the addition of fee surcharges applied to certain immigration benefits to fully recover costs related to the USCIS Refugee, Asylum, and International Operations Directorate (RAIO), the Systematic Alien Verification for Entitlements (SAVE) program (to the extent not recovered from users),2 and the Office of Citizenship.3 In the 2010 final rule, USCIS assumed it would continue receiving funding for these programs through congressional appropriations. See U.S. Citizenship and Immigration Services Fee Schedule, 75 FR 58962, 58966 (Sept. 24, 2010). The 2010 final rule removed asylum, refugee, and military naturalization costs from the fee structure and assumed that immigration fees would not be used to recover the costs of adjudicating asylum, refugee, and military naturalization requests, as well as costs associated with the SAVE program and 2 The SAVE program was established in 1987 by the Immigration Reform and Control Act, Pub. L. 99–603, sec. 121(c) (Nov. 6, 1986), which required the Commissioner of the Immigration and Naturalization Service to ‘‘implement a system for the verification of immigration status . . . so that the system is available to all States by not later than October 1, 1987.’’ SAVE uses an internet-based service to assist Federal, state, and local benefitissuing and licensing agencies, and other governmental entities, in determining the immigration status of benefit or license applicants, so that only those applicants entitled to benefits or licenses receive them. 3 The USCIS Office of Citizenship was established by section 451(f) of the Homeland Security Act of 2002. Pub. L. 107–296, sec. 451(f) (2002). The statute tasks the office with ‘‘promoting instruction and training on citizenship responsibilities for aliens interested in becoming naturalized citizens.’’ PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 73293 the Office of Citizenship. The final rule removed all of these costs from the USCIS fee structure, instead assuming that these services would be funded using appropriated funds. See 75 FR 58963. That budget request was not fulfilled, and USCIS was left to fund the cost of these programs after having removed the surcharge. See Pub. L. 112– 10, sec. 1639 (Apr. 15, 2011).4 DHS issues this final rule consistent with the Immigration and Nationality Act (INA) section 286(m), 8 U.S.C. 1356(m) (authorizing DHS to charge fees for adjudication and naturalization services at a level to 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) and the Chief Financial Officers (CFO) Act of 1990, 31 U.S.C. 901–03 (requiring each agency’s CFO to review, on a biennial basis, the fees imposed by the agency for services it provides, and to recommend changes to the agency’s fees). The NPRM provides additional information on the legal authority, nonstatutory guidance, and background on the IEFA fees. See 81 FR 26906. III. Final Rule A. Changes in the Final Rule This section details the changes made in this final rule as compared to the NPRM. These changes are summarized as follows: 1. Application to Register Permanent Residence or Adjust Status, Form I–485. DHS has revised the regulatory language regarding the fee for the Application to Register Permanent Residence or Adjust Status, Form I–485, to clarify that the proposed $750 discounted fee is available for all applicants under 14 years old who submit their Form I–485 with that of a parent. These revisions accord the fee regulations with the current Form I–485 instructions and intake practices. See new 8 CFR 103.7(b)(1)(i)(U)(2); 81 FR 26919. The section later in this preamble entitled, ‘‘Adjustment of Status, Form I–485, and Interim Benefits,’’ provides more details about this change. 4 USCIS received $29.95 million of the requested $248 million to fund a portion of the refugee and asylum processing administered under the RAIO Directorate and military naturalization processing in Fiscal Year 2011. USCIS has not received any substantial appropriations for these programs since FY 2011. USCIS received $2.5 million for the immigrant integration grants program in FY 2014 (Pub. L. 113–76) and FY 2013 (Pub. L. 113–6). USCIS did not receive appropriations for the immigrant integration grants program in FY 2015 or FY 2016. Similarly, USCIS received no FY 2016 discretionary appropriations for the SAVE program or for the Office of Citizenship. See DHS Appropriations Act 2016, Pub. L. 114–113, div. F. (Dec. 18, 2015). E:\FR\FM\24OCR4.SGM 24OCR4 73294 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations 2. Dishonored payments. DHS has also clarified the regulations governing USCIS actions when a check used to pay the required fee is dishonored by the remitter’s bank. Under this final rule, USCIS will submit all initially rejected payments to the applicant’s bank a second time for it to clear or be rejected. 8 CFR 103.2(a)(7)(ii)(D). If the check is rejected again following re-submission by USCIS, it will reject the case for fee non-payment. If the case has been approved, USCIS will send a notice of intent to revoke the approval. The section later in this preamble entitled, ‘‘Dishonored Payments,’’ provides more details about this change. 3. Application for Advance Permission to Enter as a Nonimmigrant, Form I–192, and Application for Waiver for Passport and/or Visa, Form I–193. DHS has made adjustments to the proposed fees in the final rule for the Application for Advance Permission to Enter as a Nonimmigrant, Form I–192, and the Application for Waiver for Passport and/or Visa, Form I–193. For the reasons outlined in section IV.B.2.p. of this preamble, the fees that will be charged for Forms I–192 and I–193 will remain at $585, rather than the proposed fee of $930 when such forms are submitted to and processed by the U.S. Customs and Border Protection (CBP). See new 8 CFR 103.7(b)(1)(i)(P)– (Q). B. Corrections DHS inadvertently listed Application by Refugee for Waiver of Grounds of Excludability, Form I–602, in the NPRM preamble and the supporting documentation. DHS listed Form I–602 in the NPRM as part of Waiver Forms in section IV, Fee Review Methodology, at 81 FR 26916 and tables 8 and 9 at 81 FR 26926–26927. USCIS referenced it on pages 24, 47, 49, and 50 of the accompanying supporting documentation. The docket of this final rule includes a corrected version of the supporting documentation without references to Form I–602. Form I–602 has no fee and DHS should not have included it in these lists or tables. The NPRM did not assume any fee-paying workload for Form I–602; therefore, removing it from the fee schedule does not affect other fees. DHS continues to not charge a fee for Form I–602. DHS also inadvertently did not include provisions for what would occur if a benefit request was approved before USCIS became aware that the fee payment was dishonored by the remitter institution. See proposed 8 CFR 103.2(a)(7)(ii), 103.7(a)(2); 81 FR 26936– 26937. Specifically, DHS proposed to remove the requirement that USCIS provide notification to the requester whenever an instrument used to pay the filing fee is returned as not payable, with 14 days to cure the deficiency. However, DHS neglected to propose the necessary conforming change to 8 CFR 205.1(a)(2), which provides that the approval of a petition or self-petition made under INA section 204 is automatically revoked if the filing fee and associated service charge are not paid within 14 days of the notification to the remitter that his or her check or other financial instrument used to pay the filing fee has been returned as not payable. The latter provision must be revised to conform it to the proposed change described previously. That oversight has been corrected in this final rule. New 8 CFR 103.7(a)(2)(iii), 205.1(a). This change is discussed in more detail in the response to the public comments regarding dishonored payments. C. Summary of Final Fees The current USCIS fee schedule and the fees adopted in this final rule are summarized in Table 1. DHS bases the final fees on the FY 2016/2017 estimated cost baseline as outlined in the NPRM. The table excludes fees established and required by statute and those that DHS cannot adjust. TABLE 1—NON-STATUTORY IEFA IMMIGRATION BENEFIT REQUEST FEES Form No.5 Title G–1041 ............................................ G–1041A .......................................... G–1041A .......................................... I–90 .................................................. I–102 ................................................ Genealogy Index Search Request ............................................................ Genealogy Records Request (Copy from Microfilm) ................................ Genealogy Records Request (Copy from Textual Record) ...................... Application to Replace Permanent Resident Card ................................... Application for Replacement/Initial Nonimmigrant Arrival-Departure Document. Petition for a Nonimmigrant Worker .......................................................... ´ Petition for Alien fianc&eacute;(e) ........................................................................ Petition for Alien Relative .......................................................................... Application for Travel Document ............................................................... Immigrant Petition for Alien Worker .......................................................... Application for Advance Permission to Return to Unrelinquished Domicile. Application for Advance Permission to Enter as Nonimmigrant ............... Application for Waiver of Passport and/or Visa ........................................ Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal. Notice of Appeal or Motion ....................................................................... Petition for Amerasian Widow(er) or Special Immigrant ........................... Application to Register Permanent Residence or Adjust Status .............. Application to Register Permanent Residence or Adjust Status (certain applicants under the age of 14 years). Immigrant Petition by Alien Entrepreneur ................................................. Application to Extend/Change Nonimmigrant Status ................................ Petition to Classify Orphan as an Immediate Relative/Application for Advance Petition Processing of Orphan Petition. Petition to Classify Convention Adoptee as an Immediate Relative/Application for Determination of Suitability to Adopt a Child from a Convention Country. Application for Waiver of Ground of Excludability .................................... Application for Provisional Unlawful Presence Waiver ............................. I–129/129CW ................................... I–129F .............................................. I–130 ................................................ I–131 6/I–131A 7 ............................... I–140 ................................................ I–191 ................................................ I–192 ................................................ I–193 ................................................ I–212 ................................................ sradovich on DSK3GMQ082PROD with RULES4 I–290B .............................................. I–360 ................................................ I–485 ................................................ I–485 ................................................ I–526 ................................................ I–539 ................................................ I–600/600A ....................................... I–800/800A ....................................... I–601 ................................................ I–601A .............................................. VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 Current fee E:\FR\FM\24OCR4.SGM 24OCR4 Final fee $20 20 35 365 330 $65 65 65 455 445 325 340 420 360 580 585 460 535 535 575 700 930 585 585 585 8 585/930 630 405 985 635 675 435 1,140 750 1,500 290 720 3,675 370 775 720 775 585 585 930 630 585 930 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations 73295 TABLE 1—NON-STATUTORY IEFA IMMIGRATION BENEFIT REQUEST FEES—Continued Form No.5 Title I–612 ................................................ Application for Waiver of the Foreign Residence Requirement (Under Section 212(e) of the INA, as Amended). Application for Status as a Temporary Resident under Section 245A of the Immigration and Nationality Act. Application for Waiver of Grounds of Inadmissibility ................................ Notice of Appeal of Decision ..................................................................... Application to Adjust Status From Temporary to Permanent Resident (Under Section 245A of the INA). Petition to Remove Conditions on Residence .......................................... Application for Employment Authorization ................................................ Request for Action on Approved Form I–800A ......................................... Application for Family Unity Benefits ........................................................ Application for Action on an Approved Application or Petition ................. Petition by Entrepreneur to Remove Conditions ...................................... Application for Civil Surgeon Designation ................................................. Application for Regional Center Designation Under the Immigrant Investor Program. Annual Certification of Regional Center .................................................... Petition for Qualifying Family Member of a U–1 Nonimmigrant ............... Application to File Declaration of Intention ............................................... Request for Hearing on a Decision in Naturalization Proceedings .......... Application for Naturalization .................................................................... Application to Preserve Residence for Naturalization Purposes .............. Application for Replacement Naturalization/Citizenship Document .......... Application for Certification of Citizenship/Application for Citizenship and Issuance of Certificate under Section 322. USCIS Immigrant Fee 11 ........................................................................... Biometric Services Fee ............................................................................. I–687 ................................................ I–690 ................................................ I–694 ................................................ I–698 ................................................ I–751 ................................................ I–765 ................................................ I–800A Supp. 3 ................................ I–817 ................................................ I–824 ................................................ I–829 ................................................ I–910 ................................................ I–924 9 .............................................. sradovich on DSK3GMQ082PROD with RULES4 I–924A .............................................. I–929 ................................................ N–300 .............................................. N–336 .............................................. N–400 .............................................. N–470 .............................................. N–565 .............................................. N–600/N–600K ................................ 5 Form, when used in connection with a benefit or other request to be filed with DHS to request an immigration benefit, means a device for the collection of information in a standard format that may be submitted in a paper format or an electronic format as prescribed by USCIS on its official Internet Web site. The term ‘‘Form’’ followed by an immigration form number includes an approved electronic equivalent of such form as made available by USCIS on its official Internet Web site. See 8 CFR 1.2 and 299.1. Therefore, the word ‘‘form’’ is used in this final rule in both the specific and general sense. 6 As described in the NPRM, the United States’ obligations under the 1967 Protocol relating to the Status of Refugees (incorporating by reference Article 28 of the 1951 U.N. Convention relating to the Status of Refugees) guide the Application for Travel Document fees for a Refugee Travel Document. The USCIS ABC model does not calculate these fees. See 8 CFR 103.7(b)(1)(i)(M)(2) and (3). 7 On August 31, OMB approved Form I–131A, Application for Travel Document (Carrier Documentation). The new form will be used by Lawful Permanent Residents (LPRs) who are temporarily overseas and have lost their Permanent Resident Card or Reentry Permit, to apply for a Travel Document. See https://www.uscis.gov/i131a. 8 The fee for Form I–192 will remain $585 when filed with and processed by CBP. 9 DHS removed the word ‘‘Pilot’’ from the form title. See new 8 CFR 103.7(b)(1)(i)(WW). 10 The current fee for applications filed on behalf of a biological child is $600. The fee for an adopted child is $550. There is no fee for any application filed by a member or veteran of any branch of the U.S. Armed Forces. 11 DHS changed the fee name to ‘‘USCIS Immigrant Fee.’’ See new 8 CFR 103.7(b)(1)(i)(D). VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 Current fee IV. Public Comments on the Proposed Rule DHS provided a 60-day comment period following publication of the NPRM; 436 comments were posted to regulations.gov. Although 475 comments were received on the docket, 38 were not posted and one was withdrawn. As noted in the proposed rule, DHS may withhold information provided in comments from public viewing if it determines that such information is offensive or may affect the privacy of an individual. 81 FR 26905. A. General Comments DHS received comments from a broad spectrum of individuals and organizations, including refugee and immigrant service and advocacy organizations, public policy groups, members of Congress, and private citizens. Some commenters wrote that they supported the fee changes while others were critical of them. Many commenters wrote that they were generally unsupportive of the weighted average increase; others commented on specific form types. Some commenters wrote about alternative methods to reduce costs and inefficiencies. DHS also received several comments on subjects that are not related to the proposed fees and are outside the scope of the NPRM. With limited exception as explicitly stated below, DHS has not PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 Final fee 585 930 1,130 1,130 200 755 1,020 715 890 1,670 505 380 360 435 405 3,750 615 6,230 595 410 385 600 465 3,750 785 17,795 0 215 250 650 595 330 345 10 600/550 3,035 230 270 700 640 355 555 1,170 165 85 220 85 separately summarized or responded to these comments. B. Relative Amount of Fees Most commenters stated opposition to the fee increases. Some commenters suggested that fee increases would reduce the number of people seeking immigration benefits. Some commenters stated that the proposed fees did not reflect the actual adjudicative workload of particular benefit types. Several commenters stated that proposed fees were too low, but the clear majority stated that the fees were too high. Although DHS summarizes and responds to these concerns in more detail below, it emphasizes that, as an initial matter and as articulated in the NPRM, DHS needs to increase USCIS fees by a weighted average increase of 21 percent to offset growing costs and continue to provide an adequate level of service, as provided by section 286(m) of the INA, 8 U.S.C. 1356(m), which authorizes USCIS to ‘‘ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge.’’ As reflected in this provision, some USCIS fees must exceed the cost of adjudicating the respective benefit types to cover those benefits provided without charge, such as refugee benefits, asylum benefits, and other fee-exempt, feewaived or fee-reduced workloads. Furthermore, as explained in the NPRM, E:\FR\FM\24OCR4.SGM 24OCR4 73296 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES4 ‘‘DHS may reasonably adjust fees based on value judgements and public policy reasons where a rational basis for the methodology is propounded in the rulemaking.’’ See 81 FR 26907. An example is the policy decision to include a fee exemption for individuals who are victims of a severe form of human trafficking and who assist law enforcement in the investigation or prosecution of those acts of trafficking (who may qualify for T visas), and individuals who are victims of certain crimes and are being helpful to the investigation or prosecution of those crimes (who may qualify for U visas). The cost of processing those fee-exempt visas must be recovered through fees charged for other benefit requests. See INA secs. 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). Such a decision would inevitably cause an unsustainable reduction in fee revenue unless DHS spread the cost of the fee exemption among other fee-paying applicants and petitioners. Accordingly, consistent with section 286(m) of the INA, 8 U.S.C. 1356(m), DHS sets fees for other fee-paying applicants and petitioners at a level sufficient to recover the full costs of providing all such services. Similarly, a decision to allow fee waivers for a particular benefit request, or a decision to allow a reduced fee, will also have an impact on other fee-paying applicants and petitioners. For instance, when USCIS determines to hold a fee to a smaller percentage increase than the overall methodology suggests (in this rule, DHS uses an 8 percent weighted average increase for those benefits that it determines should be held to a smaller fee increase 12), there are cascading effects on other fee-paying applicants and petitioners. These feereduced immigration benefit requests may not recover the full cost of their associated workloads or the full cost of their respective fee waivers. The portion of costs that is not recovered is reallocated to other immigration benefit requests. Correspondingly, when DHS sets a fee for a given benefit request at the level 12 In this rule, USCIS applies this increase to a number of benefit types, including the Application for Naturalization, Form N–400; Application for Employment Authorization, Form I–765; and adoption-related applications, Forms I–600/600A/ 800/800A. This smaller increase, which in this rulemaking amounts to 8 percent, is the percentage difference between the current fees and the model output before reallocation, weighted by fee-paying volume. See 81 FR 26915. VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 suggested by the USCIS fee-setting methodology, without further adjustment, the associated immigration benefit request absorbs a portion of the additional costs associated with the immigration benefit requests that are held down to the 8 percent weighted average increase. These fees recover the full cost of their respective fee waivers, plus some of the fee waiver costs for immigration benefit requests that are held down to the 8 percent weighted average increase.13 These fees also recover a greater portion of the cost of fee-exempt services. 1. Proposed Fees Are Too High The largest number of commenters wrote in opposition to the overall increase in fees. Several commenters expressed concern over specific populations (such as families or potential adoptive families) that may be particularly affected by the fee increases. Some commenters believed that a steep increase in fees would result in increased illegal immigration, particularly for individuals who may not be able to afford increased costs associated with existing legal avenues. Some commenters suggested that the increase in fees could discourage certain individuals from attempting to work or ultimately seeking lawful permanent residence resident (LPR) status in the country. As an initial matter, DHS notes that as stated in the NPRM, it attributes 17 percent of the 21 percent weighted average fee increase to the reinstatement of the surcharge needed to sustain current operating levels of RAIO, the SAVE program, and the Office of Citizenship, as well as to account for a projected loss in fee revenue resulting from a significant increase in the number of fee waivers currently received (and which is expected to continue throughout FY 2016/2017). See 81 FR 26911. The remaining 4 percent is needed to recover the cost of sustaining current operating levels and to allow for limited, strategic investments necessary to ensure the agency’s information technology infrastructure is strengthened. Such strengthening is needed to protect against potential cyber intrusions and to build the disaster recovery and back-up capabilities required to effectively deliver on the USCIS mission. See 81 FR 26910. For comparison, the inflation 13 See Appendix Table 4, Cost Reallocation column in the supporting documentation. These figures represent all additional costs, including the cost of forms that are held to the 8 percent weighted average increase based on policy decisions, that USCIS applies to fees to ensure full cost recovery. PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 from July 2010 to July 2016 was 9.5 percent.14 DHS notes that fees do not merely cover the cost of adjudication time. The fees also cover the resources required for intake of immigration benefit requests, customer support, fraud detection, background checks, and administrative requirements.15 DHS also reiterates that any further fee adjustments would be zero-sum. Given the need to recover the full cost of the services provided, a decision reducing the fee burden on one population of beneficiaries will ultimately increase the burden on others. a. Barrier to Family Reunification A number of commenters stated that an increase in fees could potentially prevent family reunification for certain U.S. citizens and lawful permanent residents (LPRs), especially for individuals seeking to reunite with several family members. USCIS understands the importance of facilitating family reunification, as well as the advantages that LPR status and citizenship provide. DHS acknowledges that certain individuals may need to file multiple requests, and thus pay multiple fees, depending on the number of family members they seek to sponsor. Nonetheless, USCIS filing fees are necessary to provide the resources required to do the work associated with such filings. When fees do not fully recover costs, USCIS is unable to maintain sufficient capacity to process requests. Inadequate fees may cause significant delays in immigration request processing, which can result in the burden of longer separation from family members. DHS recognizes that fees impose a burden on fee-paying applicants and beneficiaries, and it takes steps to mitigate that burden as appropriate. Specifically, after USCIS applies its standard fee-setting methodology to identify the Activity-Based Cost (ABC) 16 model output for each benefit 14 The semiannual average consumer price index for all urban consumers (CPI–U) was 217.5 in July 2010 and 238.8 in July 2016. The change in the Index over 9 years was 21.3 or 9.5 percent. See U.S. Department of Labor, Bureau of Labor Statistics, All Urban Consumers (CPI–U) Semiannual Average tables, available at http://www.bls.gov/cpi/cpi_ dr.htm. DHS has not recently adjusted IEFA fees by CPI–U inflation, but provides this figure as a point of comparison. 15 See Appendix Table 5: Activity Unit Costs by Immigration Benefit Request After Cost Reallocation of the supporting documentation. Pages 19–20 define the activities in the appendix table. 16 USCIS uses the ABC model to determine the full cost of processing immigration benefit requests and biometric services. This is the same methodology used in the last four fee reviews and the basis for the current fee structure. The ABC E:\FR\FM\24OCR4.SGM 24OCR4 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations request, USCIS evaluates the model output and determines whether it should be adjusted. DHS is mindful that departures from the standard USCIS feesetting methodology result in lower fees for some and higher fees for others. DHS discusses these adjustments in more detail in the remainder of this preamble, including by reference to certain familybased benefit requests, such as the Petition for Alien Relative, Form I–130. b. Impact on Low-Income Individuals; Low Volume Reallocation sradovich on DSK3GMQ082PROD with RULES4 Several commenters stated that the proposed rule would harm the ability of low-income applicants and petitioners to afford USCIS services. Some of these commenters suggested that the proposed overall fee increase would result in a reduction in overall filings from lowincome applicants and petitioners. Commenters discussed the importance of maintaining an immigration system that is accessible to people at all income levels. DHS is aware of the potential impact of fee increases on low-income individuals and is sympathetic to these concerns. As a result, DHS not only offers fee waivers, but also uses its feesetting discretion to adjust certain immigration benefit request fees that USCIS believes may be overly burdensome on applicants, petitioners, and requestors if set at the recommended model output levels. As discussed in the proposed rule and supporting documentation, and consistent with past practice, USCIS proposed to limit fee adjustments for certain benefit requests to a set percentage increase above current fees. USCIS determined this figure by calculating the average percentage fee increase across all model outputs before cost reallocation. In this rule, that calculated figure is 8 percent. This methodology is referred to as Low Volume Reallocation. The use of Low Volume Reallocation frequently results in lower fees for certain low-income applicants and petitioners, but always results in higher fees for other benefit requests. This is because USCIS relies almost completely on fee revenue to support its operations. DHS is therefore mindful to use low volume reallocation only where compelling circumstances counsel in model is a business management tool that assigns resource costs to operational activities and then to products and/or services. These assignments provide an accurate cost assessment of each major step towards producing the individual outputs of an organization. For additional information on the ABC model, see pages 17–22 of the supporting documentation. VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 favor of shifting costs from one benefit request to others. Nonetheless, as proposed, in this final rule, DHS will continue applying Low Volume Reallocation from the 2010 final rule to the following forms: • Notice of Appeal or Motion, Form I–290B • Petition for Amerasian, Widow(er) or Special Immigrant, Form I–360 • Petition to Classify Orphan as an Immediate Relative, Form I–600, and Application for Advance Processing of an Orphan Petition, Form I–600A • Petition to Classify Convention Adoptee as an Immediate Relative, Form I–800, and Application for Determination of Suitability to Adopt a Child from a Convention Country, Form I–800A • Petition for Qualifying Family Member of a U–1 Nonimmigrant Form I–929 • Application to File Declaration of Intention, Form N–300 • Request for Hearing on a Decision in Naturalization Proceedings, Form N– 336 • Application to Preserve Residence for Naturalization Purposes, Form N– 470 Also as proposed, DHS will apply the same calculated 8 percent weighted average increase to the following benefit types: • Application for Provisional Unlawful Presence Waiver, Form I– 601A • Application for Employment Authorization, Form I–765 • Request for Action on Approved Form I–800A, Form I–800A Supplement 3 DHS believes that the use of Low Volume Reallocation will mitigate the potential burden of this final rule on certain low-income applicants and petitioners.17 DHS intends to continue assessing the affordability of its fees in future fee reviews. This may result in continuing Low Volume Reallocation, otherwise reallocating certain costs, and identifying cost savings. For purposes of this final rule, however, DHS has not materially changed the proposed rule to address the commenters’ stated concerns with the proposed overall fee increase. 2. Comments on Specific Fees and Adjustments While many commenters indicated that they were opposed to the overall increase in fees, some comments 17 DHS has not estimated the overall effect that this final rule will have on filing volume from lowincome applicants. USCIS may consider exploring options to collect and analyze this data in the future. PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 73297 focused on increases to particular forms or to specific groups of applicants, petitioners, or requestors. Those comments are addressed below.18 a. Application for Certificate of Citizenship, Forms N–600/600K In the NPRM, DHS proposed fee increases for the Application for Certificate of Citizenship, Form N–600, and the Application for Citizenship and Issuance of Certificate Under Section 322, Form N–600K. Under the proposed rule, the current $600 fee for applications filed on behalf of biological children would be increased by $570, or 95 percent, to $1,170. The proposed rule also would eliminate the current $50 discount on applications filed on behalf of adopted children, previously codified at 8 CFR 103.7(b)(1)(i)(AAA), thereby effectively increasing fees for such applications by $620, or 103 percent. Id. A number of commenters stated that DHS should reconsider the proposed fee increases. Some commenters requested additional information to explain the increases. Certain commenters who submitted comments through a form letter campaign stated that the proposed increases were troubling considering that USCIS had not reported a significant increase in application volume or processing times. Some commenters stated that the proposed fee increase would result in a significant additional burden for potential adoptive families, who already invest a great deal of time and money in the adoption process. Some stated that Forms N–600 and N–600K should be free or discounted for adopted children, or alternatively maintained at the current fee. A commenter stated that the Department of State (DOS) processes derivative citizens’ requests for passports in substantially the same manner that USCIS processes Forms N– 600 and N–600K, yet DOS only charges $120 for a passport book for a child younger than 16 years of age. Other commenters stated that many adopted children automatically derive U.S. citizenship from their parents when they enter the United States, while other children derive U.S. citizenship when their adoptions are completed.19 Several commenters noted that a passport may be an effective alternative to the certificate for naturalization. 18 DHS addresses the comments on specific immigration benefit requests in approximate order of the number of commenters who submitted comments on that subject. 19 See U.S. Citizenship and Immigration Services, Before Your Child Immigrates to the United States (11/18/2014), available at https://www.uscis.gov/ adoption/your-child-immigrates-united-states. E:\FR\FM\24OCR4.SGM 24OCR4 73298 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES4 As noted previously, USCIS based the proposed fee increase for the Forms N– 600 and N–600K on the results of its comprehensive biennial fee review, a summary of which was available for comment in the docket accompanying the proposed rule. The biennial fee review helps ensure that fees for USCIS services cover the full cost of processing immigration benefits. In the absence of full cost recovery, USCIS would be unable to sustain an adequate level of service, let alone invest in program improvements. DHS recognizes that fees impose a burden on fee-paying applicants and beneficiaries, and takes steps to mitigate that burden as appropriate. Specifically, after DHS applies the standard USCIS methodology to identify the model output for each benefit request, DHS evaluates the model output and determines whether it should be adjusted. In the NPRM, DHS proposed to limit a small number of fees to an 8 percent weighted average increase for one or more of the following three reasons: (1) DHS determined that the combined effect of cost, fee-paying volume, and methodology changes since the previous fee rule would otherwise place an inordinate fee burden on individuals requesting these types of benefits; (2) DHS determined that an adjustment was necessary to promote citizenship and immigrant integration or other policies; or (3) DHS lacked data on which to base an appropriate fee. See 81 FR 26915. For example, DHS proposed to limit to the 8 percent weighted average increase to the Application for Naturalization and the adoption petition and application fees (explained in the sections of this preamble that discuss those requests). DHS is mindful that departures from the standard USCIS fee methodology result in lower fees for some and higher fees for others. DHS is careful to use its fee setting discretion in a way that does not result in unnecessary or unjustifiable burdens for fee-paying applicants and petitioners. Accordingly, the proposed rule (like past fee rules) would have set most fees above cost, in adherence to the fee-setting methodology. The fee for Forms N–600 and N–600K is one of those fees. Setting aside the effect of cost reallocation,20 DHS attributes the 20 At least one commenter indicated that the RAIO surcharge seemed to be a large contributor to the increase in the proposed fee for the Form N– 600. The commenter suggested that the RAIO surcharge should be redistributed to all other forms to reduce the financial burden of the proposed fee increase on adoptive parents. As outlined in the NPRM, Forms N–600 and 600K are not the only forms that recover the cost of RAIO, the SAVE VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 proposed increase to the fee for Forms N–600 and N–600K to a significant increase in the number of fee waivers granted for such forms.21 In the 2010 final rule, DHS assumed that every applicant would pay the fee for Forms N–600 and N–600K. However, the feepaying volume estimate for Forms N– 600 and N–600K decreased from 100 percent in FY 2010/2011 to 67 percent in FY 2016/2017 due to applicants receiving fee waivers. The standard feesetting methodology provides that the costs of waived or exempted fees are to be recovered from fee-paying applicants submitting the same form(s) (in this case, applicants filing Forms N–600 and N–600K).22 See 81 FR 26922. The previous fee for Form N–600 was set under the assumption that 100 percent of filers would pay the fee; as the NPRM explained, however, a third of Form N– 600 filers are receiving fee waivers. These waivers account for a large portion of the costs that must now be addressed through the proposed fee increase. In short, the Form N–600 fee in the proposed rule is the result of consistent application of USCIS’s feesetting methodology. No adjustment was made to the fee calculated under the methodology based on other policy considerations. DHS is setting the fees for several other forms at a level that is less than their projected cost. If DHS similarly limited the fee for an Application for a Certificate of Citizenship, however, it would need to raise other fees to recover these expenses. USCIS estimates that each such instance would increase other fees between $5 and $210, with an average increase of $21. With respect to comments about the potential impact of the proposed fee increase on adoptive families in particular, DHS notes that Forms N–600 and N–600K are not primarily used by adoptive families. USCIS estimates that adopted children represent less than 10 percent of the workload related to Applications for Certificate of Citizenship.23 Although DHS could have established a separate fee for adopted children, the cost of such a departure from the standard fee-setting program, and the Office of Citizenship. USCIS currently distributes these costs to all form types not set below projected cost. See 81 FR 26915. 21 See Appendix Table 4 of the supporting documentation. 22 When DHS holds a fee below cost, the costs that are not covered, including fee waivers, must be paid by other fee paying applicants. Specifically, other immigration benefits whose fees are not held down recover the additional cost. 23 Based on FY 2015 actual revenue data, less than 10 percent of fee-paying applicants for Forms N–600 or N–600K paid the lower fee for adopted children. PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 methodology would be borne by other fee-paying applicants and petitioners.24 Similarly, if DHS set the fee for this benefit request at an equivalent level to the DOS passport fee, DHS would be required to substantially increase other fees to ensure full-cost recovery. DHS agrees with commenters that in many cases, a passport will serve the same purpose as a certificate of citizenship, and for a lower cost to the applicant. Finally, DHS notes that adjudicating a Form N–600 for an adopted child is similar in workload and difficulty to the adjudication of an Application for Certificate of Citizenship for a biological child. There would be no cost-related basis for establishing a separate fee for adopted children. For the reasons stated above, DHS has not revised the proposed fee in this final rule. Under this final rule, the fee for the Application for Certificate of Citizenship, Form N–600, and the Application for Citizenship and Issuance of Certificate Under Section 322, Form N–600K, will be $1,170. b. Adoption, Forms I–600/600A/800/ 800A In the NPRM, DHS proposed to increase the fee for the (1) Petition to Classify Orphan as an Immediate Relative, Form I–600; (2) Application for Advance Processing of an Orphan Petition, Form I–600A; (3) Petition to Classify Convention Adoptee as an Immediate Relative, Form I–800; and (4) Application for Determination of Suitability to Adopt a Child from a Convention Country, Form I–800A. The proposed increase would change the fee for each of these forms from $720 to $775. See proposed 8 CFR 103.7(b)(1)(i)(Y), (Z), (JJ)(2), (KK); 81 FR 26939. DHS proposed to hold the increase for these benefit types (among others) to an 8 percent increase because the combined effect of cost, fee-paying volume, and methodology changes since the last fee rule would otherwise place an inordinate fee burden on individuals 24 DHS will continue its policy of reducing fee burdens on adoptive families in other ways. For instance, DHS will continue to allow fee waivers for the Form N–600. DHS will also continue to cover costs attributable to the adjudication of adoption petitions and applications (Forms I–600/600A/800/ 800A) through the fees collected from other requests. This policy is described in the following section on ‘‘Adoption.’’ Note that in the NPRM, the row for Forms I–600/600A/800/800A was labeled as ‘‘orphan petitions.’’ The term ‘‘orphan’’ only applies to Forms I–600 and Form I–600A. The row includes data for all of the adoption forms. Therefore, DHS changed the label for Forms I–600/ 600A/800/800A from ‘‘orphan petitions’’ to ‘‘adoption petitions and applications’’ in the final rule and in several tables within the supporting documentation. The changes only affect the labels for the rows and do not represent a change in the data or calculations. E:\FR\FM\24OCR4.SGM 24OCR4 sradovich on DSK3GMQ082PROD with RULES4 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations requesting these types of benefits. For example, if DHS did not maintain the proposed fee for the Form I–600, this benefit request would have a fee of at least $2,258. DHS believes it would be contrary to the public interest to impose a fee of this amount on an estimated 15,000 potential adoptive parents each year. Some commenters wrote in opposition to the proposed fee increases associated with intercountry adoptions or stated that DHS should reconsider these fee increases. Commenters wrote that all adoption-related fees should remain at the current level, be lowered, or be waived when adopting children from foster care. Some commenters stated that these fee increases would lead to decreased intercountry adoptions. At least one commenter wrote that adoptive parents were specifically targeted by the proposed fee increases in the NPRM. DHS greatly values its role in intercountry adoptions and places high priority on the accurate and timely processing of immigration applications and petitions that enable U.S. families to provide permanent homes for adopted children from around the world. It also recognizes that the financial costs, both foreign and domestic, involved in intercountry adoptions can have significant impacts on these families. DHS has a history of modifying policies to ease burdens associated with international adoption. Prior to 2007, USCIS required prospective adoptive parents who had not found a suitable child for adoption within 18 months after approval of their Application for Advance Processing of Orphan Petition, Form I–600, to submit a fee with their request to extend their approval. Since 2007, USCIS has permitted adoptive parents to request one extension of their Form I–600 approval without charge, including the biometric fee. See 72 FR 29864; 8 CFR 103.7(b)(1)(i)(Z). Finally, DHS does not charge an additional filing fee for an adoption petition filed on behalf of the first beneficiary child or birth siblings. See 8 CFR 103.7(b)(1)(i)(Z) and 103.7(b)(1)(i)(JJ)(1). DHS also has a history of setting adoption-related fees lower than the amount suggested by the fee-setting methodology. In the 2010 fee rule, the calculated fee for adoption petitions and applications (Forms I–600/I–600A and I–800/I–800A) was $1,455, based on projected costs. See 75 FR 33461; previous 8 CFR 103.7(b)(1)(i)(Y), (Z), (II), (JJ). Instead of using the model output, DHS increased the fee by only $50, to $720. See 75 FR 58972. As noted previously, in the FY 2016/2017 fee VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 review, the model output for the Form I–600 was $2,258.25 Nonetheless, DHS proposed setting fees for adoption petitions at $775. See proposed 8 CFR 103.7(b)(1)(i)(Y), (Z), (JJ), (2), (KK). The $1,483 difference between the model output and the final fee will be recovered from other applications, petitions, and requests. Shifting the adoption petition and application costs to other fees is consistent with past DHS efforts and is in the public interest to support parents of children adopted abroad. DHS recognizes that fees impose a burden on individuals seeking immigration benefits, and it takes steps to mitigate that burden as appropriate. At the same time, DHS must recover the full costs of the services that USCIS provides, or else risk reductions in service quality, including potential delays in processing. In this case, DHS proposed to apply the reduced (8 percent) fee increase to these benefit requests, for the reasons stated previously and consistent with DHS’s practice of holding a number of benefit requests to this reduced fee increase. DHS was mindful that although this departure from the standard fee-setting methodology results in lower fees for adoptive families, it also results in higher fees for others. 81 FR 26915. Any further departure would only heighten the effect on the rest of the fee schedule, and would not be consistent with DHS’s overall fee-setting methodology. DHS is therefore finalizing the fee as proposed. c. Petition for a Nonimmigrant Worker, Form I–129 In the NPRM, DHS proposed to increase the fee for the Petition for a Nonimmigrant Worker, Form I–129, from $325 to $460. See proposed 8 CFR 103.7(b)(1)(i)(I); 81 FR 26937. The proposed fee increase was the result of the application of the standard USCIS fee-setting methodology to this benefit request. Several commenters objected to the proposed fee increase. Most of the comments on this subject were from agricultural groups or farmers who expressed that the new fee would be too expensive for employers that employ H– 2A temporary agricultural workers for seasonal labor. Other commenters objected to the impact that the proposed fee increase would have on performers in the arts. Commenters representing religious organizations also opposed the increase, stating that it would pose a 25 Model output is reflected and further explained in Appendix Table 4: Proposed Fees by Immigration Benefit Request in the supporting documentation. PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 73299 burden to religious workers in small communities. Others submitted comments about processing delays. Some commenters noted that delays in processing Forms I– 129 affect the incomes of farmers and performers. Some commenters stated that DHS’s proposal to increase the Form I–129 fee was undermined by USCIS’ failure to process O and P visa requests within the 14 days allotted by statute for certain petitions. See INA sec. 214(c)(6)(D), 8 U.S.C.1184(c)(6)(D). Commenters stated that any fee increase should be accompanied by improvements in petition processing and policies, particularly as related to H–1B, L–1, O and P visas.26 As noted previously, DHS is authorized to set fees at a level that ensures recovery of the full costs of providing immigration adjudication and naturalization services. Because USCIS relies almost entirely on fee revenue, in the absence of a fee schedule that ensures full cost recovery, USCIS would be unable to sustain an adequate level of service, let alone invest in program improvements. Full cost recovery means not only that fee-paying applicants and petitioners must pay their proportionate share of costs, but also that at least some fee-paying applicants and petitioners must pay a share of the immigration adjudication and naturalization services that DHS provides for vulnerable populations on a fee-exempt, feereduced, or fee-waived basis. DHS is therefore mindful to adhere to the standard USCIS fee-setting methodology as often as possible, and to avoid overuse of DHS’s discretion to eliminate or reduce fees for special groups of beneficiaries. The proposed fee for the Form I–129 resulted from application of the standard USCIS fee-setting methodology, because DHS did not find a compelling reason to shift the burden of the Form I–129 fee increase onto other applicants. Following consideration of the public comments, DHS retains the fee level expressed in the proposed rule. It is possible that in a limited number of cases a reduced fee would be more appropriate, but in the interest of fairness to all applicants and petitioners, as well as in the interest of the administration, this final rule sets a single fee for the Form I–129 at $460, as proposed.27 26 For additional information, see the section entitled, Improve Service and Reduce Inefficiencies. 27 The Regulatory Flexibility Act discussion in the Statutory and Regulatory Requirements section addresses comments regarding the effect of the rule on small entities. As for processing delays, DHS has further addressed the operational and efficiency E:\FR\FM\24OCR4.SGM Continued 24OCR4 73300 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES4 d. Application To Register Permanent Residence or Adjust Status, Form I–485, and Interim Benefits In the NPRM, DHS proposed to continue offering travel document and employment authorization renewals free of charge during the pendency of an Application to Register Permanent Residence or Adjust Status, Form I–485, so long as the applicant filed the application with the appropriate fee on or after July 30, 2007. See 8 CFR 103.7(b)(1)(i)(M) (HH); proposed 8 CFR 103.7(b)(1)(i)(M), (II); 81 FR 26937. The associated forms are the Application for Travel Document, Form I–131, and Application for Employment Authorization, Form I–765. USCIS refers to travel document and employment authorization renewals as ‘‘interim benefits’’ when they are associated with a pending Form I–485. See 81 FR 26918. DHS received several comments from individuals who applied to adjust status before July 30, 2007, and who thus do not qualify for free interim benefits. These commenters stated that their Form I–485 applications have been pending since before July 30, 2007, and that because of the annual numerical visa limits established by Congress, they would likely need to request additional travel document and employment authorization renewals in the future.28 Some commenters stated that it is unfair to charge applicants for interim benefits while they are waiting for visas to become available. Another commenter noted that USCIS has recently started requiring refugees and asylees to pay the required fee associated with the Application for Employment Authorization when concurrently filed with Form I–485. The commenter stated that USCIS had not previously required payment of a fee for such an application. USCIS acknowledges that under current regulations and as proposed, employment-based Form I–485 applicants who filed before July 30, 2007, must continue to pay fees associated with interim benefits. Before the USCIS 2007 fee rule, DHS did not provide free interim benefits, and the Form I–485 fee was calculated without considering the potential costs of providing such benefits. See 75 FR 58968, 58982.29 The 2007 final rule comments in the section of this preamble entitled, ‘‘Improve Service and Reduce Inefficiencies.’’ 28 The U.S. Department of State (DOS) manages the allocation of visa numbers and Congress establishes the annual visa numerical limits. 29 As explained in the 2007 proposed rule, the decision to provide free interim benefits is intended to restructure certain fee arrangements that some perceived as providing disincentives for USCIS to improve efficiency in processing. See 72 FR 4894. VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 increased the Form I–485 fee from $325 to $905, or 178 percent, mostly due to the decision to permit interim benefits without additional fees. 72 FR 29861. Because applicants for adjustment of status who filed before July 30, 2007, paid the lesser amount of $325 when they filed their Form I–485, and because a decision to provide free interim benefits to this population would shift additional costs to other fee-paying applicants and petitioners, DHS has decided to not provide free interim benefits for those pending applicants. USCIS has taken other actions to alleviate the filing burden and fees on those individuals whose applications are still pending due to the lack of available visas. For example, DHS now provides Employment Authorization Documents (EADs) with 2-year validity periods, instead of previously issued 1year periods, which effectively reduces the fee per year.30 In addition, USCIS adopted a policy in December 2010 under which an applicant with a pending Form I–485 that was filed before August 18, 2007, may receive a combination advance parole document and EAD with a 2-year validity period. See Policy Memorandum, Issuance of Advance Parole Employment Authorization Document (Dec. 21, 2010).31 These longer approval periods have alleviated some of the burden described by the commenters. With regard to the comment that USCIS is requiring refugees and asylees to pay for Form I–765 when filing it concurrently with Form I–485, current regulations provide that Form I–765 has no fee if filed in conjunction with a pending or concurrently filed Form I– 485 that was filed with a fee on or after July 30, 2007. See 8 CFR 103.7(b)(1)(i)(M)(4). There is no fee for a refugee who is filing Form I–485. See 8 CFR 103.7(b)(1)(i)(U)(3). Therefore, although USCIS has waived the Form I– 765 fee for the first such application filed by a refugee, a Form I–765 filed by a refugee to renew his or her EAD By bundling the Form I–485 and interim benefit costs, USCIS ensured that an applicant for adjustment of status will pay a single fee and will not pay separate fees for interim benefits, no matter how long the case remains pending. As a result, if USCIS is unable to process the base application within the established processing goals, an applicant who needs to travel or extend his or her employment authorization is not financially disadvantaged by the delay. 30 USCIS may, in its discretion, determine the validity period assigned to any document issued evidencing an individual’s authorization to work in the United States. 8 CFR 274a.12(b). 31 See https://www.uscis.gov/sites/default/files/ USCIS/Laws/Memoranda/2011/April/issuanceadvance-parole.pdf. PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 requires a fee.32 To renew interim benefits, a refugee who is filing a Form I–765 with Form I–485 must pay the Form I–765 fee or submit a Request for Fee Waiver, Form I–912. Similarly, if the refugee’s employment authorization document expires before the Form I–485 is approved, he or she must file Form I– 765 with a fee or request another fee waiver. Contrary to the commenter’s statement, there has been no change in practice on this point. Like almost all other applicants for adjustment of status, asylees are generally required to pay a fee for Form I–485; if they pay this fee, they receive free interim benefits as long as their Form I–485 is pending with USCIS. Asylees may request that both their Form I–485 and Form I–765 fees be waived. See 8 CFR 103.7(c)(3)(viii) & (c)(4)(iii).33 However, if USCIS waives the fee for the initial Form I–485, subsequent Form I–765 filings (for instance, to renew or replace a lost or expired EAD) require a fee or a new fee waiver request.34 Because fee waivers are available, because refugees and asylees are usually not subject to lengthy waiting periods associated with visa availability, and because of the importance of ensuring full-cost recovery, DHS did not find a compelling reason to shift fee burdens onto other fee-paying applicants and petitioners. Accordingly, DHS has not revised this policy in this final rule. Finally, DHS also proposed to increase the separate Form I–485 fee that applies to a child under the age of 14 years who files a Form I–485 concurrently with the application of a parent seeking classification as an immediate relative of a U.S. citizen, a family-sponsored preference immigrant, or a family member accompanying or following to join a spouse or parent. DHS proposed a fee increase from $635 to $750, but did not propose any substantive changes to eligibility for the reduced fee. See 81 FR 26919.35 USCIS received at least one comment requesting that the proposed $750 discounted fee apply to all children under the age of 14 at any time, regardless of whether their Form I–485 32 See Instructions for I–765, Application for Employment Authorization, available at https:// www.uscis.gov/sites/default/files/files/form/i765instr.pdf. 33 Both fee waivers may be requested on one Request for Fee Waiver. See Instructions for Request for Fee Waiver at https://www.uscis.gov/sites/ default/files/files/form/i-912instr.pdf. 34 An asylee in this situation, like all individuals seeking to file a Form I–765, may still apply for a fee waiver. See 8 CFR 103.7(c)(3)(viii). 35 Under the proposed rule and in this final rule, the standard fee for a Form I–485 would increase from $985 to $1,140. E:\FR\FM\24OCR4.SGM 24OCR4 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES4 was filed concurrently with the application of a parent. The commenter noted that such children, like the children who are currently eligible for the reduced Form I–485 fee, cannot work in the United States. DHS proposed that the discounted Form I–485 fee would only be available when the Form I–485 is filed concurrently with the application of a parent seeking classification as an immediate relative of a U.S. citizen, a family-sponsored preference immigrant, or a family member accompanying or following to join a spouse or parent. See proposed 8 CFR 103.7(b)(1)(i)(U)(2); 81 FR 26938. DHS has considered the commenter’s suggestion, but is unable to adopt it. USCIS does not track the completion rates (i.e., adjudication times) for Form I–485 based on the age of the applicant, so the agency does not have data showing a difference in the completion rate correlated to the difference in applicant age. In addition, USCIS does not know the volume of individual Form I–485 filings by children on which to base a separate fee. To set that fee as suggested by the commenter would require deviation from the fee-setting methodology and, as stated previously in this preamble, require the costs for those applications to be shifted to other benefit requests. Therefore, DHS is not expanding the child discount to all children in this final rule. Nevertheless, while the current and proposed provisions limited the reduced fee only to children who are derivative applicants filing the Form I– 485 at the same time as their parent, USCIS has in practice extended the reduced fee provision to all immigrant relative children under the age of 14 who file the Form I–485 at the same time as their parent (i.e., mailed in the same envelope), regardless of whether they are filing as a derivative or a principal applicant. Therefore, to make the regulation text consistent with the form instructions and USCIS practice, this final rule sets the fee for Form I– 485 accordingly. See new 8 CFR 103.7(b)(1)(i)(U)(2). e. Application for Travel Document, Form I–131 In the NPRM, DHS proposed to increase the fee for the Application for Travel Document, Form I–131, from $360 to $575. See proposed 8 CFR 103.7(b)(1)(i)(M); 81 FR 23937. The proposed fee increase was the result of application of the standard fee-setting methodology to this benefit request. Some commenters objected to the proposed increase. Some commenters noted that the forecasted fee-paying VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 volume for Form I–131 has not changed significantly from the 2010 fee rule.36 Additionally, they pointed out that the Form I–131 has one of the shortest completion rates,37 indicating that it is not a relatively complex adjudication.38 Some of these commenters wrote that they have a pending Form I–485 that was filed before July 30, 2007, and that they are thus ineligible for free interim benefits, including being permitted to file Form I–131 without a fee while waiting for an immigrant visa to become available. See previous 8 CFR 103.2(b)(1)(i)(M)(4). Some commenters stated that they have paid the Form I– 131 fee several times while waiting for a visa to become available and that applicants from countries with long visa wait times must renew their travel documents every year, sometimes for multiple family members.39 As noted previously, the proposed fee increase for the Form I–131 was the result of application of the standard USCIS fee-setting methodology to this benefit request. When DHS departs from the standard USCIS fee-setting methodology to reduce fees for one group, fees for other groups (including, in this case, the fee for Form I–131) must be increased to recover full cost. With respect to the Form I–131 in particular, the proposed fee increase was also due in part to USCIS improving its ability to fully account for the costs of this benefit request. The FY 2016/2017 fee review included more complete data on the Application for Travel Document workload than was included in the 2010 final rule. As noted in the supporting documentation, the latest fee review considered the completion rates for work performed by 36 See 75 FR 26923 for overall workload in table 4 and 75 FR 26924 for fee-paying workload in table 5. 37 USCIS completion rates are the average hours per adjudication of an immigration benefit request. Adjudication hours are divided by the number of completions for the same time period to determine an average completion rate. For additional information on completion rates, see Appendix IX—Completion Rates on page 57 of the supporting documentation. 38 See Appendix Table 7: Completion Rates (Projected Adjudication Hours/Completions) on page 58 of the supporting documentation. 39 Some commenters stated DHS should use a validity period of 2 years instead of 1 year when extensions of Form I–131 are approved for this population. As noted earlier in this preamble, however, USCIS may grant an applicant who has a pending Form I–485 and interim benefits, such as advance parole, an employment authorization combination document with a 2-year validity period if the immigrant visa is not currently available. Adjudicator’s Field Manual ch. 55.3, par. (a)(2). These longer approval periods have alleviated some of the burden on applicants with long-pending I–485 applications. PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 73301 International Operations,40 which adjudicates some Applications for Travel Documents, in the overall completion rates for Applications for Travel Documents. This information was not available for the FY 2010/2011 fee review, but it was included in this review to more accurately represent the cost of adjudicating an Application for Travel Document overseas. The proposed fee increase was due in part to USCIS including costs and time from International Operations in the model output for the Applications for Travel Documents fee. Ultimately, the proposed fee for Form I–131 represents its proportion of USCIS operating costs, as dictated by the standard USCIS feesetting methodology. If DHS held the fee for Form I–131 below the amount suggested by the FY 2016/2017 feesetting methodology, then the additional costs would be transferred to other immigration benefit fees. Because DHS did not find a compelling reason to transfer a portion of the Form I–131 fee increase to other applicants, DHS retains the fee proposed in the NPRM. DHS recognizes that this decision will affect different applicants differently; some applicants may file this application just once, while others may file it multiple times. But in the interest of fairness to all applicants and petitioners, as well as in the interest of sound and efficient adjudications, DHS has decided to not create additional levels of fees for the Form I–131. This final rule sets a fee of $575 for the Form I–131, with appropriate exceptions for refugee travel documents, as discussed below. Nevertheless, Form I–131 requests for parole filed on behalf of individuals outside the United States, including humanitarian parole, remain eligible for a fee waiver. 8 CFR 103.7(c)(3)(iv). Finally, at least one commenter questioned why DHS did not propose a new fee for refugee travel documents. As noted in the NPRM, fees for a refugee travel document are set at a level that is consistent with U.S. obligations under Article 28 of the 1951 Convention relating to the Status of Refugees, as incorporated by reference in the 1967 Convention relating to the Status of Refugees. See 81 FR 26917. The fee must remain set at an amount that is consistent with U.S. obligations under Article 28. Therefore, fees for refugee travel documents will remain the same as DOS passport book fees.41 40 See International Operations Cost Allocation on page 26 of the supporting documentation. 41 The Refugee Travel Document fees are the same as the sum of the U.S. passport book application fee E:\FR\FM\24OCR4.SGM Continued 24OCR4 73302 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES4 f. Application for Employment Authorization, Form I–765, and Students In the NPRM, DHS proposed to increase the fee for the Application for Employment Authorization, Form I– 765, from $380 to $410. See proposed 8 CFR 103.7(b)(1)(i)(II); 81 FR 26938. DHS proposed to limit the increase for these benefit types (among others) to 8 percent for humanitarian and practical reasons. Many individuals seeking immigration benefits face financial obstacles and cannot earn money through lawful employment in the United States until they receive an Employment Authorization Document (EAD). 81 FR 26916. At least one commenter objected to the potential effect of the proposed Form I–765 fee increase on foreign students seeking work authorization under the Optional Practical Training (OPT) program. The OPT program allows an F–1 nonimmigrant student to file a Form I–765 to request authorization to work in the United States in a position that is directly related to the F–1 student’s major area of study. See 8 CFR 214.2(f)(10)(ii)(C). OPT provides F–1 students with an opportunity to apply knowledge gained in the classroom to practical work experience off campus. DHS places a high value on its role in attracting international students and scholars to the United States. Among other things, the contributions to U.S. educational institutions provided by a diverse international student body are invaluable. In recognition of these goals, USCIS devotes many resources to delivering immigration benefits to deserving students, including expending substantial resources, which DHS must recover, to adjudicate their eligibility for EADs. In addition, DHS limited the proposed EAD fee increase in a manner consistent with a number of other fees. See 81 FR 26916. Moreover, F–1 students may request fee waivers in cases in which they are unable to afford the fee. In other cases, USCIS will continue to charge the full fee based on the effort and resources expended to process this benefit. This final rule therefore sets the fee at $410, as proposed. See new 8 CFR 103.7(b)(1)(i)(II). g. Application for Replacement Naturalization/Citizenship Certificate, Form N–565 In the NPRM, DHS proposed to increase the fee for the Application for plus the additional execution fee that the Department of State charges for first-time applicants. VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 Replacement Naturalization/Citizenship Certificate, Form N–565, from $345 to $555, or 61 percent. The proposed fee increase was the result of application of the standard fee-setting methodology to this benefit request. Commenters mentioned that some people could lose proof of citizenship or naturalization due to unforeseen circumstances, such as natural disasters or theft, and that a steep increase might make it more difficult for certain individuals to obtain replacement documents. Other commenters noted that citizens may need a certificate of naturalization or citizenship due to a name change. Commenters stated that the more prohibitively expensive it becomes for foreign-born U.S. citizens to replace documentation of their citizenship, the more difficult it will be for them to work, vote, or pursue other opportunities. Commenters noted that the completion rate for Form N–565 increased significantly since the 2010 final rule. Some commenters compared the completion rate for Form N–565 to that of the Application to Replace Permanent Resident Card, Form I–90, and stated that the two adjudications should be similar. Those commenters noted that the completion rate for Form I–90 decreased since the 2010 final rule, while the Form N–565 completion rate increased by 64 percent. Some commenters stated that USCIS should further assess why the completion rate for Form N–565 increased to this degree. DHS acknowledges that the Form N– 565 adjudication time has increased over the years, and attributes this increase to the amount of research and review necessary to adjudicate these filings. Form N–565 adjudications require USCIS to fully review A-Files for security check purposes, including discovering name variations or aliases. To verify the naturalization of an applicant, USCIS officers must research all available systems. Yet many filings involve individuals who were naturalized decades ago and whose information is not contained in electronic systems, thus requiring extensive paper-based review. USCIS officers may also have to communicate with the National Archives and Records Administration or the Federal courts to obtain evidence supporting naturalization. In some cases, paper files must be transferred to a field office to conduct an interview of the applicant. Changes in name, marital status, gender, or other facts require evidentiary review to support requested changes in USCIS records. No filing fee is required in cases where the Form N–565 is filed to request correction of a certificate that PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 contains an error, but even such filings require that USCIS fully review the relevant A-Files. DHS further notes that the processing of Form N–565 often requires the same use of time and resources by USCIS regardless of the basis for the request. Moreover, the fee for Form I–90 differs from the fee for Form N–565 because the adjudication of the two forms differs. LPRs typically apply for new permanent resident cards every 10 years. Their information is thus generally up-to-date and readily available in an electronic system, thus eliminating the need for full A-File reviews when adjudicating Forms I–90. In addition, Form I–90 adjudication is streamlined and partially automated because the application exists in an electronic environment. Filings that involve information that is up-to-date and available in an electronic system generally require less processing time than filings that require review of physical records or multiple systems, or that require the entry of new data. As noted, the proposed fee for Form N–565 resulted from application of the standard USCIS fee-setting methodology. Because DHS did not find a compelling reason to shift the burden of the Form N–565 fee increase onto other applicants, DHS retains the position expressed in the proposed rule. This final rule sets the fee for Form N– 565 at $555, as proposed. Applicants who cannot pay the fee may request a fee waiver. 8 CFR 103.7(c)(3)(xv). h. Petition for Alien Relative, Form I– 130 In the NPRM, DHS proposed to increase the fee for the Petition for Alien Relative, Form I–130, from $420 to $535. See proposed 8 CFR 103.7(b)(1)(i)(L); 81 FR 26937. The proposed fee increase was the result of application of the standard USCIS feesetting methodology to this benefit request. Several commenters stated that they generally opposed the proposed increase in the Form I–130 fee because the increase, along with other proposed increases, would result in a significant financial burden for certain individuals, especially for low-income immigrants and their families. Some commenters asserted that the proposed increase of $115 would be disproportionate to the current adjudication time of 45 minutes. Another commenter suggested that fees be higher for businesses in order to offset the cost for family-based applicants. The same commenter referenced existing additional fees for H–1B visas and asserted that DHS should increase fees for O and P visas E:\FR\FM\24OCR4.SGM 24OCR4 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES4 to offset the cost of, and reduce the fees for, family-based immigration benefit requests. One commenter noted that Form I–130 filings are not eligible for fee waivers. DHS appreciates the concerns of commenters, but reiterates that because USCIS is funded almost exclusively by fees, it sets the USCIS fee schedule based on a full cost recovery model. This means that although there is a relationship between the proposed fee and the projected adjudication time of 45 minutes, DHS cannot set fees at a level that would only recover costs for an individual adjudicator’s time. In order for USCIS to continue to fulfill its mission, DHS must set fees at a level that accounts for the total resources required for intake of immigration benefit requests, customer support, fraud detection, background checks, and administration. Moreover, because DHS provides some immigration adjudication and naturalization services (including for families) on a fee-exempt, feereduced, or fee-waived basis, fee-paying applicants and petitioners must at times pay more than their directly attributable share of costs. In the case of the Form I–130, the primary reason for the proposed fee increase was the increase in USCIS’ cost baseline for FY 2016/2017, and specifically the need to cover the costs of certain fee-exempt services. As noted in the NPRM and in this final rule, the FY 2016/2017 fee schedule adjusts fees to recover the costs related to RAIO, the SAVE program, and the Office of Citizenship. See 81 FR 26910. In the FY 2010/2011 fee review, the model output for Form I–130 was approximately $368 before cost reallocation. Cost reallocation was smaller in the FY 2010/ 2011 fee review because USCIS assumed that appropriations would recover surcharges related to RAIO, the SAVE program, and the Office of Citizenship. In the FY 2016/2017 fee review, the model output for Form I–130, before cost reallocation, was approximately $383.42 As mentioned in the NPRM, in the FY 2016/2017 fee review, USCIS included RAIO, the SAVE program, and the Office of Citizenship in the cost baseline. As shown in the supporting documentation, the fee includes $152 above the model output to ensure that IEFA fees recover full cost.43 The $152 42 Projected cost refers to the model output column of Appendix Table 4: Proposed Fees by Immigration Benefit Request in the supporting documentation. 43 The amount here is the difference between the Model Output and the final fee. Amounts shown in Appendix Table 4: Proposed Fees by Immigration Benefit Request in the supporting documentation are rounded to the nearest dollar and all IEFA fees VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 provides revenue for services that do not otherwise generate revenue (e.g., refugee, asylum, and fee-waived workloads) and for forms that are held to the 8 percent weighted average increase based on policy decisions (e.g., forms N–400 and I–600/600A/800/ 800A). DHS recognizes the burden that proposed fee increases impose on families and low-income individuals, and takes steps to mitigate that burden as appropriate. Specifically, after USCIS applies its standard fee-setting methodology to identify the model output for each benefit request, USCIS evaluates the model output and determines whether it should be adjusted. However, downward adjustments for some groups result in upward adjustments for other groups. There are many benefit requests that are used by families and low-income individuals, and it would be unsustainable and arguably unfair for USCIS to consistently shift the costs of all such requests to a completely unrelated subgroup of business immigration applicants and petitioners. With that context in mind, and following review of the public comments received, DHS has determined that the amount recommended under the fee-setting methodology was not inordinately high. Thus, DHS is adjusting the fee for Form I–130 in this final rule, as proposed. Moreover, as stated in the ‘‘Fee Waivers and Exemptions’’ section of this preamble, fee waivers are not provided for forms, such as Form I–130, that require petitioners to have the ability to support their intended beneficiary. DHS believes that this is sound overall policy, especially in light of the effects of fee waivers on the fees paid by other applicants and petitioners. i. Application To Replace Permanent Resident Card, Form I–90 In the NPRM, DHS proposed to increase the fee for the Application to Replace Permanent Resident Card, Form I–90, from $365 to $455. See proposed 8 CFR 103.7(b)(1)(i)(G); 81 FR 26937. The proposed fee increase was the result of application of the standard USCIS fee-setting methodology to this benefit request. A number of commenters objected to the proposed fee increase. Some commenters stated that the proposed fee was unjustified by the projected completion rate of 13 minutes. The are rounded to the nearest $5 increment. The sum of the Model Output and the Cost Reallocation columns may not equal the proposed fee because of rounding. PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 73303 commenters noted that although the proposed fee represents a significant increase, the projected completion rate had decreased slightly since the 2010 final rule. A commenter stated that the proposed increase would impose an unreasonable burden on many lowincome applicants, especially when the reason for application may be out of their control, such as owning a prior edition of the card, expiration of the card between the individual’s 14th and 16th birthday, a name change, or a change in commuter status. Some commenters stated that USCIS guidance advises naturalization applicants to file Form I–90 if their permanent resident cards will expire within six months of the filing of their naturalization applications, and that USCIS sometimes requires naturalization applicants to file Form I– 90 before completion of the Form N–400 adjudication. These commenters suggested that as a result, some applicants may file a Form I–90 and a Form N–400 in quick succession, and that DHS should reduce the combined fee burden for these two forms. The commenters suggested that DHS provide a discounted or partial fee for naturalization applicants who are required to file Form I–90. As noted elsewhere in this preamble, because USCIS is funded almost exclusively by fees, DHS sets the USCIS fee schedule based on a full cost recovery model. This means that although there is a relationship between the proposed fee and the projected adjudication time of 13 minutes, DHS cannot set fees at a level that would only recover costs for an individual adjudicator’s time. In order for USCIS to continue to fulfill its mission, DHS must set fees at a level that accounts for the total resources required for intake of immigration benefit requests, customer support, fraud detection, background checks, and administration. Moreover, because DHS provides some immigration adjudication and naturalization services on a fee-exempt, fee-reduced, or fee-waived basis, feepaying applicants and petitioners must pay more than their directly attributable share of costs. In the case of the Form I–90, the primary reason for the proposed fee increase is the increase in the USCIS cost baseline for FY 2016/2017, and specifically the need to cover the costs of certain fee-exempt services. As noted in the NPRM and this final rule, the FY 2016/2017 fee schedule recovers costs related to RAIO, the SAVE program, and the Office of Citizenship. See 81 FR 26910. In the FY 2010/2011 fee review, the model output fee for Form I–90 was E:\FR\FM\24OCR4.SGM 24OCR4 73304 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES4 approximately $321 before cost reallocation. Cost reallocation was smaller in the FY 2010/2011 fee review, because USCIS assumed appropriations that would recover the costs for RAIO, the SAVE program, and the Office of Citizenship. In the FY 2016/2017 fee review, the model output fee for Form I–90 was approximately $326, also before cost reallocation.44 But, as mentioned in the NPRM, USCIS included the above mentioned programs in cost reallocation to recover the full cost of those programs. As shown in the supporting documentation, the fee is $129 above the model output fee to ensure that IEFA fees recover full cost.45 The $129 provides revenue for services that do not otherwise generate revenue (e.g., refugee, asylum, and fee-waived workloads) and for request types that are held to the 8 percent weighted average increase based on policy decisions (e.g., Forms N–400 and I–600/ 600A/800/800A). DHS recognizes that the proposed Form I–90 fee increase would impose an additional cost burden on filers. But the proposed fee increase results from application of the standard USCIS feesetting methodology, and a downward adjustment favoring all Form I–90 filers, or a subgroup thereof, would result in upward adjustment of other fees. DHS has decided to impose this fee at the level dictated by the standard USCIS fee-setting methodology, as proposed. If applicants cannot afford to pay the increased Form I–90 fee, they may request a fee waiver. 8 CFR 103.7(c)(3)(ii). With respect to the comments concerning naturalization applicants who are required to file a Form I–90 if their permanent resident card will expire within six months of filing the naturalization application, DHS notes that this is not a change in practice. LPRs are required to have valid, unexpired Permanent Resident Cards, Forms I–551, in their possession at all times, see INA sec. 264(e), 8 U.S.C. 1304(e), and DHS regulations require LPRs to file Form I–90 when those cards are set to expire in six months, see 8 CFR 264.5(b)(2). For this reason, an LPR with fewer than six months remaining on his or her permanent resident card must generally file Form I–90, with fee, 44 See Appendix Table 4: Proposed Fees by Immigration Benefit Request in the supporting documentation. 45 Amounts shown in Appendix Table 4: Proposed Fees by Immigration Benefit Request in the supporting documentation are rounded to the nearest dollar and all IEFA fees are rounded to the nearest $5 increment. The sum of the Model Output and the Cost Reallocation columns may not equal the proposed fee because of rounding. VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 even if the LPR has applied for naturalization.46 In other words, applying for naturalization does not eliminate the need to file Form I–90 when a permanent resident card is about to expire. If Form I–90 is properly filed, or if Form N–400 is filed at least six months before the expiration of the applicant’s permanent resident card, the applicant can request an Alien Documentation Identification and Telecommunication (ADIT) stamp in lieu of filing for a new card. DHS observes that a permanent resident card generally does not expire until 10 years after it is received by the LPR. For individuals who are familiar with the regulatory requirements,47 this should be sufficient time for the applicant to take appropriate action, including renewing the card or naturalizing before the card expires.48 Generally, LPRs become eligible to naturalize after 5 years of obtaining LPR status, see, e.g., 8 CFR 316.2(a)(3), and the average processing time for an application for naturalization is approximately 6 months. Therefore, individuals who receive LPR status have ample time during which they may save for fees, gather documents, and apply for naturalization before their permanent resident card expires. Moreover, creating a new process and discounted fee for those Form I–90 applicants who wish to naturalize would increase the administrative burden of administering both Form I–90 and Form N–400. For the reasons stated above, this final rule sets the Form I–90 fee at $455, as proposed, regardless of whether the applicant will also file Form N–400 in the near term. j. Genealogy, Forms G–1041/1041A In the NPRM, DHS proposed to increase fees for the Genealogy Index Search Request, Form G–1041, and Genealogy Records Request, Form G– 1041A, from $20 or $35, depending on the format requested, to a single fee of 46 For additional information, see https:// www.uscis.gov/i-90 and https://www.uscis.gov/ green-card/after-green-card-granted/renew-greencard. 47 USCIS also provides educational products and resources to welcome immigrants, promote English language learning, educate on rights and responsibilities of citizenship, and prepare immigrants for naturalization and civic participation. In addition, USCIS provides grants, materials and technical assistance to organizations that prepare immigrants for citizenship. The USCIS Citizenship Resource Center helps users better understand the citizenship process and gain the necessary skills required to be successful during the naturalization interview and test. See https:// www.uscis.gov/us-citizenship/naturalization-test/ applicant-performance-naturalization-test/usciscitizenship-education-resources-and-initiatives. 48 See https://www.uscis.gov/green-card/aftergreen-card-granted/renew-green-card. PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 $65. See proposed 8 CFR 103.7(b)(1)(i)(E)–(F); 81 FR 23967. As noted in the NPRM, DHS based the proposed fee increase on the ABC model output fee of $46 for genealogy services, as well as an additional $19 to recover the applicable administrative costs associated with funding these services, such as the USCIS Librarian and other genealogy research and information services. 81 FR 26919 (citing INA sec. 286(t)(1), 8 U.S.C. 1356(t)(1)). Some commenters objected to the proposed fee increase. Some of these commenters compared the genealogy fees to state and local government fees for copies of vital records. Some commenters stated that the quality and efficiency of genealogy services were insufficient to justify the proposed fee increase.49 USCIS does not receive any appropriations for its genealogy program and thus depends on genealogy fees to cover costs, without increasing other immigration and naturalization fees to support this work. Genealogy fees have not been adjusted since USCIS created the program in 2008,50 and such fees are currently insufficient to cover the full costs of the genealogy program. USCIS created the Genealogy Program to serve people performing genealogy research, including historical researchers, genealogists, and other members of the public, without diverting resources from the significant number of Freedom of Information Act requests to which USCIS must respond.51 USCIS thus proposed to increase the fee to meet the full costs of the program and permit USCIS to respond to requests for such historical records and materials. Notwithstanding the fees charged by other government agencies, which likely face different operational and funding challenges, USCIS must ensure that it has sufficient funding to fulfill its mission. Following consideration of the comments on this subject, DHS has decided to set the final fee at $65, as proposed. 49 At least one commenter questioned why USCIS proposed to collect the biometric services fee for the genealogy workload. While DHS is revising 8 CFR 103.2(b)(9) to clarify that any individual filing a benefit request, or any beneficiary of such a request, may be required to appear for biometric collection and pay the biometric services fee, DHS did not propose to and will not collect the biometric services fee for genealogy searches or document requests. See 81 FR 26917. 50 See 81 FR 26919; Final Rule, Establishment of a Genealogy Program, 73 FR 28026 (May 15, 2008). 51 Prior to the establishment of the Genealogy Program, genealogy researchers used the Freedom of Information Act process to conduct their research. E:\FR\FM\24OCR4.SGM 24OCR4 sradovich on DSK3GMQ082PROD with RULES4 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations k. Petition To Remove Conditions on Residence, Form I–751 In the NPRM, DHS proposed to increase the fee for the Petition to Remove Conditions on Residence, Form I–751, from $505 to $595. Proposed 8 CFR 103.7(b)(1)(i)(HH); 81 FR 23968. The proposed fee increase was the result of application of the standard USCIS fee methodology to this benefit request. Some commenters objected to the proposed fee increase. These commenters stated that Form I–751 is required for people who were granted conditional permanent residence through marriage, including spouses of U.S. citizens and their children, to remove the conditions on their status. The commenters asserted that the new fee is so burdensome that some applicants may miss their deadline to apply, putting those applicants at risk of losing their residency and becoming subject to removal from the United States. A commenter stated that in 2010, DHS increased the I–751 filing fee by $40. The commenter stated that to now increase it again by another $90 is unjustified, particularly when USCIS estimates that its projected workload volume for Form I–751 will decrease by 10,000 receipts from 2010/2011 levels. The commenter stated that if I–751 workloads will decrease, there is no justification for an 18 percent fee increase. As noted previously in this preamble, because USCIS operates almost exclusively on fees, DHS sets the USCIS fee schedule based on a standard full cost recovery model. This means that DHS must account for more than just projected total receipts when setting the fee for a given benefit. For instance, DHS must account for the likelihood of fee waivers by setting fees based on projected total fee-paying receipts, not just projected total receipts. And DHS must also account for the costs associated with adjudicating each benefit request. If DHS did not account for fee waivers when setting fees, or for the cost of adjudicating benefit requests, DHS would not recover sufficient revenue to cover the cost of the services that DHS provides. Moreover, because DHS provides some immigration adjudication and naturalization services on a fee-exempt, fee-reduced, or feewaived basis, fee-paying applicants and petitioners must pay more than their directly attributable share of costs. In addition, in the case of the Form I– 751 specifically, although workload volume decreased 5.5 percent since the 2010 final rule, fee-paying volume decreased at a greater rate of 8.4 percent. Moreover, the completion rate, or the VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 average hours per adjudication, increased 39 percent since the 2010 final rule. Given that fewer fee-paying applicants are now absorbing the increased costs associated with longer adjudications, DHS believes the proposed $90 increase since the fee was last set six years ago is reasonable. Although the proposed increase would impose an additional cost burden on filers, it results from application of the standard USCIS fee methodology. A downward adjustment in favor of Form I–751 petitioners would result in upward adjustment of other fees. Furthermore, if the petitioner cannot pay the fee, they may request that the fee be waived. See 8 CFR 103.7(c)(3)(vii). Therefore, this final rule sets the Form I–751 fee at $595, as proposed. ´ l. Petition for Alien fianc&eacute;(e), Form I– 129F In the NPRM, DHS proposed to increase the fee for the Petition for Alien ´ fianc&eacute;(e), Form I–129F, from to $340 to $535. See proposed 8 CFR 103.7(b)(1)(i)(K); 81 FR 23967. The proposed fee increase was the result of application of the standard USCIS fee methodology to this benefit request. Some commenters objected to the proposed fee increase, stating that it could discourage family reunification. The commenters stated that the increase would be particularly burdensome because there is no fee waiver option when filing this form. As noted previously, DHS is authorized to set fees at a level that ensures recovery of the full costs of providing immigration adjudication and naturalization services. Because USCIS relies almost entirely on fee revenue, in the absence of a fee schedule that ensures full cost recovery, USCIS would be unable to sustain an adequate level of service, let alone invest in program improvements. Full cost recovery means not only that fee-paying applicants and petitioners must pay their proportionate share of costs, but also that at least some fee-paying applicants and petitioners must pay a share of the immigration adjudication and naturalization services that DHS provides on a fee-exempt, feereduced, or fee-waived basis. DHS is therefore mindful to adhere to the standard USCIS fee methodology as often as possible, and to avoid overuse of DHS’s discretion to eliminate or reduce fees for special groups of beneficiaries. The proposed fee for the Form I–129F resulted from application of the standard USCIS fee methodology. DHS values its role in assisting U.S. citizens who wish to bring a foreign national PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 73305 ´ fianc&eacute;(e) to the United States to marry, and is sensitive to the extra burden that the increased filing fee may impose. But if USCIS were to waive or exempt Form I–129F fees, then other applicants, petitioners, and requestors would pay higher fees to cover the cost. Because DHS did not find a compelling reason to shift the burden of the Form I–129F fee increase onto other applicants, this final rule sets the Form I–129F fee at $535, as proposed. Moreover, as a general matter, DHS does not waive fees for petitions that require the beneficiaries to demonstrate that they will be able to support themselves financially, or that require the filing of an affidavit of support. A citizen who files Form I–129F must document his or her ability to financially support his or her foreign ´ national fianc&eacute;(e). Because a few waiver options would be inconsistent with this financial support requirement, DHS declines to allow fee waivers for this form. m. Petition for Amerasian, Widow(er), or Special Immigrant, Form I–360 In the NPRM, DHS proposed to increase the fee for the Petition for Amerasian, Widow(er), or Special Immigrant, Form I–360, from $405 to $435. Proposed 8 CFR 103.7(b)(1)(i)(T); 81 FR 23968. DHS proposed to hold the increase for these benefit types to an 8 percent increase 52 because the combined effect of cost, fee-paying volume, and methodology changes since the last fee rule would otherwise place an inordinate fee burden on individuals requesting these types of benefits. See 81 FR 26915. Some commenters objected to the proposed fee increase because of its potential effect on religious workers. The commenters stated that religious workers must file additional forms and pay the required fees to obtain LPR status. The commenters noted that these workers benefit the United States by becoming integral parts of their religious ministries, participating in community outreach, and making specific connections with immigrants who speak the same language. For these reasons, the commenters requested that the agency not finalize the proposed fee increase. Form I–360 may be used to obtain any of a large number of immigration benefits, some of which allow petitioners to file the form on a feeexempt basis.53 Many petitioners may 52 The proposed increase was 7.4 percent due to rounding. 53 See https://www.uscis.gov/i-360. E:\FR\FM\24OCR4.SGM 24OCR4 73306 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations use the Form I–360 on a fee-exempt basis. For example, there is no fee for a petitioner seeking classification as an Amerasian; an individual selfpetitioning as a battered or abused spouse, parent, or child of a United States citizen or LPR; a petitioner seeking Special Immigrant Juvenile status; or an Iraqi or Afghan national who worked for, or on behalf of, the U.S. Government in Iraq or Afghanistan. Previous 8 CFR 103.7(b)(1)(i)(T)(1)–(4). For those petitioners who are not feeexempt, DHS recognizes that fee increases impose a burden, and DHS takes steps to mitigate such burdens as appropriate. At the same time, DHS must recover the full costs of the services that USCIS provides, or else risk reductions in service quality. In this case, DHS proposed to apply the reduced fee increase (8 percent) to the Form I–360, for the reasons stated previously and consistent with DHS’s practice of holding a number of benefit requests to this reduced fee increase. DHS was mindful that this departure from the standard fee methodology would also result in higher fees for others. See 81 FR 26915. Although DHS acknowledges the importance of the religious worker program to many communities, any further departure would only heighten the effect on the rest of the fee schedule, and would not be consistent with DHS’s overall fee methodology. In addition, unlike many of the fee-exempt Form I–360 petitioners, religious workers fall into the category of employment-based immigrants for whom petitioners must demonstrate the ability to pay a salary. See, e.g., 8 CFR 204.5(g)(2) (requiring a petition which requires an offer of employment to be accompanied by evidence that the prospective United States employer has the ability to pay the proffered wage). This final rule therefore sets the fee for Form I–360 at $435, as proposed. sradovich on DSK3GMQ082PROD with RULES4 n. Notice of Appeal or Motion, Form I– 290B DHS proposed to increase the fee for the Notice of Appeal or Motion, Form I– 290B, from to $630 to $675. Proposed 8 CFR 103.7(b)(1)(i)(S); 81 FR 26938. DHS proposed to hold the increase for these benefit types to 8 percent 54 because the combined effect of cost, fee-paying volume, and methodology changes since the last fee rule would otherwise place an inordinate fee burden on the particular individuals requesting these types of benefits. See 81 FR 26915. 54 The proposed increase was 7.1 percent due to rounding. VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 Some commenters objected to the proposed fee increase. Commenters stated that the resulting fee, though waivable,55 could hinder individuals from receiving benefits for which they are eligible. The commenters noted that the time involved in submitting fee waiver requests jeopardized the chance of meeting the 30-day filing deadline for appeals. Commenters also expressed disappointment in the appeals process in general, opining that it was particularly burdensome for those attempting to rectify USCIS errors. Commenters also stated that USCIS should allow credit card payments for filing Form I–290B. DHS appreciates the concerns of the commenters and does not intend to hinder individuals from receiving benefits for which they are eligible. At the same time, DHS must recover the full costs of the services that USCIS provides, or else risk reductions in service quality. In this case, DHS proposed to apply the reduced fee increase (8 percent) to these benefit requests, for the reasons stated previously and consistent with DHS’s practice of holding a number of benefit requests to this reduced fee increase. DHS was mindful that although this departure from the standard fee methodology would result in lower fees for Form I–290B filers, it would also results in higher fees for others. 81 FR 26915. Any further departure would only increase the effect on the rest of the fee schedule, and would not be consistent with DHS’s overall fee methodology. DHS addresses requests for service quality improvements and credit card payments later in this preamble. DHS has made no changes to the fee in this final rule as a result of these comments, and is finalizing the Form I–290B fee at $675, as proposed. o. Application for Civil Surgeon Designation, Form I–910 In the NPRM, DHS proposed to increase the fee for the Application for Civil Surgeon Designation, Form I–910, from $615 to $785. See proposed 8 CFR 103.7(b)(1)(i)(TT); 81 FR 26939. Form I– 910 is used to request recognition of a physician as a civil surgeon for purposes of performing mandatory medical examinations on intending 55 If the Form I–290B is being filed to appeal or reopen the denial of an immigration benefit request that is exempt or where a fee has been waived, the Form I–290B fee may also be waived by USCIS if the applicant or petitioner demonstrates that he or she is unable to pay the fee. 8 CFR 103.7(c)(3)(vi) and 103.7(c)(1)(iii). Further, there is no fee for Form I–290B when an Iraqi or Afghan national who worked for, or on behalf of, the U.S. Government in Iraq or Afghanistan appeals a denial of a petition for a special immigrant visa. 8 CFR 103.7(b)(1)(i)(S). PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 immigrants to determine whether they are inadmissible based on health-related grounds. See 8 CFR 232.2(b). The proposed fee increase was the result of application of the standard USCIS fee methodology to this benefit request. At least one commenter stated that the proposed increase may have a chilling effect on requests from physicians to become approved civil surgeons. The commenter suggested the possibility of employing a tiered-fee structure, in which USCIS would offer a lower application fee in exchange for a physician’s commitment to discount fees for vulnerable children and youth and other indigent applicants. As noted, the proposed fee increase for the Form I–910 was the result of application of the standard USCIS fee methodology to this benefit request. When DHS departs from the standard USCIS fee methodology to reduce fees for one group, fees for other groups increase to recover full cost. With respect to the proposal to establish a tiered fee structure for the application, implementing such fees would require eligibility and evidentiary requirements for each fee and income level established. This would add administrative complexity, and further increase costs. Additionally, USCIS would not know whether such civil surgeons complied with their commitments to charge lower fees without regulating and monitoring those civil surgeons, and incurring the time and costs to do so. Accordingly, no changes were made in this final rule, which sets the Form I–910 fee at $785, as proposed. p. Application for Advance Permission To Enter as a Nonimmigrant, Form I– 192, and Application for Waiver of Passport and/or Visa, Form I–193 In the NPRM, DHS proposed to increase the fee for the Application for Advance Permission to Enter as a Nonimmigrant, Form I–192, and Application for Waiver of Passport and/ or Visa, Form I–193, from $585 to $930. See proposed 8 CFR 103.7(b)(1)(i)(P); 81 FR 26938. The proposed fee increase was the result of application of the standard USCIS fee methodology to this benefit request. In the FY 2016/2017 fee review, USCIS grouped these benefit requests with other similar benefit requests, specifically, Forms I–191, I– 212, I–601, and I–612. One commenter stated that for certain filers, CBP, and not USCIS, adjudicates the benefit request.56 The commenter stated that it would be unfair to increase 56 The commenter acknowledged that USCIS adjudicates Form I–192 for T and U nonimmigrants. E:\FR\FM\24OCR4.SGM 24OCR4 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations the fee for Form I–192 applications adjudicated by CBP, because those adjudications do not increase USCIS costs.57 The commenter stated that the proposed increase in the fee for Form I– 192 would burden Canadian and Bermudan nonimmigrant waiver applicants in particular, because unlike other nonimmigrant waiver applicants who submit their applications at the same time as visa applications at no additional charge, Canadians and Bermudans do not require a visa to enter the United States, and thus pay the full filing fee to submit the waiver application. The commenter stated that an increase in the filing fee will hurt local economies in border towns because ‘‘every dollar spent on a waiver application is a dollar not spent on tourism or retail.’’ The commenter did not provide further data or analysis on the potential impact of the proposed fee increase on such economies. In response to this comment, DHS is not implementing the fee increase proposed in the NPRM with respect to those Forms I–192 filed with and processed by CBP, and all Forms I–193. CBP uses the fee revenue from these forms to defray its own costs related to such processing. The FY 2016/2017 fee review and resulting proposed fee change was based on USCIS’s costs for processing inadmissibility waivers. Therefore, under this final rule, DHS adjusts only the fee for those Forms I– 192 filed with and processed by USCIS. Consequently, Form I–192 will have two fees—$585 for those filed with CBP and $930 for those filed with USCIS. New 8 CFR 103.7(b)(1)(i)(P). All filings of Form I–193 are processed by CBP and thus DHS will also not adjust the current $585 fee. New 8 CFR 103.7(b)(1)(i)(Q). sradovich on DSK3GMQ082PROD with RULES4 C. Fee Waivers and Exemptions DHS proposed no changes to the USCIS fee waiver policies in the NPRM. DHS noted, however, that the lost revenue from fee waivers and exemptions has increased markedly, from $191 million in the FY 2010/2011 fee review to $613 million in the FY 2016/2017 Fee Review. DHS also explained the fee waiver process. See 81 FR 26922. DHS received a number of comments on its fee waiver and exemption policies. Some commenters on this subject requested that DHS permit fee waivers for additional immigration benefit requests. Others asked that DHS make more requests exempt from fee requirements. 57 The commenter did not mention Form I–193 applications, but such applications are similarly affected by this rulemaking. VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 Applicants, petitioners, and requestors who pay a fee cover the cost of processing requests that are feewaived or fee-exempt. Id.58 While a number of commenters suggested that USCIS expand the range of applications and petitions for which USCIS would consider a fee waiver, none provided a compelling argument for why a particular form that is not eligible for fee waivers should be made eligible in this final rule. For example, one commenter recommended that USCIS make fee waivers available for all applications. DHS recognizes that some applicants cannot pay filing fees, and has established a fee waiver process for certain forms and benefit types. USCIS carefully considers the merits of each fee waiver request before making a decision. Expansion of fee waiver policy to include all immigration benefit request fees would significantly increase administrative and adjudicative costs. Although DHS recognizes that filing fees impose a heavy burden on people of limited financial means, the costs of allowing fee waivers across the board would be borne by all other fee payers, because the cost of providing services with a discount or without a fee must be transferred to those who pay a full fee. Thus, USCIS takes a relatively careful position with respect to transferring costs from one applicant to another through the expansion of fee waiver eligibility. DHS notes that, in response to stakeholder concerns about the fee waiver process and rejections of fee waiver requests, USCIS recently published a new Request for Fee Waiver, Form I–912. It revised the form to clarify the instructions, make the form less complex, and reduce the number of incomplete fee waiver requests that are ultimately rejected. In addition, because many applicants have had difficulty providing all the requested information in the spaces provided on the previous form, USCIS also included text boxes that provide space for explanations. Those boxes reduce the need for attachments, and make the form more user-friendly. As for fee exemptions, DHS already exempts from fees those requests with compelling circumstances. These exemptions include benefit requests for a range of humanitarian and protective services, such as refugee and asylum processing, assisting victims of crime 58 USCIS compares fee-paying receipts to the total number of receipts to determine a fee-paying percentage for each immigration benefit request. See page 16 of the supporting documentation in the rulemaking docket for an explanation of fee-paying volume and methodology. PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 73307 and human trafficking, and other related services. USCIS also may allow fee exemptions based on economic necessity in the event of incidents such as an earthquake, hurricane, or other natural disasters affecting localized populations by using the authority of the Director of USCIS at 8 CFR 103.7(d). DHS proposed no new exemptions in the NPRM, and knows of no compelling reason for exempting a new group of applicants, petitioners, or requestors from a fee. Therefore, DHS has added no new exemptions in this final rule. D. Naturalization In the NPRM, DHS proposed to increase the fee for the Application for Naturalization, Form N–400, from $595 to $640. Proposed 8 CFR 103.7(b)(1)(i)(BBB); 81 FR 26939. DHS proposed to hold the increase for the Form N–400 to the reduced fee increase (8 percent) 59 to support naturalization. DHS also proposed an additional fee option for those non-military naturalization applicants with family incomes greater than 150 percent and not more than 200 percent of the Federal Poverty Guidelines. Proposed 8 CFR 103.7(b)(1)(i)(BBB)(1); 81 FR 26939. Specifically, DHS proposed that such applicants would receive a 50 percent discount, resulting in a fee of $320 for Form N–400. DHS proposed this reduced fee option to limit any potential economic disincentives that some eligible naturalization applicants may face when deciding whether or not to seek U.S. citizenship. The lower fee is intended to help ensure that those who have become eligible for naturalization are not prohibited from naturalizing due to their economic means. Several commenters stated that the price of this benefit is already too high. Another commenter stated that the fee for Form N–400 should be increased based on the value of U.S. citizenship, not just the costs associated with adjudicating the form. And, while generally opposed to the fee increase, several commenters wrote in support of USCIS’ efforts to alleviate some of the associated burdens by establishing a three-level fee for Form N–400, including a fee of $320 for certain lowincome applicants who do not qualify for the existing fee waiver. The commenters stated that by doing so, USCIS will expand the pool of potential applicants. DHS agrees with commenters that citizenship is a benefit that deserves special consideration and promotion. Therefore, DHS did not propose a fee 59 The proposed increase was a 7.5 percent due to rounding. E:\FR\FM\24OCR4.SGM 24OCR4 73308 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES4 that reflected all of the costs associated with the relative complexity of the adjudication. The Application for Naturalization fee has not changed in nearly a decade. Additionally, the fee established in this rule for Form N–400 is less than it would be if the 2007 fee were simply adjusted for inflation. According to the Bureau of Labor Statistics, the semiannual average inflation from July 2007 to July 2016 was 16.1 percent.60 If adjusted only for inflation, the current $595 fee would be $690, which is $50 more than the $640 fee set by this rule. DHS has not previously adjusted Form N–400 by CPI–U inflation, but provides this as a point of comparison. As for the comment requesting that the Form N–400 fee be based on the value of U.S. citizenship, doing so would require quantifying that value, which assuming it is appropriate or even possible to do precisely, would be beyond the scope established by the proposed rule. The USCIS ABC model is based on estimated operational costs, and DHS has set the fee at a level that adheres to the fee review methodology, which includes full cost recovery. See new 8 CFR 103.7(b)(1)(i)(BBB). DHS therefore sets the fee for Form N–400 at $640, as proposed. E. Improve Service and Reduce Inefficiencies Many of the comments received that opposed fee increases cited delays in processing times and dissatisfaction with customer service. Some of these commenters stated that they would embrace the fee increases if they resulted in faster processing and improved customer service. A few commenters asserted that if DHS implements any type of USCIS fee increase, then USCIS should guarantee that it will reduce benefit request processing times. At least one commenter recommended increasing the fees further so there would be no excuse for delays in processing. Other commenters wrote about expanding electronic filing and receipting to reduce mail handling and shipping of paper. USCIS acknowledges that since it last adjusted fees in FY 2010, the agency has experienced elevated processing times compared to the goals established in the 2007 fee rule. See 72 FR 29858– 29859. These processing delays have 60 The semiannual average consumer price index for all urban consumers (CPI–U) was 205.7 in July 2007 and 238.8 in July 2016. The change in the Index over 9 years was 33.1 or 16.1 percent. See U.S. Department of Labor, Bureau of Labor Statistics, All Urban Consumers (CPI–U) Semiannual Average tables, available at http:// www.bls.gov/cpi/cpi_dr.htm. VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 contributed to case processing backlogs. This can partially be attributed to having removed the surcharge previously applied to the IEFA fee schedule to recover costs related to RAIO, the SAVE program, and the Office of Citizenship. This was done in anticipation of congressional appropriations for these programs, consistent with the President’s budget requests. As the anticipated budget request was not granted, since FY 2012 USCIS has used other fee revenue to support these programs. Under this final rule, DHS will adjust USCIS fees by a total weighted average increase of 21 percent; the total 21 percent weighted average increase will be allocated as follows: • To reinstate a surcharge in the fee schedule to sustain the current operating levels of RAIO, the SAVE program, and the Office of Citizenship (approximately 8 percent); • To account for reduced revenue stemming from an increase in fee waivers granted since FY 2010 (approximately 9 percent); and • To recover the costs needed to sustain current operating levels while allowing for limited, strategic investments necessary to ensure the agency’s information technology infrastructure is strengthened to protect against potential cyber intrusions, and to build the necessary disaster recovery and back-up capabilities required to effectively deliver the USCIS mission (approximately 4 percent). Through this final rule, USCIS expects to collect sufficient fee revenue to sustain current operating levels of RAIO, the SAVE program, and the Office of Citizenship. This change will allow USCIS to discontinue diverting other fee revenue to fund these programs, thereby increasing the resources available to fund additional personnel 61 needed to improve case processing, reduce backlogs, and move toward processing times that are in line with the commitments in the FY 2007 fee rule. While the agency remains committed to achieving the processing goal commitments in the 2007 fee rule, it acknowledges that these goals remain ambitious. By its very nature, the fee review cycle uses historical staffing and workload information to establish future needs, and as a result, cannot identify the exact resources necessary to guarantee future processing goals. In addition, superseding priorities may 61 For additional information on staffing, see second bullet on pg. 13, Alignment of USCIS Staffing Allocation Model with the Fee Review on pg. 26, and Appendix XIII Table 12: IEFA Positions by Office in the supporting documentation. PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 arise, which could not have been known at the time fee cycle calculations were made, that may impact USCIS’ ability to meet customer expectations. USCIS will need to continue addressing emergent issues and their associated costs, which may impact case processing efficiency and backlogs. Nevertheless, the agency holds the 2007 processing goals to be among its highest priorities and recommits to achieving them as quickly as possible. In addition, USCIS is committed to providing stakeholders and customers with the information they need, when they need it. To that end, USCIS is transforming how it calculates and posts processing time information to improve the timeliness of such postings, but more importantly, to achieve greater transparency of USCIS case processing. For instance, to make current published processing time information more transparent and less complex for customers to interpret, USCIS is evaluating the feasibility of calculating processing times using data generated directly from case management systems, rather than with self-reported performance data provided by Service Centers and Field Offices. Preliminary findings suggest that USCIS will be able to publish processing times sooner and with greater transparency by showing different processing times for each office and form type. USCIS is also considering publishing processing times using a range rather than using one number or date. This approach would show that, for example, half of cases are decided in between X and Y number of months. USCIS also expects to improve the customer experience as it continues to transition to online filing and electronic processing of immigration applications and petitions. With the new personcentric electronic case processing environment, USCIS will possess the data needed to provide near-real-time processing updates to the customer that will identify the case status and time period that has elapsed between actions for each individual case. This will allow greater transparency to the public on how long it will take to process each case as it moves from stage to stage (e.g., from biometrics collection, to interview, to decision). DHS appreciates the comments requesting expansions of electronic filing, and USCIS is actively planning the expansion of its online case management system for the submission and adjudication of immigration benefits. As of the end of FY 2016, approximately 17 percent of the agency’s intake was processed through E:\FR\FM\24OCR4.SGM 24OCR4 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES4 online filing and we are striving to increase that level. In sum, DHS appreciates the commenters’ concerns for timely service. USCIS continually strives to meet timely adjudication goals while balancing security, eligibility analysis, and integrity in the immigration system. Fees have not been adjusted since 2010 and that fee rule did not include the surcharge for RAIO, the SAVE program, and the Office of Citizenship, which has resulted in the reprioritization of resources to cover those program costs. This fee rule is intended to address such shortfalls and provide resources necessary to ensure adequate service. USCIS would be unable to adequately perform its mission if DHS allowed fee levels to remain insufficient while USCIS continued to develop its search for additional efficiencies. F. Premium Processing Premium processing is a program by which filers may request 15-calendarday processing of certain employmentbased immigration benefit requests if they pay an extra amount. 8 CFR 103.7(b)(1)(i)(RR) and (e); proposed 8 CFR 103.7(b)(1)(i)(SS); 81 FR 26939. In 2000, Congress set the premium processing fee at $1,000 and authorized USCIS to adjust the fee for inflation, as determined by the Consumer Price Index (CPI). Section 286(u) of the INA, 8 U.S.C. 1356(u). USCIS adjusted the premium processing fee to $1,225 by using the CPI in the 2010 final rule.62 See 75 FR 58979. DHS proposed no change to premium processing fees or regulations because forecasted premium processing revenue is sufficient to cover the projected costs of providing the premium service and other permissible infrastructure investments. Several commenters wrote to request that USCIS expand premium processing to other forms, including family-based immigration benefit requests, naturalization, relief for victims of crimes who assist law enforcement, and forms related to the EB–5 Immigrant Investor Program. Some commenters stated that using premium processing revenue may alleviate backlogs. Other commenters stated that premium processing is essentially mandatory to ensure the timely and efficient processing of their employment-based petitions. Assuming DHS has the general authority to offer expedited processing fees to additional forms, the timing 62 Premium processing fees are increased using the CPI through statutory authority. See INA sec. 286(u), 8 U.S.C. 1356(u). VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 requirements of many adjudications involve considerations that are out of USCIS’ control. For example, background checks, the timing of which are not controlled by USCIS, are required for: The Application for Temporary Protected Status, Form I– 821; the Application for Naturalization, Form N–400; the Application for Provisional Unlawful Presence Waiver, Form I–601A; and the Application to Register Permanent Residence or Adjust Status, Form I–485. These and many other forms are not suited for expedited processing. USCIS already seeks processing efficiencies where available and shifts workload to balance volume surges, seasonal demands, and competing priorities. In addition, where expedited processing may be possible, it would be extraordinarily time-intensive to determine the appropriate fee amount, target adjudication timeframe, and staffing levels needed to implement a new expedited processing program. Expanding the premium processing program would require USCIS to estimate the costs of a service that does not currently exist with sufficient confidence that it can deliver the service promised and not impair service for other immigration benefit requests. Nevertheless, USCIS will continue considering additional premium processing services and its ability to improve services without creating new challenges. DHS made no changes in this final rule as a result of these comments. G. Immigrant Investors In the NPRM, DHS proposed a number of changes to fees related to the Employment-Based Immigrant Visa, Fifth Preference (EB–5) ‘‘Immigrant Investor’’ Program.63 Specifically, DHS 63 The EB–5 program was created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. The EB–5 ‘‘regional center program’’ was later added in 1992 by the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993. Pub. L. 102–395, sec. 610, 106 Stat 1828 (Oct. 6, 1992). The EB–5 immigrant classification allows qualifying individuals, and any accompanying or following to join spouses and children, to obtain lawful permanent resident (LPR) status if the qualifying individuals have invested, or are actively in the process of investing, $1 million in a new commercial enterprise. See INA sec. 203(b)(5)(A) and (C), 8 U.S.C. 1153(b)(5)(A) and (C). To qualify, the individual’s investment must benefit the U.S. economy and create full-time jobs for 10 or more qualifying employees. INA sec. 203(b)(5)(A)(ii), 8 U.S.C. 1153(B)(5)(A)(ii). If the investment is in a Targeted Employment Area (TEA) (i.e., a rural area or an area that has unemployment of at least 150% of the national average), the required capital investment amount is $500,000 rather than $1 million. INA sec. 203(b)(5)(C)(ii), 8 U.S.C. 1153(b)(5)(C)(ii); 8 CFR 204.6(f)(2). Entrepreneurs PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 73309 proposed to increase the fee for the Application for Regional Center Under the Immigrant Investor Program, Form I–924, from $6,230 to $17,795. See proposed 8 CFR 103.7(b)(1)(i)(WW); 81 FR 26939. DHS proposed to establish a new fee for the Annual Certification of Regional Center, Form I–924A, at $3,035. See proposed 8 CFR 103.7(b)(1)(i)(XX); 81 FR 26939. DHS proposed to increase the fee for the Immigrant Petition by Alien Entrepreneur, Form I–526, from $1,500 to $3,675. See proposed 8 CFR 103.7(b)(1)(i)(W); 81 FR 26938. Finally, DHS proposed to hold the fee for the Petition by Entrepreneur to Remove Conditions, Form I–829, at $3,750. See proposed 8 CFR 103.7(b)(1)(i)(PP); 81 FR 26939. With the exception of the proposed fee for Form I–829, each proposed EB–5 fee increase was the result of application of the standard USCIS fee methodology to the applicable benefit request. Several commenters objected to the proposed increases, noting that these are some of the highest proposed fee increases, while the related benefit requests have some of the longest processing times. Another commenter wrote to applaud the increase to EB–5 fees in general, but requested that USCIS conduct site visits and evaluate whether regional centers are misrepresenting themselves to investors. As an initial matter, and as noted previously, DHS is authorized to set fees at a level that ensures recovery of the full costs of providing immigration adjudication and naturalization services. Because USCIS relies almost entirely on fee revenue, in the absence of a fee schedule that ensures full cost recovery, USCIS would be unable to sustain an adequate level of service, let alone invest in program improvements. Full cost recovery means not only that fee-paying applicants and petitioners must pay their proportionate share of costs, but also that at least some feepaying applicants and petitioners must pay a share of the immigration adjudication and naturalization services that DHS provides on a fee-exempt, feereduced, or fee-waived basis. DHS is therefore mindful to adhere to the standard USCIS fee methodology as often as possible, and to avoid overuse may meet the job creation requirements through the creation of indirect jobs by making qualifying investments within a new commercial enterprise associated with a regional center approved by USCIS for participation in the regional center program. INA sec. 203(b)(5), 8 U.S.C. 1153(b)(5); 8 CFR 204.6(e) and (m)(7). For more information on the EB–5 program, see https://www.uscis.gov/ working-united-states/permanent-workers/ employment-based-immigration-fifth-preference-eb5/about-eb-5-visa. E:\FR\FM\24OCR4.SGM 24OCR4 73310 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES4 of DHS’s discretion to eliminate or reduce fees for special groups of beneficiaries. The proposed fees for three of the four EB–5 Program forms resulted from application of the standard USCIS fee methodology,64 because DHS did not find a compelling reason to shift the burden of adjudicating these forms onto other applicants. In addition, the relatively high fees for these requests result in part from the high costs associated with adjudicating them. For instance, USCIS has recently implemented several changes to refine and improve the delivery, security and integrity of the EB–5 Program. USCIS established the Immigrant Investor Program Office (IPO) in Washington, DC in 2012. Since that time, IPO has regularly added staff positions to focus both on managing the program and ensuring identification of fraud, national security, or public safety concerns within the program. In addition, USCIS plans to conduct increased site visits to regional centers and associated commercial enterprises to verify information provided in regional center applications and investor petitions and to clarify its EB– 5 regulations. Currently, USCIS is in the process of hiring and training additional adjudicators, economists, and support staff needed to adjudicate the benefit requests associated with the EB–5 program. Part of the increase in fees for EB–5-related adjudications will bolster the fraud detection and national security capabilities of USCIS to investigate fraud and abuse at all levels of the EB–5 process, including investigating projects that receive funds from EB–5 investors and auditing regional center annual reports to enhance compliance with the program. See 81 FR 26918. Each of these factors contributed to the proposed EB–5 Program fees. In the immediately succeeding section, as well as in the Paperwork Reduction Act section of this preamble, DHS responds to additional comments on the proposed EB–5 fees. 1. Application for Regional Center Under the Immigrant Investor Program, Form I–924 In the NPRM, DHS proposed to increase the fee for the Application for Regional Center Under the Immigrant Investor Program, Form I–924, from $6,230 to $17,795. See proposed 8 CFR 103.7(b)(1)(i)(WW); 81 FR 26939. The proposed fee increase was the result of 64 The proposed fee for the Form I–829 was above the model output, as described in the proposed rule. VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 application of the standard USCIS fee methodology to the benefit request. At least one commenter wrote to oppose the proposed Form I–924 fee increase due to the possible impact on EB–5 regional centers. The commenter recommended a possible reduced fee for centers in existence for fewer than 5 years. The same commenter stated dissatisfaction with the level of customer service that USCIS has provided and suggested that USCIS create an electronic platform for EB–5 regional centers to monitor their applications and cases. Other commenters stated that the proposed fee increase were unreasonable and inflated, especially in light of long processing delays. At least one commenter stated that regional centers in rural and high-unemployment areas are less capable of withstanding long processing delays. The same commenter stated that the proposed 286 percent fee increase for the Form I–924 should be accompanied by an assurance that processing times would be cut by 75 percent. The commenter stated that an alternative to processing time reductions would be to create a process in which regional centers would be automatically approved if USCIS does not provide a notice of action within 4 months, or if USCIS does not summarily reject a petition for which there have been prior approvals on the same project. Another commenter stated that DHS could adopt a tiered fee structure for Form I–924 based on whether the associated investment project was an actual or exemplar project. At least one commenter mentioned the potential for legislation to alter the regional center requirements. USCIS understands the desire of EB– 5 regional centers to receive prompt and courteous service, and the agency strives to provide the best level of service possible. As the program has grown and applicants and projects have become more advanced, the current fee level has proven to be inadequate to ensure that USCIS has the resources it needs. The proposed fee increase was determined using USCIS’s standard feesetting methodology, based on the number of hours required to adjudicate Form I–924. These adjudications require economists and adjudications officers to thoroughly review extensive business documents, economic impact analyses, and other project-related documents. The proposed fee increase was, in part, calculated to allow USCIS to hire additional staff to process Forms I–924 and provide better and more thorough service. Currently, USCIS does not have the data to quantify alternative fees for PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 regional centers in existence for fewer than 5 years. In addition, USCIS does not track Form I–924 completion rates based on whether the project involves a rural or urban area, an area of high or low employment, or an actual or exemplar project. USCIS also cannot commit to across-the-board processing time reductions as adjudications involve case-by-case review of complex applications and related supplementary information, nor can it implement a process that automatically approves a regional center without a complete adjudication. Moreover, USCIS does not prioritize Form I–924 workloads based on whether regional center projects involve a rural or urban area, or an area of high or low employment. DHS may consider exploring the feasibility of such a change in the future, but will not implement a change at this time. With respect to the commenter that identified the possibility of legislative changes, USCIS greatly appreciates the work of stakeholders towards reauthorization of the Regional Center Program and reform of the EB–5 program more generally. USCIS is cognizant of potential legislative changes to the EB–5 program and is also aware that such changes may require adjustments to USCIS adjudication processes. In the event that legislative changes are enacted, USCIS would assess any significant changes and reassess program requirements, adjudication process, and required fees. For now, however, and for the reasons stated previously, this rule sets the Form I–924 fee at $17,795, as proposed. 2. Immigrant Petition by Alien Entrepreneur, Form I–526 In the NPRM, DHS proposed to increase the fee for the Immigrant Petition by Alien Entrepreneur, Form I– 526, from $1,500 to $3,675. See proposed 8 CFR 103.7(b)(1)(i)(W); 81 FR 26938. The proposed fee increase was the result of application of the standard USCIS fee methodology to the benefit request. Some commenters wrote to request additional information on the proposed fee increase. Another commenter stated that a lack of processing efficiency can cause problems for Form I–526 applicants. Specifically, the commenter stated that EB–5 project sponsors sometimes agree to put an investor’s money in escrow until the Form I–526 is approved. If the form is denied, project sponsors return those funds to the investor; if approved, the project sponsor uses those funds on the project. The commenter stated that such projects can languish when the investor’s money is held in escrow for lengthy periods of E:\FR\FM\24OCR4.SGM 24OCR4 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES4 time. According to the commenter, although escrow arrangements provide substantial benefits to program integrity, they are becoming commercially untenable due to Form I–526 processing times. The commenter also asserted that projects themselves are also hurt by lengthy processing times, as projects may be well underway by the time USCIS denies the forms. USCIS has taken multiple steps towards reducing Form I–526 processing times. As previously mentioned, USCIS is in the process of hiring and training additional adjudications officers, economists, and support staff for these form types. Additionally, USCIS is working to revise the EB–5 regulations and is preparing revisions to the EB–5 Policy Manual. USCIS is also improving the forms and form instructions for the EB– 5 program. The EB–5 program fee increases will further these agency efforts with the goal of improving operational efficiencies while enhancing predictability and transparency in the adjudication process. USCIS understands that long delays in Form I– 526 adjudications negatively impact both immigrant investors and the projects awaiting the release of their investment funds from escrow. USCIS strives to process Form I–526 filings as soon as practicable. In addition, regarding the release of escrowed funds, USCIS permits EB–5 financing to replace interim financing where the financing to be replaced was contemplated as temporary financing that would be replaced.65 DHS made no changes to the proposed Form I–526 fee as a result of these comments, and is finalizing the fee at $3,675, as proposed. 3. Petition by Entrepreneur To Remove Conditions, Form I–829 In the NPRM, DHS proposed to hold the fee for the Petition by Entrepreneur to Remove Conditions, Form I–829, at $3,750. See proposed 8 CFR 103.7(b)(1)(i)(PP); 81 FR 26939. While the fee model calculated a fee of $2,353, DHS proposed to maintain the current fee for such petitions. See 81 FR 26918. Because of the recent and continued growth and maturation of the EB–5 Program, associated costs over the next few fiscal years are uncertain. Among other things, the final parameters of the program are still evolving, such as the number of USCIS employees and facilities necessary to carry out 65 See Policy Memorandum, EB–5 Adjudications Policy (May 30, 2013) at https://www.uscis.gov/ sites/default/files/USCIS/Laws/Memoranda/2013/ May/EB5%20Adjudications%20PM%20 (Approved%20as%20final%205-30-13).pdf. VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 enhanced review of EB–5 filings, as well as site visits. This uncertainty makes it unclear whether EB–5 related fees will fully fund EB–5 program activities. DHS therefore proposed to keep the Form I– 829 at the current fee, above the full cost recovery calculation, to shield USCIS against potential, but likely rising costs.66 At least one commenter indicated current USCIS processing times for Form I–829 extend beyond the 1-year automatic extension of the entrepreneur’s conditional residence, imposing an additional burden on petitioners traveling outside of the United States. The commenter stated that delays in processing Form I–829 mean that investments must remain at risk for an extended period of time. The commenter added that USCIS could increase the efficiency of Form I–829 adjudications by consolidating the business-related portions of multiple Forms I–829 associated with a single investment project into a single adjudication. Another commenter recommended that USCIS implement electronic filing of this and other forms related to the Immigrant Investor Program to increase efficiency. USCIS recognizes that lengthy Form I–829 processing times place a strain on EB–5 investors who are awaiting approval of their applications to adjust to LPR status. USCIS is working diligently to add staffing, and the agency plans to publish regulatory action, policy guidance, and revised forms with the goal of improving service delivery to applicants and improving the integrity of the EB–5 program. In part due to the tentative nature of these plans, DHS has no way to reliably quantify any potential cost savings that might be associated with these actions, and therefore could not propose to reduce the Form I–829 fee to account for such savings. DHS appreciates the suggestions for improving EB–5 processing times. DHS clarifies that USCIS already has processes in place to streamline adjudication of the business-related portions of multiple Forms I–829 associated with a single, new investment project. Specifically, when USCIS receives a regional centerassociated Form I–829 that involves a new commercial enterprise, USCIS reviews the first two petitions associated with that new commercial 66 If DHS had decided to adjust the fee consistent with the adjustment that DHS made to most other fees, the proposed fee would have decreased to $3,280. The proposed fee would have been higher than the model output because of Cost Reallocation. Other fees would also have been adjusted accordingly. PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 73311 enterprise to determine if there are specific project-related issues that would apply to all petitioners associated with the new commercial enterprise. After completing that review, USCIS commences adjudication of all Forms I– 829 associated with that new commercial enterprise filed within a given period. Similarly, when USCIS receives a regional center-associated Form I–829 that involves a previously reviewed commercial enterprise, USCIS immediately assigns that petition for adjudication. In other words, USCIS currently adjudicates Form I–829 petitions in ‘‘first in, first out’’ order by new commercial enterprises. USCIS constantly searches for new ways to increase efficiencies in the adjudications process, and for that reason cannot commit to a uniform queuing practice in this rule, or reduce associated fees in anticipation of heretofore unrealized savings. USCIS does not have immediate plans to allow electronic filing for EB–5 requests, but appreciates commenters’ desire to avoid voluminous paper filings. USCIS plans to allow electronic filing for EB–5 requests in the future. DHS made no changes to the proposed Form I–829 fee, or the policies regarding EB–5 adjudications, as a result of these comments. The final rule sets the Form I–829 fee at $3,750, as proposed. H. Methods Used To Determine Fee Amounts As described previously and in the NPRM, the standard USCIS fee-setting methodology is intended to ensure full cost recovery for USCIS immigration adjudication and naturalization services. DHS based the proposed USCIS fees on the estimated costs of providing immigration benefit adjudication and naturalization services. In addition, to the extent possible, and with limited exception, DHS based the proposed USCIS fees on the relative identifiable costs associated with providing each particular benefit or service. This fee methodology is consistent with government-wide feesetting guidelines outlined by OMB Circular A–25, 58 FR 38142 (July 15, 1993); 67 the principles of the Chief Financial Officers Act of 1990, 31 U.S.C. 901–03; and the Federal Accounting Standards Advisory Board (FASAB) guidelines.68 Additional information about the fee methodology can be found in this preamble, the preamble for the 67 Office of Management and Budget, Circular A– 25, User Charges, available at http:// www.whitehouse.gov/omb/circulars_a025/. 68 Handbook, Version 14 (06/15), available at http://files.fasab.gov/pdffiles/handbook_sffas_ 4.pdf. E:\FR\FM\24OCR4.SGM 24OCR4 73312 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations proposed rule, and the supporting documentation accompanying this rulemaking.69 DHS received a number of comments regarding the methods that DHS uses to determine fee amounts. Commenters made statements about the need for full cost recovery without appropriations, the decision to exclude revenue from certain benefits in the proposed fee schedule, potential alternative fee methodologies, and the potential for cost reductions. DHS responds to these comments below. sradovich on DSK3GMQ082PROD with RULES4 1. Recovery of Full Cost Without Appropriations Some commenters suggested that USCIS seek appropriations to reduce immigration benefit request fees. Some commenters opposing the fee increase mentioned that immigrants in the United States pay Federal income taxes, Social Security taxes, and other fees and questioned whether those are being accounted for in USCIS fee calculations. Commenters stated that appropriations could help reduce processing times or fund programs that do not recover full cost on their own, such as RAIO, the SAVE program, and the Office of Citizenship. DHS acknowledges that immigrants pay both Social Security and various Federal taxes and fees, but the decision whether to fund USCIS services through tax revenues belongs to the U.S. Congress. And in recent years, such funding has been unavailable. As noted in the NPRM, USCIS is almost entirely funded by fees and must recover the full cost of its operations. See 81 FR 26905– 26912. Fees collected from individuals and entities filing immigration benefit requests are deposited into the IEFA and used to fund the cost of immigration benefits and naturalization. Id. USCIS has not received any substantial appropriations since FY 2011. Similarly, USCIS received no FY 2016 discretionary appropriations for the SAVE program or the Office of Citizenship. See DHS Appropriations Act 2016, Public Law 114–113, div. F. (Dec. 18, 2015) and 81 FR 26912. USCIS did not receive appropriations for refugee and asylum processing or the 69 The USCIS fee methodology is not intended to yield a profit for the agency nor the Federal Government. The sole purpose of USCIS IEFA fees is to achieve full cost recovery to allow the agency to provide an adequate level of service. USCIS filing fees are not designed to function as tariffs, to generate general revenue to support broader policy decisions, or to deter certain behavior. As previously stated in this final rule, filing fees are generally not intended to influence public policy in favor of or in opposition to immigration, support broader infrastructure, or cover costs beyond USCIS. VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 SAVE program after FY 2011. USCIS received $2.5 million for the immigrant integration grants program in FY 2013 (Pub. L. 113–6) and FY 2014 (Pub. L. 113–76), but the agency did not receive appropriations for that program in FY 2015 or FY 2016. The only USCIS appropriations for FY 2016 provided funding for the E-Verify employment eligibility verification program. See Consolidated Appropriations Act, 2016, Public Law 114–113, div. F, tit. IV (Dec. 18, 2015) (DHS Appropriations Act 2016). Other than as described, USCIS receives no appropriations to offset the cost of adjudicating immigration benefit requests. Id. As a consequence of this funding structure, taxpayers do not bear any costs related to the IEFA and bear only a nominal burden to fund USCIS. However, in the event appropriations are provided that will materially change IEFA fees, then DHS could pursue a rulemaking to adjust fees appropriately. Finally, one commenter questioned why SAVE fees charged to local, state, and Federal agencies do not recover the full cost of the SAVE program. USCIS collects SAVE fees from federal government agencies under the authority of the Economy Act, 31 U.S.C. 1535, and from state or local government agencies under the authority of the Inter-Governmental Cooperation Act, 31 U.S.C. 6501. SAVE fees are included in Memoranda of Agreement (MOAs) with user agencies, which are updated based on the established periods of performance. As noted in the proposed rule, SAVE fees impact the IEFA fees established in this rule only as necessary to fund the SAVE costs that remain after taking into account revenue received under the MOAs. See 81 FR 26911. Fees charged to SAVE users do not cover the full cost of the SAVE program; rather, they only cover the estimated per-query cost of operating the verification system. IEFA funds are used to cover other costs of the program, especially personnel and overhead expenses. In short, then, the funding structure for SAVE is a dual one, in which some costs are covered by reimbursements, and other costs from IEFA funds. Congress has supported this funding arrangement in the past, noting ongoing budget constraints.70 As the commenter requests, USCIS and DHS regularly examine SAVE fees, and may modify them in the future. 2. Exclusion of Temporary or Uncertain Costs, Items, and Programs As noted in the NPRM, DHS excluded from the fee model the costs and revenue associated with certain 70 H.R. PO 00000 Rep. No. 112–492 (May 23, 2012). Frm 00022 Fmt 4701 Sfmt 4700 programs that are time-limited or that may otherwise be narrowed or terminated, including because they are predicated on guidance and not preserved in regulations or statute.71 See 81 FR 26914–26915. This exclusion applies to the Application for TPS, Form I–821; Consideration of Deferred Action for Childhood Arrivals (DACA), Form I–821D; and Application for Suspension of Deportation or Special Rule Cancellation of Removal (Pursuant to Section 203 of Pub. L. 105–100) (Nicaraguan Adjustment and Central American Relief Act (NACARA)), Form I–881. As stated in the NPRM, DACA and TPS are both administrative exercises of discretion that may be granted on a case-by-case basis for particular periods of time. Both TPS and DACA, and the individual grants under each, are subject to intermittent renewal or extension at DHS’s discretion. For NACARA, the eligible population will eventually be exhausted due to relevant eligibility requirements, including the date by which an applicant was required to have entered the United States. Given that these initiatives or programs are temporary by definition and at the discretion of DHS, USCIS excluded the associated cost and workload from the fee review and did not propose to allocate overhead and other fixed costs to these workload volumes. See 81 FR 26915. Some commenters wrote to question the rationale for excluding DACA and TPS from the fee review. Several commenters stated that it is a financial burden to have to renew DACA every 2 years and to renew TPS every 18 months. Other commenters stated that, by their own estimates, the cost of administering DACA is less than the revenue that the program generates. Some commenters stated that fee increases to Forms I–765 and I–131 would deter DACA and TPS renewals and initial applications. Following consideration of the comments received, DHS retains its earlier position. The practice of excluding these initiatives or programs that are temporary by definition from the fee review mitigates an unnecessary revenue risk, by ensuring that USCIS 71 As noted in the proposed rule, for the purposes of this rulemaking, DHS is including all requests funded from the IEFA in the term ‘‘benefit request’’ or ‘‘immigration benefit request’’ although the form or request may not be to request an immigration benefit. For example, DACA is solely an exercise of prosecutorial discretion by DHS and not an immigration benefit, and would fit under the definition of ‘‘benefit request’’ solely for purposes of this rule. For historic receipts and completion information, see USCIS immigration and citizenship data available at https://www.uscis.gov/ tools/reports-studies/immigration-forms-data. E:\FR\FM\24OCR4.SGM 24OCR4 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations will have enough revenue to recover full cost regardless of DHS’s discretionary decision to continue these initiatives. This allows DHS to maintain the integrity of its ABC model, ensure recovery of full costs, and mitigate revenue risk from unreliable sources. For these reasons, the cost of adjudicating requests associated with these policies was not considered, and this final rule excludes from the ABC model the costs and revenue associated with aforementioned policies, as proposed. sradovich on DSK3GMQ082PROD with RULES4 3. Setting Fees by Benefit Type A commenter stated that IEFA fees should be based on the specific immigration benefit sought by a filer, rather than the specific form type used. The commenter noted that USCIS tracks completion rate (i.e., adjudication time) by form number, and that the agency generally establishes a fee for the form type rather than the benefit being sought through the filing, even if the same form can be used to obtain different immigration benefits. For example, Form I–129 is used to request several types of nonimmigrant visa classifications, and a different fee could conceivably be calculated for each such classification.72 USCIS already sets some of its fees based on benefit sought, rather than form type used. For example, USCIS sets different fees for Form I–131 depending on the benefit sought, and the agency provides fee exemptions to certain filers of Form I–360. For other forms that have multiple uses, USCIS has not calculated the completion rate with enough precision to determine fees based on the benefits sought by filers of those forms. USCIS officers are required to manually report the time they spend on adjudicating forms; requiring reporting for sub-uses of those forms would divert time from processing requests. In addition, tracking whether filers are submitting the appropriate fees for the specific benefit sought would increase complexity for the agency and the public, potentially adding to processing delays. Nonetheless, DHS will continue considering this comment and may further refine its fee-setting methodology in the future to determine if different fees for the same form can be justified, as well as accurately and efficiently determined, without causing confusion and delay for adjudicators and the public. DHS made no changes 72 Currently, the fee is the same for each Form I– 129 filed. This fee has historically been calculated based on the average level of complexity for the adjudication of the form. VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 in this final rule as a result of this comment. 4. Income-Based Fee Structure Some commenters stated that DHS should generally base fees on the filer’s income level or cost of living. Although USCIS is adopting a limited incomebased fee structure in the naturalization context, adjusting all fees based on income or cost of living would be administratively complex and would require even higher costs to administer. A tiered fee system would require staff dedicated to income verification and necessitate significant information system changes to accommodate multiple fee scenarios for every form. The costs and administrative burden associated with implementing such a system would require additional overall fee revenue. As a result, DHS does not support making the entire fee schedule contingent on income or cost of living and DHS has made no changes in this final rule as a result of these comments. 5. Reduction in USCIS Costs A number of commenters recommended that USCIS reduce costs internally instead of raising fees to fully recover costs. For instance, some commenters stated that USCIS employees’ salaries were too high. No commenters proposed a methodology that DHS could use to adjust the proposed fee schedule to account for unrealized cost reductions. USCIS is continually exploring opportunities to increase efficiency and reduce unnecessary costs without negatively affecting the delivery of benefits. Although USCIS will continue seeking out cost reductions, and may incorporate the results of such cost reductions in future fee reviews, DHS cannot set aside the need for full cost recovery indefinitely. Accordingly, DHS made no changes in this final rule as a result of these comments. I. Dishonored Payments In the NPRM, in a set of proposals separate and distinct from the proposed fee schedule, DHS proposed to eliminate three rules requiring that cases be held while deficient payments are corrected. See proposed 8 CFR 103.2(a)(7)(ii), 103.7(a)(2); 81 FR 26936; see also previous 8 CFR 103.2(a)(7)(ii), (a)(2); 8 CFR 103.17(b)(1). Instead, DHS proposed that if a financial instrument used to pay a fee were returned as unpayable after one re-presentment, USCIS would reject the filing and impose a standard $30 charge. The purpose of the proposed change was to reduce the USCIS administrative costs for holding and tracking immigration PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 73313 benefit requests when the accompanying payment has already been rejected. DHS received several comments concerning these proposed changes. Some commenters suggested that USCIS maintain the current procedure or allow for several attempts to process a payment. These commenters noted that some payment problems are due to circumstances beyond the filer’s control. These commenters stated that dishonored payments may result from errors at a USCIS Lockbox facility or a temporary disruption to a bank or Automated Clearing House (ACH) 73 network. These commenters also stated that the rejection of a benefit request can have serious repercussions for the filer. Commenters asserted that a payment failure may be especially disruptive if, for example, an underlying labor certification application for Form I–140 is about to expire, a derivative applicant is about to age out of eligibility, the priority date for an application for adjustment of status is scheduled to retrogress, or an applicant’s current status will expire imminently and the pendency and approval of the application would otherwise result in an extension of status. These commenters stated that time-sensitive immigration benefit requests could be delayed by months or years because of the proposed changes. One commenter also noted that the rejected filings may require over a month to be returned to filers. DHS agrees that ACH and bank network outages can sometimes result in a rejection or delay payments for a few days.74 In the past, USCIS has addressed the possibility of ACH and network outages by arranging for the Department of the Treasury (Treasury) to automatically re-present a rejected payment twice to see if it clears on the second or third attempt before sending the filer the bill for the rejected payment.75 Re-depositing a rejected 73 The ACH Network is a nationwide electronic fund transfer system that provides for the inter-bank clearing of electronic credit and debit transactions and for the exchange of payment-related information among participating financial institutions. 74 Treasury notifies USCIS of the reasons the payment was dishonored. Sometimes the reason is a lack of funds and sometimes the reason is a system outage. DHS will apply the dishonored payment provisions in this rule to all dishonored payments, regardless of the reason provided by Treasury. DHS believes that the safeguards described in the remainder of this section appropriately balance the interests of applicants and beneficiaries, on the one hand, and USCIS’s interest in sound and efficient administration, on the other. 75 USCIS implemented this internal policy in an effort to reduce the number of bad checks under the E:\FR\FM\24OCR4.SGM Continued 24OCR4 73314 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES4 check, known as ‘‘re-presentment,’’ was not required by the regulations, but USCIS arranged for Treasury to do this as a courtesy to filers.76 To address the concerns raised by commenters that a dishonored payment may be due to circumstances beyond the filer’s control, DHS has decided to continue this practice, and to codify it (with slight revision) in this final rule. To make sure that a payment rejection is the result of insufficient funds and not due to USCIS error or network outages, USCIS (through Treasury) will re-submit rejected payment instruments to the appropriate financial institution one time. See new 8 CFR 103.2(a)(7)(ii)(D).77 In effect, DHS will implement as a regulatory requirement the current practice under which USCIS re-presents rejected payments, but this rule will only require USCIS to resubmit the payment once, not twice. USCIS estimates that this change, based on its experience with how many days are required for financial instruments to clear, will provide a total of approximately 10 days before Treasury notifies USCIS that the payment (including re-presentment) has failed. The change codifies in regulation a practice that reduces instances in which requests are erroneously rejected because a bank erroneously rejects the relevant financial instrument. This final rule also corrects an oversight in the NPRM related to how USCIS treats benefit requests that have already been approved when the agency learns that the financial instrument used to pay the associated fee is unpayable. Under current 8 CFR 103.2(a)(7)(ii), if USCIS has approved a benefit request before the payment has cleared, and the filer, having received notice of failed payment, fails to pay the filing fee and associated service charge within 14 days, USCIS automatically revokes the approval, or reopens and denies the request, due to improper filing. See, e.g., previous 8 CFR 103.2(a)(1) (‘‘Each benefit request or other document must be filed with fee(s) as required by regulation.’’); 8 CFR 103.5(a)(5). As a result, a filer could not retain an assumption that the payor may deposit funds during the intervening period and to preclude the need for USCIS to hold the bad check case while the payor has 14 days to correct it. 76 DHS notes that the proposed rule’s preamble erroneously stated that ‘‘DHS is proposing that USCIS will not begin processing the benefit request until the payment has cleared.’’ See 81 FR 26920. No provisions were proposed that would require USCIS to hold cases. As in the past, USCIS strives to intake and begin processing every benefit request as soon as practicable, without regard for whether or not the payment has cleared. 77 This policy will not apply to credit card payments. VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 approved benefit if the financial instrument used to pay the fee was subsequently returned as unpayable.78 Unfortunately, the proposed rule erroneously omitted this existing regulatory authority, see proposed 8 CFR 103.2(a)(7)(ii); 81 FR 26936, and also erroneously failed to include conforming updates to a related provision, see previous 8 CFR 205.1(a)(2) (providing for automatic revocation of certain petitions ‘‘[i]f the filing fee and associated service charge are not paid within 14 days of the notification to the remitter that his or her check or other financial instrument used to pay the filing fee has been returned as not payable’’). As the NPRM and this rule make clear, however, the ability of USCIS to collect fees is a fundamental aspect of its ability to function. USCIS must be able to continue requiring proper fee payments as a condition of eligibility for immigration benefits. Individuals who file a benefit request with a fee payment that is dishonored should, therefore, have no expectation that they might benefit from early processing of their filing. Given that background, the only alternative to continuing to provide for revocation would be for USCIS to hold each benefit request until the financial instrument used to pay the fee has finally cleared or been rejected. In the interest of administrative efficiency and prompt processing of benefit requests, DHS has rejected that alternative. Therefore, DHS has provided in this final rule that if a remittance in payment of any fee submitted with a request is not honored by the bank or financial institution on which it is drawn, and the request was approved, USCIS will initiate revocation of the approval by issuing a notice of intent to revoke (NOIR). See new 8 CFR 103.7(a)(2)(iii).79 The applicant, petitioner or requestor will be provided an opportunity to respond to the NOIR with evidence that the payment was honored and the revocation would be in error. To assuage concerns about procedural safeguards in 78 In such a case, USCIS would either (1) revoke the approval automatically, (2) send a notice of intent to revoke the approval, or (3) reopen the approved case and deny it. See, e.g., 8 CFR 103.5(a)(5) (motion by Service officer); 205.1(a)(2) (automatic revocation of immigrant petitions); 205.2 (revocation on notice); 214.2(h)(11)(iii)(A)(5), (l)(9)(iii)(A)(5), (o)(8)(iii)(A)(5), (p)(10)(iii)(A)(5), (q)(9)(iii)(D) & (r)(18)(iii)(A)(5); 274a.14(b) (revocation for erroneous approval); see also, e.g., 6 U.S.C. 112; INA secs. 103, 204, 205, 214, 216, 216A, 244, 274A, and 286; 8 U.S.C. 1103, 1154, 1155, 1184, 1186a, 1186b, 1254a, 1324a, and 1356. 79 DHS considers an NOIR process to provide superior notice to requestors, as compared to the automatic revocation provision in previous 8 CFR 103.2(a)(7)(ii). PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 such a situation, USCIS has decided to provide a notice in advance of the revocation in response to public comments that stated that a mistake by USCIS or a contractor could result in a dishonored payment. The applicant, petitioner or requestor may not, however, pay the rejected fee in response to the NOIR. DHS emphasizes that this provision applies if any fee submitted with a benefit request is returned as dishonored. If a benefit request requires multiple fees, all fee instruments submitted with the request must be honored by the remitting bank; if any one fee instrument is dishonored after approval of the request, USCIS will revoke the approval after notice and will retain any filing fees properly paid. For instance, for the past five fiscal years, an average of 231 petitions per year were submitted with a Request for Premium Processing Service, Form I–907, accompanied by a check that was dishonored by the remitting bank. If a benefit approved under these circumstances is not revoked, petitioners would have the perverse incentive to request premium processing services in order to receive a swift approval, knowing they would not suffer any consequences once the bank dishonors the payment submitted for premium processing.80 If the bank dishonors the Form I–907 payment after USCIS has approved the benefit request underlying the Form I–907, USCIS may revoke the approval after notice and, in that event, would retain the filing fees for the underlying benefit.81 In short, USCIS is fee funded and it must be able to adjudicate requests, including those which it has committed to approve in an expedited manner, without concerns that the fee payment will be declined. Accordingly, under this final rule, USCIS will intake the benefit request, deposit the fee, and begin processing the filing. If the payment is rejected, Treasury will represent the payment instrument on USCIS’s behalf. If the payment is rejected on the second try, Treasury will notify USCIS and USCIS, solely under 80 Currently, in the case of a request for premium processing, if the Form I–907 check is returned for insufficient funds, USCIS will process the case as a regular submission and will not revoke the approval even if the Form I–907 check is never honored. Unless DHS can also revoke the underlying petition, some premium processing requesters will benefit from a swift adjudication for which they have not paid. 81 Just as USCIS does not refund filing fees for a denied benefit, USCIS will not refund filing fees for a revoked benefit. After USCIS has fully adjudicated the request, it will have performed the same amount of work and expended the same resources for the adjudication that it would have expended if the case had been approved or denied. E:\FR\FM\24OCR4.SGM 24OCR4 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations its own authority, will reject the filing for fee non-payment. If the filing has been approved, USCIS will initiate revocation of the approval. See id. The elimination of the 14-day waiting period will reduce the need for special handling of cases involving a dishonored payment. The requirement to re-present rejected payments will address commenters’ concerns about rejections that occur through no fault of the filer. And the requirement to revoke an approved request if the payment has ultimately been rejected will help ensure the integrity of the benefits adjudication system. sradovich on DSK3GMQ082PROD with RULES4 J. Refunds In the NPRM, DHS proposed a minor change in the provision regarding USCIS fee refunds. See proposed 8 CFR 103.2(a)(1); 81 FR 26936. In general, and except for a premium processing fee under 8 CFR 103.7(e)(2)(i), USCIS does not refund a fee regardless of the decision on the immigration benefit. However, USCIS will refund a fee if the agency determines that an administrative error occurred resulting in the incorrect collection of a fee. See 81 FR 26920–26921. DHS proposed to revise 8 CFR 103.2(a)(1) to provide that fees are ‘‘generally’’ not refunded. This would address concerns that the current regulatory text does not explicitly permit refunds at DHS discretion. DHS currently grants such refunds because as electronic filings and associated electronic payments have increased, there has been an increase in the number of erroneous payments where refunds are appropriate. Some commenters stated that they supported the regulatory change to clarify that USCIS does not generally allow refunds, but that a refund may occur as a result of administrative error or unnecessary payment. See 81 FR 26936. DHS has made no change based on these comments. DHS is finalizing this provision as proposed. K. Visa Allocation Some commenters wrote that they generally opposed the fee increases in the proposed rule due to long waits for immigrant visas. Although these long waits are due to visa retrogression in oversubscribed categories, some attributed it to USCIS processing inefficiencies and questioned a fee hike in the face of such delays.82 Some commenters stated that USCIS should 82 Visa retrogression occurs when more people apply for a visa in a particular category or country than there are visas available for that month https:// www.uscis.gov/green-card/green-card-processesand-procedures/visa-availability-priority-dates/ visa-retrogression. VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 be able to move visa priority dates forward if fee increases are implemented. Significant improvements have been made in the visa coordination process between DHS and the Department of State (DOS). In September 2015, DOS, in coordination with DHS, revised the procedures for determining immigrant visa availability and authorization for issuance for both employment-based and family-sponsored applicants for adjustment of status in the United States. See Department of State Visa Bulletin for October 2015.83 These revisions were made to better align with DOS’ immigrant visa overseas consular processing application procedures and to enhance DOS’ ability to better predict overall immigrant visa demand and determine cut-off dates for visa issuance published in the Visa Bulletin. Id. DHS appreciates the concerns raised by individuals who may have been affected by long visa waits and visa retrogression. However, requests to make further revisions to the visa allocation process and priority dates must be done in coordination with DOS and are outside the scope of this rulemaking. L. Credit Card Payments Finally, some commenters criticized USCIS for not allowing credit card payments for additional immigration benefit requests. USCIS accepts credit card payments made in person at all domestic field offices that accept payments.84 USCIS began allowing credit card payments for paper-filed Applications for Naturalization, Forms N–400, on September 19, 2015.85 Currently, this is the only immigration benefit that can be paid for with a credit card when filed by mail. USCIS also accepts credit card payments for immigration benefit requests made through the electronic immigration system. DHS made no changes in this final rule as a result of these comments. Nonetheless, in the future, USCIS will allow credit cards payments for all immigration benefit request fees when they are filed at a Lockbox facility as 83 Available at https://travel.state.gov/content/ visas/en/law-and-policy/bulletin/2016/visabulletin-for-october-2015.html. 84 See U.S. Citizenship and Immigration Services, Paying Immigration Fees (7/7/2014), available at https://www.uscis.gov/forms/paying-immigrationfees. 85 See USCIS to Welcome More Than 36,000 Citizens During Annual Constitution Day and Citizenship Day Celebrations (9/17/2015), available at https://www.uscis.gov/news/news-releases/usciswelcome-more-36000-citizens-during-annualconstitution-day-and-citizenship-day-celebrations. PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 73315 soon as this capability can be made available. V. Statutory and Regulatory Reviews A. Regulatory Flexibility Act—Final Regulatory Flexibility Analysis In accordance with the Regulatory Flexibility Act (RFA), 5 U.S.C. 601(6), DHS examined the impact of this rule on small entities. A small entity may be a small business (defined as any independently owned and operated business not dominant in its field that qualifies as a small business per the Small Business Act, 15 U.S.C. 632), a small not-for-profit organization, or a small governmental jurisdiction (locality with fewer than 50,000 people). Below is a summary of the small entity analysis. A more detailed analysis is available in the rulemaking docket at http://www.regulations.gov. Individuals rather than entities submit the majority of immigration and naturalization benefit applications and petitions. Entities that will be affected by this rule are those that file and pay the fees for certain immigration benefit applications and petitions. There are four categories of benefits that DHS analyzed in the Initial Regulatory Flexibility Analysis (IRFA) for this rule: Petition for a Nonimmigrant Worker, Form I–129; Immigrant Petition for an Alien Worker, Form I–140; Application for Civil Surgeon Designation, Form I– 910; and the Application for Regional Center Designation Under the Immigrant Investor Program, Form I–924.86 Additionally, DHS has analyzed as part of the following Final Regulatory Flexibility Analysis (FRFA) requests related to genealogy information, Forms G–1041 and G–1041A, and the Petition for Amerasian Widow(er) or Special Immigrant, Form I–360, in response to public comment on the impact to small entities that file these forms. Following the review of available data, DHS does not believe that the increase in fees in this final rule will have a significant economic impact on a substantial number of small entities that are filing Form I–129, Form I–140, or Form I–910. However, DHS does not have sufficient data on the revenue collected through administrative fees by regional centers to definitively determine the economic impact on small entities that may file Form I–924. DHS also does not have sufficient data on the requestors that file genealogy forms to determine whether such filings were made by entities or individuals, 86 Also captured in the dataset for Form I–924 is the Supplement Form I–924A, which regional centers must file annually to certify their continued eligibility for regional center designation. E:\FR\FM\24OCR4.SGM 24OCR4 73316 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations and thus is unable to determine if the fee increase for genealogy searches is likely to have a significant economic impact on a substantial number of small entities. Finally, DHS has added in this FRFA an analysis of the effects on small entities from the fee increase for Form I–360 and does not believe that the increase in fees will have a significant economic impact on these small entities. DHS is publishing this FRFA to respond to public comments, and provide further information on the likely impact of this rule on small entities. sradovich on DSK3GMQ082PROD with RULES4 1. A Statement of the Need for, and Objectives of, the Rule DHS issues this final rule consistent with INA section 286(m),87 which authorizes DHS to charge fees for adjudication and naturalization services at a level to ‘‘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,’’ and the CFO Act,88 which requires each agency’s CFO to review, on a biennial basis, the fees imposed by the agency for services it provides, and to recommend changes to the agency’s fees. DHS is adjusting the fee schedule for DHS immigration and naturalization benefit applications after conducting a comprehensive fee review for the FY 2016/2017 biennial period and determining that current fees do not recover the full costs of services provided. DHS has determined that adjusting the fee schedule is necessary to fully recover costs and maintain adequate service. 2. A Statement of the Significant Issues Raised by the Public Comments in Response to the Initial Regulatory Flexibility Analysis, A Statement of the Assessment of the Agency of Such Issues, and A Statement of Any Changes Made in the Proposed Rule as a Result of Such Comments DHS published the NPRM along with the IRFA on May 4, 2016 (81 FR 26903) with the comment period ending July 6, 2016. During the 60-day comment period, DHS received 475 comments from interested individuals and organizations. DHS received several comments that directly or indirectly referred to aspects of the small entity analysis or IRFA presented with the 87 See 88 See 8 U.S.C. 1356(m). 31 U.S.C. 901–03. VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 NPRM. The comments, however, did not result in any major revisions to the small entity analysis in this final rule that are relevant to the effects on small businesses, small organizations, and small governmental jurisdictions presented in this FRFA. DHS summarizes and responds to these comments in this Final Rule. a. Comments on Form I–129 One commenter wrote about the 42percent increase ($135) of the fee for the Petition for a Nonimmigrant Worker, Form I–129. The commenter explained that such a significant increase in visa fees for H–2A category visas for temporary agricultural workers will negatively affect the ability of both large and small farmers to use those visas to ensure a sufficient and stable work force. Form I–129, which is used to petition for H–2A workers, is often used by a large and an increasing portion of small business employers according to this commenter. The commenter discussed the impact this 42-percent increase has on an employer hiring only one employee compared to an employer hiring 100 employees. This commenter was especially concerned with the impact of this rule on smaller farmers, many of whom petition for 1 to 5 workers, but whose farming operations could not continue without these workers. This commenter also stated that the impact of the rule on small entities was not quantitatively considered and/or disclosed. Several other commenters wrote about the fee increase for Form I–129 and its impact on small entities in terms of small traveling musicians that cross over the border, particularly those along the United States and Canadian border. The commenters stated that these musicians routinely perform in small venues or small festivals and it currently takes about 3 separate performances to recoup the expenses of the current fee for Form I–129. The commenters stated that this increase in fees presents considerable hardship for these small performers and also compromises the ability to organize small tours that would result in breakeven revenues. Other commenters also wrote about the increase for Form I–129 and its impact on small religious orders and communities who petition for foreignborn religious workers. The commenters stated that this increase is particularly burdensome since extensions have to PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 continually be filed for work authorizations as well. They noted that these added costs impact smaller parishes and lower-income neighborhoods disproportionately. In addition to the fee increases for Form I– 129, these commenters also expressed similar concern for Forms I–360 and I– 485. DHS respectfully disagrees with the commenter who stated that the impact of the rule on small entities was not quantitatively considered and/or disclosed. DHS used recent data to examine the direct impacts to small entities for Forms I–129, I–140, I–910, and I–924. DHS prepared an IRFA that complied with the Regulatory Flexibility Act (RFA) and that was published with the NPRM. DHS also published a more comprehensive small entity analysis of the potential impact of the Form I–129 fee increase on www.regulations.gov in the docket for this rule along with other supporting documentation. DHS has also added an analysis of Forms G–1041, G–1041A, and I–360 in this FRFA in response to public comments. In terms of the range for Form I–129, among the 284 small entities with reported revenue data identified in the small entity analysis, all experienced an economic impact of considerably less than 1.0 percent of revenue in the analysis, with the exception of two entities. Using the methodology described in the comprehensive small entity analysis, the greatest economic impact imposed by this fee change totaled 2.55 percent. This small entity with the highest economic impact imposed by the fee increase is in the theater companies and dinner theaters industry, which submitted 18 of the total 482,190 Form I–129 petitions in the 12-month period analyzed. The small entity with the second highest economic impact (2.05 percent) imposed by the fee increase is in the custom computer programming services industry, which submitted 50 of the total 482,190 Form I–129 petitions. DHS notes that out of the 10 small entities that face the highest economic impact due to this fee increase, a majority are in industries that are not related to musicians, farmers, or religious organizations. Table 2 shows the industry in which these top 10 impacted small entities belong, as well as the number of petitions submitted by each entity. E:\FR\FM\24OCR4.SGM 24OCR4 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations 73317 TABLE 2—FORM I–129 NAICS INDUSTRY OF THE SMALL ENTITIES WITH THE HIGHEST ECONOMIC IMPACT IMPOSED BY THE FEE INCREASE * Number of petitions submitted NAICS Industry Theater Companies and Dinner Theaters ............................................................................................................... Custom Computer Programming Services .............................................................................................................. All Other Business Support Services ...................................................................................................................... Dance Companies ................................................................................................................................................... Other Scientific and Technical Consulting Services ............................................................................................... Computer Systems Design Services ....................................................................................................................... All Other Business Support Services ...................................................................................................................... Custom Computer Programming Services .............................................................................................................. All Other Business Support Services ...................................................................................................................... All Other Business Support Services ...................................................................................................................... 18 50 2 4 7 2 1 3 2 2 Economic impact on entity’s revenue imposed by fee increase (percent) 2.55 2.05 0.90 0.90 0.53 0.46 0.45 0.37 0.34 0.34 Source: DHS, USCIS, Office of Performance and Quality. * North American Industry Classification System (NAICS). DHS also analyzed the 284 small entities with reported revenue data in our sample of Form I–129 petitions to see how many small entities were specifically in NAICS codes related to musicians, farmers, or religious organizations. Of these small entities, a total of 26 small entities were found in one of these related NAICS, 3 of the small entities were in the agricultural industry; 8 small entities were in the performing arts, spectator sports, and related industries; and 15 small entities were religious organizations. Looking only at this subset of 26 entities, only one small entity had an economic impact above 1 percent with one other small entity just under 1 percent, both of which were in the performing arts industries. The 24 other small entities in these categories had economic impacts that were well below 1 percent. Twelve of these small entities had an economic impact between 0.34 percent and 0.10 percent, while the remaining 12 small entities had economic impacts below 0.10 percent. Therefore, while DHS sympathizes with small farmers, small traveling musicians, and small religious entities, the evidence suggests that the additional fee imposed by this rule does not represent a significant economic impact on most of these types of entities. b. Comments on Forms I–360 and I–485 DHS also received comments about the impact of this rule on small religious organizations who file on behalf of religious workers utilizing Forms I–485 and I–360. Form I–485, Application to Register Permanent Residence or Adjust Status, was not considered in this small entity analysis because it is submitted by individuals seeking to receive benefits, not entities. DHS selected forms that are filed by entities for the small entity analysis in the NPRM. DHS recognizes, however, that entities may also file the Petition for Amerasian, Widow(er), or Special Immigrant, Form I–360, on behalf of a religious worker and acknowledges it is appropriate to include Form I–360 in the small entity analysis for the final rule. The fee for Form I–360 will increase from $405 to $435, a $30 (7 percent) increase. DHS was able to obtain internal data on petitioners who file Form I–360 for Special Immigrant Religious Workers provided by the Office of Performance and Quality for this final rule. There were a total of 4,399 religious foreign worker Form I– 360 petitions submitted in FY 2015 by 1,890 unique entities. Of these 1,890 unique entities, approximately 96 percent were churches, mosques, synagogues, temples, or other places of worship. Due to the overwhelming number of entities that were places of worship and therefore, likely designated as non-profit organizations, DHS assumed that all 1,890 entities are small. Of the unique entities, about 51 percent of entities had submitted just one petition in the FY 2015 (Table 3). Over 83 percent submitted only one or two petitions. At the other end of scale, only about half a percent of entities submitted more than 20 petitions. An average of 2.4 petitions per entity was submitted in FY 2015. Based on a $30 increase in fees per petition for Form I– 360, the average additional cost to these entities is $72.89 TABLE 3—FORM I–360 PETITIONS PER ENTITY sradovich on DSK3GMQ082PROD with RULES4 Petitions per entity Percentage of total (percent) Entities 1 ................................................................................................................................................... 2 ................................................................................................................................................... 3 ................................................................................................................................................... 4 ................................................................................................................................................... 5 ................................................................................................................................................... 6 to 10 .......................................................................................................................................... 11 to 20 ........................................................................................................................................ 21 to 50 ........................................................................................................................................ 959 617 91 78 21 87 30 5 89 Calculation: 2.4 average petitions per entity × $30 increase in fees = $72 average additional cost to entities. VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\24OCR4.SGM 24OCR4 50.7 32.6 4.8 4.1 1.1 4.6 1.6 0.3 Cumulative percentage (percent) 50.7 83.3 88.2 92.3 93.4 98.0 99.6 99.9 73318 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations TABLE 3—FORM I–360 PETITIONS PER ENTITY—Continued Petitions per entity Percentage of total (percent) Entities 51+ ............................................................................................................................................... 2 0.1 Total ...................................................................................................................................... 1,890 Cumulative percentage (percent) 100.0 100.0 Source: DHS, USCIS, Office of Performance and Quality. DHS also analyzed the costs imposed by this rule on the petitioning entities relative to the costs of the typical employee’s salary. Guidelines suggested by the Small Business Administration (SBA) Office of Advocacy indicate that the impact of a rule could be significant if the cost of the regulation exceeds 5 percent of the labor costs of the entities in the sector.90 According to the Bureau of Labor Statistics (BLS), the mean annual salary is $48,150 for clergy,91 $45,160 for directors of religious activities and education,92 and $35,160 for all other religious workers.93 Based on an average of 2.4 religious workers petitioned-for per entity, the additional average annual cost will be $72 per entity.94 Thus, the additional costs per entity imposed by this rule represent only 0.15 percent of the average salary for clergy, 0.16 percent of the average salary for directors of religious of activities and education, and 0.20 percent of the average salary for all other religious workers. Therefore, using average annual labor cost guidelines, the additional regulatory compliance costs imposed by this rule are not significant. c. Comments on Forms G–1041 and G– 1041A Several commenters also expressed concern about the impact the proposed increase in fees related to genealogy searches would have on individual businesses. The commenters stated that such large increases in fees would be prohibitive to many individual genealogists that submit requests. Some commenters suggested that the fee increase should be phased-in over several years to help mitigate the impact of this total cost increase. DHS appreciates the comments on the impact this fee increase will have on the individual businesses who request information from the genealogy program. The fee for Genealogy Index Search Request, Form G–1041, will increase from $20 to $65 (a 225 percent increase). The fee for Genealogy Index Search Request, Form G–1041, will increase from $20 to $65 (a 225 percent increase). Currently there are two fees for the Genealogy Records Request, Form G–1041A; the appropriate fee depends on whether the filing requests copies from microfilm (currently $20) or copies from textual records (currently $35). The new fee for Form G–1041A will increase to $65, regardless of the type of media involved. This represents a fee increase of 86 to 225 percent over current fee levels. Based on DHS records related to the genealogy program, an average of 4,022 Index Search requests and 2,166 Records requests were made annually over the 4 calendar year span from 2012 to 2015 (Table 4). However, DHS does not have sufficient data on these requests to determine whether they were submitted by entities or individuals. Additionally, DHS cannot break out how many Genealogy Records Requests are copies from microfilm or from textual records. The case management tracking system used by DHS for these genealogy requests does not allow for requestor data to be readily pulled, nor does it allow for a break out in the Form G–1041A requests by record type. TABLE 4—GENEALOGY FORM RECEIPTS [Calendar Year] Form Type 2012 Genealogy Index Search Request, Form G–1041 .............. Genealogy Records Request, Form G–1041A .................... 2013 3361 2066 2014 3662 2219 2015 4167 2036 Average 4897 2344 4022 2166 Source: DHS, USCIS, Immigration Records and Identity Services Directorate. sradovich on DSK3GMQ082PROD with RULES4 DHS has previously determined that requests for historical records are usually made by individuals.95 If professional genealogists and researchers submitted such requests in the past, they did not identify themselves as commercial requesters and thus could not be segregated in the data. Genealogists typically advise clients on how to submit their own requests. For those that submit requests on behalf of clients, DHS does not know the extent to which they can pass along the fee increases to their individual clients. Therefore, DHS does not currently have sufficient data to definitively assess the impact on small entities for these requests. DHS has decided to recover the full cost of the genealogy program from the genealogy program fees. As previously stated in this final rule, reducing the filing fee for any one benefit request submitted to DHS simply transfers the additional cost to process this request to other immigration and naturalization filing fees. Furthermore, DHS is not able 90 Office of Advocacy, Small Business Administration, ‘‘A Guide for Government Agencies, How to Comply with the Regulatory Flexibility Act’’: https://www.sba.gov/sites/default/ files/rfaguide_0512_0.pdf. 91 Bureau of Labor Statistics, U.S. Department of Labor, ‘‘Occupational Employment Statistics, May 2015, ‘‘Clergy’’: http://www.bls.gov/oes/current/ oes212011.htm. 92 Bureau of Labor Statistics, U.S. Department of Labor, ‘‘Occupational Employment Statistics, May 2015, ‘‘Directors of Religious Activities and Education’’: http://www.bls.gov/oes/current/ oes212021.htm. 93 Bureau of Labor Statistics, U.S. Department of Labor, ‘‘Occupational Employment Statistics, May 2015, ‘‘Religious Workers, All Other’’: http:// www.bls.gov/oes/current/oes212099.htm. 94 Calculation: 2.4 average petitions per entity × $30 new petition fee = $72 additional total cost per entity. 95 See ‘‘Establishment of a Genealogy Program; Proposed Rule,’’ 8 CFR 103, 299 (Apr. 20, 2006), available at https://www.regulations.gov/document ?D=USCIS-2006-0013-0001. VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\24OCR4.SGM 24OCR4 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations to accommodate a phased-in approach of costs over several years due to the statutory guidelines on how DHS is able to increase its fees. sradovich on DSK3GMQ082PROD with RULES4 d. Comments on Form I–924A One commenter indicated that fees for the new Form I–924A would create particular burdens on regional centers with less than 30 investors. The new fee for the annual filings of Supplement Form I–924A is $3,035. As discussed in the small entity analysis of this final rule, while DHS cannot definitively claim that there is no significant economic impact to these small entities based on existing information at the time of this final rule, DHS would assume existing regional centers that have revenues equal to or less than $303,500 per year 96 (some of which DHS assumes would be derived from administrative fees charged to individual investors) could experience a significant economic impact if DHS assumes a fee increase that represents 1 percent of annual revenue is a ‘‘significant’’ economic burden under the RFA. DHS also assumes newly designated regional centers that have revenues equal to or less than $1,779,500 per year 97 could also experience a significant impact. Searching through several public Web sites, DHS gathers that administrative fees charged to investors could range between $30,000 and $100,000 per investor.98 DHS was able to obtain some sample data on 440 regional centers operating 5,886 projects. These 5,886 projects had a total of 54,506 investors, averaging 124 investors per regional center.99 Assuming an average of 124 investors is a representative proxy for regional centers, and that $30,000 is the minimum administrative fee charged by regional centers, then such fees would represent approximately $3,720,000 in revenue. In that case, DHS expects that the proposed filing fee increase for Form I–924 and the creation of a new fee for Form I–924A would not cause a significant economic impact to these entities. DHS does not currently have information on how many regional 96 Calculation: 1 percent of $303,500 = $3,035 (the new proposed fee for Form I–924A). 97 Calculation: 1 percent of $1,779,500 = $17,995 (the new proposed fee for Form I–924). 98 Yen, Christine et al., ‘‘A Report on Source of Funds: Perils of the Administrative Fee.’’ EB5 Investors Magazine (Aug. 20, 2015), available at: http://www.eb5investors.com/magazine/article/AReport-on-Source-of-Funds; see also Green, Merritt. ‘‘The Costs of an EB–5 Regional Center Project Investment.’’ (June 27, 2014), available at: http:// www.generalcounsellaw.com/the-cost-of-an-eb-5regional-center-project-investment/. 99 Department of Homeland Security, USCIS, Immigrant Investor Program Office. VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 centers may have 30 or fewer investors. However, DHS expects that the fee for the annual filing of Form I–924A is greater than 1 percent of annual revenue for only those regional centers with 10 or fewer investors.100 Regional centers with 11 or more investors are not likely to experience a significant economic impact due to this rule. While DHS cannot definitively state the number of regional centers that have fewer than 10 investors, we do not believe it is a substantial number of regional centers. 3. The Response of the Agency to Any Comments Filed by the Chief Counsel for Advocacy of the Small Business Administration in Response to the Proposed Rule, and a Detailed Statement of Any Change Made to the Proposed Rule in the Final Rule as a Result of the Comments No comments were filed by the Chief Counsel for Advocacy of SBA. 4. A Description of and an Estimate of the Number of Small Entities To Which the Rule Will Apply or an Explanation of Why No Such Estimate is Available Entities affected by this final rule are those that file and pay fees for certain immigration benefit applications and petitions on behalf of a foreign national. These applications include Petition for Nonimmigrant Worker, Form I–129; Immigrant Petition for Alien Worker, Form I–140; Civil Surgeon Designation, Form I–910; Application for Regional Center Designation Under the Immigrant Investor Program, Form I–924; and Petition for Amerasian, Widow(er), or Special Immigrant, Form I–360. Annual numeric estimates of small entities affected by this fee increase total (in parentheses): Form I–129 (70,211), Form I–140 (17,812), Form I–910 (589), Form I–924 (412), and Form I–360 (1,890). This rule applies to small entities including businesses, not-for-profit organizations, and governmental jurisdictions filing for the above benefits. Form I–129 and Form I–140 will see a number of industry clusters affected by this rule (see Appendix A of the Small Entity Analysis for a list of affected industry codes). Of the total 444 small entities in the sample for Form I– 129, most entities were small businesses (401), with 41 small not-for-profit entities and only 2 small governmental jurisdictions. Similarly, of the total 393 small entities in the sample for Form I– 140, most entities were small businesses (364), with 26 small not-for-profit entities and 3 small governmental jurisdictions. The fee for the 100 Assuming $30,000 administrative fee × 10 investors = $300,000 regional center revenue. PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 73319 Application for Civil Surgeon Designation, Form I–910, will apply to physicians requesting such designation. There were 322 small entities in the sample for Form I–910, consisting of two small governmental jurisdictions and 320 small entities that were either small businesses or small not-for-profits. DHS was unable to further break down the composition of small entities between small businesses and small notfor-profits due to difficulties in determining the structure of these small entities. The Form I–924 will apply to any entity requesting approval and designation as a regional center under the Immigrant Investor Program or filing an amendment to an approved regional center application. Also captured in the dataset for Form I–924 is the Supplement Form I–924A, which regional centers must file annually to certify their continued eligibility for regional center designation. The Form I– 360 will apply to any entity petitioning on behalf of a religious worker. DHS does not have sufficient data on the requestors for the genealogy forms, Forms G–1041 and G–1041A, to determine if entities or individuals submitted these requests. DHS has previously determined that requests for historical records are usually made by individuals.101 If professional genealogists and researchers submitted such requests in the past, they did not identify themselves as commercial requesters and thus could not be segregated in the data. Genealogists typically advise clients on how to submit their own requests. For those that submit requests on behalf of clients, DHS does not know the extent to which they can pass along the fee increases to their individual clients. Therefore, DHS does not currently have sufficient data to definitively assess the estimate of small entities for these requests. a. Petition for a Nonimmigrant Worker, Form I–129 The fee for the Petition for a Nonimmigrant Worker, Form I–129, will increase from $325 to $460, a $135 (42 percent) increase. DHS used a 12-month period of data on filings of Form I–129 from September 1, 2014 to August 31, 2015, to collect internal data for each filing organization including the name, Employer Identification Number, city, state, ZIP Code, and number/type of filings. Each entity may make multiple filings; for instance, there were 482,190 Form I–129 petitions, but only 84,490 101 See ‘‘Establishment of a Genealogy Program; Proposed Rule,’’ 8 CFR 103, 299 (Apr. 20, 2006), available at: https://www.regulations.gov/document ?D=USCIS-2006-0013-0001. E:\FR\FM\24OCR4.SGM 24OCR4 sradovich on DSK3GMQ082PROD with RULES4 73320 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations unique entities that filed those petitions. Since the filing statistics do not contain information such as the revenue of the business, DHS looked for this information by researching databases from third-party sources. DHS used the subscription-based online database from Hoover’s, as well as three open-access databases from Manta, Cortera, and Guidestar, to help determine an organization’s small entity status and apply SBA size standards. DHS devised a methodology to conduct the small entity analysis based on a representative sample of the affected population for each form. To achieve a 95 percent confidence level and a 5 percent confidence interval on a population of 84,490 unique entities for Form I–129, DHS used the standard statistical formula to determine a minimum sample size of 382 entities was necessary. Based on past experience, DHS expected to find about 40 to 50 percent of the filing organizations in the online subscription and public databases. Accordingly, DHS selected a sample size approximately 40 percent larger than the minimum necessary in order to allow for nonmatches (filing organizations that could not be found in any of the four databases). Therefore, DHS conducted searches on 534 randomly selected entities from the population of 84,490 unique entities for Form I–129. The 534 searches for Form I–129 resulted in 444 small entities, 287 of which were determined to be small entities based on their reported revenue or employee count and their NAICS code. Combining non-matches (130), matches missing data (27), and small entity matches (287), enables us to classify 444 of the 534 entities as small for Form I–129. With an aggregated total of 444 out of a sample size of 534 entities searched, DHS inferred that a majority, or 83.1 percent, of the entities filing Form I–129 petitions during the period were small entities. Furthermore, 284 of the 534 entities searched were small entities with the sales revenue data needed to estimate the economic impact of the rule. Because these 284 small entities were a subset of the random sample of 534 searches, they were statistically significant in the context of this research. In order to calculate the economic impact of this rule, DHS estimated the total costs associated with the fee increase annually for each entity, divided by the annual sales revenue of that entity.102 Based on the fee increase of $135 for Form I–129, this will amount 102 Total Cost to Entity = (Number of Petitions × $135)/Entity Sales Revenue. VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 to an average impact of 0.08 percent on all 284 small entities with reported revenue data. In terms of range, among the 284 small entities with reported revenue data, all experienced an economic impact of considerably less than 1.0 percent in the analysis, with the exception of two entities. Using the above methodology, the greatest economic impact imposed by this fee change totaled 2.55 percent and the smallest totaled 0.0001 percent. The evidence suggests that the additional fee imposed by this rule does not represent a significant economic impact on these entities. b. Immigrant Petition for an Alien Worker, Form I–140 The fee for the Immigrant Petition for an Alien Worker, Form I–140, will increase from $580 to $700, a $120 (21 percent) increase. Using a 12-month period of data on filings of Form I–140 petitions from September 1, 2014 to August 31, 2015, DHS collected internal data similar to that of Form I–129. There were 101,245 Form I–140 petitions, but only 23,284 unique entities that filed those petitions. Again, DHS used the third party sources of data mentioned previously to search for revenue and employee count information. DHS used the same methodology as with Form I–129 to conduct the small entity analysis based on a representative sample of the affected population. To achieve a 95 percent confidence level and a 5 percent confidence interval on a population of 23,284 unique entities for Form I–140, DHS used the standard statistical formula to determine that a minimum sample size of 378 entities was necessary. Again, based on past experience, DHS expected to find about 40 to 50 percent of the filing organizations in the online subscription and public databases. Accordingly, DHS oversampled in order to allow for nonmatches (filing organizations that could not be found in any of the four databases). DHS conducted searches on 514 randomly selected entities from the population of 23,284 unique entities for Form I–140. The 514 searches resulted in 430 instances where the name of the filing organization was successfully matched in the databases and 84 instances where the name of the filing organization was not found in the databases. Based on previous experience conducting regulatory flexibility analyses, DHS assumes filing organizations not found in the online databases are likely to be small entities. In order not to underestimate the number of small entities affected by this PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 rule, DHS makes the conservative assumption to consider all of the nonmatched entities as small entities for the purpose of this analysis. Among the 430 matches for Form I–140, 290 were determined to be small entities based on their reported revenue or employee count and their NAICS code. Combining non-matches (84), matches missing data (19), and small entity matches (290), enables us to classify 393 of 514 entities as small for Form I–140. With an aggregated total of 393 out of a sample size of 514 entities searched, DHS inferred that a majority, or 76.5 percent, of the entities filing Form I–140 petitions during the period were small entities. Furthermore, 287 of the 514 entities searched were small entities with the sales revenue data needed to estimate the economic impact of the rule. Because these 287 small entities were a subset of the random sample of 514 searches, they were statistically significant in the context of this research. Similar to the analysis involving Form I–129, DHS estimated the total costs associated with the Form I–140 fee increase annually for each entity, divided by the annual sales revenue of that entity in order to calculate the economic impact of this rule. Among the 287 small entities with reported revenue data, all experienced an economic impact considerably less than 1.0 percent in the analysis. Using the above methodology, the greatest economic impact imposed by this fee change totaled 0.68 percent and the smallest totaled 0.000002 percent. The average impact on all 287 small entities with revenue data was 0.04 percent. The evidence suggests that the additional fee imposed by this rule does not represent a significant economic impact on these entities. Additionally, DHS analyzed any cumulative impacts to small entities resulting from the fee increases to both Forms I–129 and I–140. DHS isolated those entities that overlapped in both samples of Forms I–129 and I–140 by Employer Identification Number (EIN). Only three entities had EINs that overlapped in both samples. Of these three entities, two of them were small entities and one was not a small entity. Only one entity submitted multiple Form I–129 petitions, while all three entities submitted multiple Form I–140 petitions. Due to little overlap in entities in the samples and the relatively minor impacts on revenue of fee increases of Forms I–129 and I–140, DHS does not expect the combined impact of these two forms to be an economically significant burden on a substantial number of small entities. E:\FR\FM\24OCR4.SGM 24OCR4 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES4 c. Application for Civil Surgeon Designation, Form I–910 The fee for the Application for Civil Surgeon Designation, Form I–910, will increase from $615 to $785, a $170 (28 percent) increase. Using a 12-month period of August 1, 2014 to July 31, 2015, DHS collected internal data on applicants of this form. There were 719 Form I–910 applications, but only 602 unique entities that filed such applications. Again, DHS used third party sources of data mentioned previously to search for revenue and employee count information. Using the same methodology employed with Forms I–129 and I–140, DHS conducted the small entity analysis based on a representative sample, with a 95 percent confidence level and a 5 percent confidence interval, of the population of 602 unique entities for Form I–910. DHS determined that a minimum sample size of 235 entities was necessary. DHS oversampled and conducted searches on 329 randomly selected entities for Form I–910. The 329 searches for Form I–910 resulted in 252 instances in which the name of the filing organization was successfully matched in the databases and 77 instances in which the name of the filing organization was not found in the databases. DHS assumed again that filing organizations not found in the online databases are likely to be small entities, so DHS considered all of the non-matched entities as small entities for the purpose of this analysis. Among the 252 matches for Form I–910, 240 were determined to be small entities based on their reported revenue or employee count and their NAICS code. Combining non-matches (77), matches missing data (5), and small entity matches (240), DHS classified 322 of 329 entities as small for Form I–910. With an aggregated total of 322 out of a sample size of 329 entities searched, DHS inferred that a majority, or 97.9 percent, of the entities filing Form I–910 applications were small entities. Furthermore, 238 of the 329 entities searched were small entities with the sales revenue data needed in order to estimate the economic impact of the rule. Because these 238 small entities were a subset of the random sample of 329 searches, they were statistically significant in the context of this research. Similar to the analysis involving Forms I–129 and I–140, DHS estimated the total costs associated with the Form I–910 fee increase for each entity. Among the 238 small entities with reported revenue data, all experienced an economic impact considerably less VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 than 1.0 percent in the analysis. The greatest economic impact imposed by this fee change totaled 0.61 percent and the smallest totaled 0.00002 percent. The average impact on all 238 small entities with revenue data was 0.09 percent. The evidence suggests that the additional fee imposed by this rule does not represent a significant economic impact on these entities. d. Regional Center Designation Under the Immigrant Investor Program, Forms I–924 and I–924A Congress created the EB–5 Program in 1990 under section 203(b)(5) of the INA to stimulate the U.S. economy through job creation and capital investment by foreign investors. Foreign investors have the opportunity to obtain LPR status in the United States for themselves, their spouses, and their minor unmarried children through a certain level of capital investment and associated job creation or preservation. There are two distinct EB–5 pathways for a foreign investor to gain LPR status: The Basic Program and the Regional Center Program. Both options require a capital investment from the foreign investor in a new commercial enterprise located within the United States. The capital investment amount is generally set at $1,000,000, but may be reduced to $500,000 if the investment is made in a ‘‘Targeted Employment Area.’’ A regional center is an economic entity, public or private, that promotes economic growth, regional productivity, job creation, and increased domestic capital investment. Regional centers pool funds into development loans or equity for commercial and real estate development projects. As of July 15, 2016, there were 847 DHS-approved regional centers.103 Entities seeking designation as regional centers file Form I–924 along with supporting materials. Approved regional centers are currently required to file the Supplement to Form I–924, Form I–924A, on an annual basis to demonstrate continued eligibility for regional center designation. DHS is proposing to change the name of the Form I–924A annual filing to ‘‘Annual Certification of Regional Center.’’ DHS is increasing the fee for the Application for Regional Center Designation Under the Immigrant Investor Program, Form I–924, from $6,230 to $17,795, an $11,565 (186 percent) increase. Additionally, DHS introduces a filing fee of $3,035 for Form I–924A. In establishing this fee, 103 USCIS Immigrant Investor Regional Centers: http://www.uscis.gov/working-united-states/ permanent-workers/employment-basedimmigration-fifth-preference-eb-5/immigrantinvestor-regional-centers#table. PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 73321 DHS is also clarifying the related regulations that provide for the annual regional center review related to Form I–924A. Currently, there is no procedure for regional centers seeking to withdraw their designation and discontinue their participation in the program. Formal termination is currently processed by DHS issuing a Notice of Intent to Terminate and a subsequent termination notice. The withdrawal procedure will allow a regional center to proactively request withdrawal without the need for the more formal notices sent out by DHS. This procedure will reduce administrative costs and time for the Department, while timely clarifying status to the requesting regional center. Over a 13-month period of August 1, 2014 through August 31, 2015, DHS received a total of 412 Form I–924 applications.104 These applications include the request for newly designated regional centers, as well as requests for continued designation for existing regional centers. DHS was not able to determine the numbers of regional centers that are considered small entities. Regional centers are difficult to assess because there is a lack of official data on employment, income, and industry classification for these entities. Regional centers also pose a challenge for analysis as their structure is often complex and can involve many related business and financial activities not directly involved with EB–5 activities. Regional centers can be made up of several layers of business and financial activities that focus on matching foreign investor funds to development projects to capture above market return differentials. While DHS attempted to treat the regional centers similar to the other entities in this analysis, we were not able to identify most of the entities in any of the online databases. Furthermore, while regional centers are an integral component of the EB–5 program, DHS does not collect data on the administrative fees the regional centers charge to the foreign investors who are investing in one of their projects. DHS did not focus on the bundled capital investment amounts (either $1 million or $500,000 per investor) that the regional center invests into a new commercial enterprise. Such investment amounts are not necessarily indicative of whether the regional center is appropriately characterized as a small entity for purposes of the RFA. Due to the lack of regional center revenue data, DHS assumes regional centers collect revenue through the 104 Supplemental Form I–924A (Supplement to Form I–924) is captured in this dataset. E:\FR\FM\24OCR4.SGM 24OCR4 73322 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations administrative fees charged to investors. Searching through several public Web sites, DHS gathers that administrative fees charged to investors could range between $30,000 and $100,000 per investor.105 DHS assumes administrative fees charged to investors are $30,000 per investor for the purposes of this analysis. DHS does not know the extent to which these regional centers can pass along fee increases to individual investors. Passing along the costs from this rule could reduce or eliminate the economic impacts to the regional centers. While DHS cannot definitively state there is no significant economic impact to these small entities based on existing information, DHS assumes existing regional centers that have revenues equal to or less than $303,500 per year 106 (some of which we assume will be derived from administrative fees charged to individual investors) could experience a significant economic impact if we assume a fee increase that represents 1 percent of annual revenue is a ‘‘significant’’ economic burden under the RFA. DHS also assumes newly designated regional centers that have revenues equal to or less than $1,779,500 per year 107 could also experience a significant impact. DHS was able to obtain some sample data on 440 regional centers operating 5,886 projects. These 5,886 projects had a total of 54,506 investors, averaging 124 investors per regional center.108 Assuming an average of 124 investors is a representative proxy of the regional centers, and that $30,000 is the minimum administrative fee charged by regional centers, then such fees will represent approximately $3.7 million in revenue. In that case, DHS expects that the filing fee increase for Form I–924 and the creation of a new fee for Form I–924A will not cause a significant economic impact to these entities. sradovich on DSK3GMQ082PROD with RULES4 e. Petition for Amerasian, Widow(er), or Special Immigrant, Form I–360 As previously described in this analysis, the fee for Form I–360 will increase from $405 to $435, a $30 (7 105 See Yen, Christine et al., ‘‘A Report on Source of Funds: Perils of the Administrative Fee.’’ EB5 Investors Magazine (Aug. 20, 2015), available at: http://www.eb5investors.com/magazine/article/AReport-on-Source-of-Funds; see also Green, Merritt. ‘‘The Costs of an EB–5 Regional Center Project Investment.’’ (June 27, 2014), available at: http:// www.generalcounsellaw.com/the-cost-of-an-eb-5regional-center-project-investment/. 106 Calculation: 1 percent of $303,500 = $3,035 (the new fee for Form I–924A). 107 Calculation: 1 percent of $1,779,500 = $17,995 (the new fee for Form I–924). 108 DHS, USCIS, Immigrant Investor Program Office. VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 percent) increase. DHS was able to obtain internal data for FY 2015 showing 1,890 unique entities submitted 4,399 Form I–360 petitions for religious workers. Of these 1,890 unique entities, approximately 96 percent were churches, mosques, synagogues, temples, or other places of worship, and DHS thus chose to consider all 1,890 entities to be small entities. Most entities only submitted 1 or 2 petitions. As previously described, DHS analysis showed that the costs per entity imposed by this rule represent only 0.15 percent of the average salary for clergy; 0.16 percent of the average salary for directors of religious of activities and education, and 0.20 percent of the average salary for all other religious workers. As all of these are under the 5 percent average annual labor cost SBA guidelines, DHS determined that the additional regulatory costs imposed by this rule are not significant. 5. A Description of the Projected Reporting, Recordkeeping and Other Compliance Requirements of the Rule, Including an Estimate of the Classes of Small Entities Which Will Be Subject to the Requirement and the Type of Professional Skills Necessary for Preparation of the Report or Record This final rule imposes higher fees for filers of Forms I–129, I–140, I–910, I– 924, I–924A, and I–360. The new fee structure, as it applies to the small entities outlined above, results in the following fees: Form I–129 ($460), Form I–140 ($700), Form I–910 ($785), Form I–924 ($17,795), Form I–924A ($3,035), and Form I–360 ($435). This final rule does not require any new professional skills for reporting. 6. A Description of the Steps the Agency Has Taken To Minimize the Significant Economic Impact on Small Entities Consistent With the Stated Objectives of Applicable Statutes, Including a Statement of the Factual, Policy, and Legal Reasons for Selecting the Alternative Adopted in the Final Rule and Why Each One of the Other Significant Alternatives to the Rule Considered by the Agency Which Affect the Impact on Small Entities Was Rejected The INA 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 applicants. In addition, DHS must fund the costs of providing services without charge by using a portion of the filing fees PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 collected for other immigration benefits. Without an increase in fees, DHS will not be able to maintain the level of service for immigration and naturalization benefits that it now provides. DHS has considered the alternative of maintaining fees at the current level with reduced services and increased processing times, but has determined that this will not be in the interest of applicants and petitioners. Therefore, this alternative was rejected. While most immigration benefit fees apply to individuals, as described previously, some also apply to small entities. DHS seeks to minimize the impact on all parties, but in particular small entities. Another alternative to the increased economic burden of the fee adjustment is to maintain fees at their current level for small entities. The strength of this alternative is that it assures that no additional fee-burden is placed on small entities; however, small entities will experience negative effects due to the service reductions that will result in the absence of the fee adjustments in this final rule. Without the fee adjustments provided in this rule, significant operational changes to DHS would be necessary. Given current filing volume and other economic considerations, DHS requires additional revenue to prevent immediate and significant cuts in planned spending. These spending cuts would include reductions in areas such as Federal and contract staff, infrastructure spending on information technology and facilities, and training. Depending on the actual level of workload received, these operational changes would result in longer processing times, a degradation in customer service, and reduced efficiency over time. These cuts would ultimately represent an increased cost to small entities by causing delays in benefit processing and reductions in customer service. B. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (UMRA) requires certain actions to be taken before an agency promulgates any notice of rulemaking ‘‘that is likely to result in promulgation of any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year.109 While this rule may result in the expenditure of more than $100 million by the private sector annually, the rulemaking is not a ‘‘Federal 109 See E:\FR\FM\24OCR4.SGM 2 U.S.C. 1532(a). 24OCR4 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations mandate’’ as defined for UMRA purposes,110 as the payment of immigration benefit fees by individuals or other private sector entities is, to the extent it could be termed an enforceable duty, one that arises from participation in a voluntary Federal program, applying for immigration status in the United States.111 Therefore, no actions were deemed necessary under the provisions of the UMRA. C. Small Business Regulatory Enforcement Fairness Act This rulemaking is a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rulemaking will result in an annual effect on the economy of more than $100 million (adjusted annually for inflation) in order to generate the revenue necessary to fully fund all adjudication and naturalization services. The increased costs will be recovered through the fees charged for various immigration benefit requests. As small businesses may be impacted under this regulation, DHS has prepared a RFA analysis. D. Congressional Review Act The Congressional Review Act 112 requires rules to be submitted to Congress before taking effect. DHS will submit a report regarding the issuance of this final rule before its effective date, as required by 5 U.S.C. 801 to Congress and the Comptroller General of the United States. This rule is deemed a major rule and will therefore have a 60day delayed effective date. E. Executive Orders 12866 and 13563 (Regulatory Planning and Review) 1. Background and Purpose of the Final Rule Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available alternatives, and if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule has been designated an ‘‘economically significant regulatory action’’ under section 3(f)(1) of Executive Order 12866. Accordingly, OMB has reviewed this final rule. DHS projects an annual budget of $3.038 billion in FY 2016/2017, a $767 million (34 percent) increase over the FY 2010/FY 2011 fee review-adjusted annual budget of $2.271 billion. This final rule is estimated to provide DHS with an average of $546 million in annual fee revenue above the FY 2010/ FY 2011 levels, based on a projected annual fee-paying volume of 4.9 million immigrant benefit requests and 2.6 73323 million requests for biometric services.113 DHS will use this increase in revenue under subsections 286(m) and (n) of the INA, 8 U.S.C. 1356(m) and (n), to fund the full costs of processing immigration benefit requests and associated support benefits; the full cost of providing similar benefits to asylum and refugee applicants at no charge; and the full cost of providing similar benefits to others at no charge. If DHS does not adjust the current fees to recover the full costs of processing immigration benefit requests, it will be forced to make reductions in services provided to applicants and petitioners. These will reverse the considerable progress DHS has made over the last several years to reduce the backlogs of immigration benefit filings, to increase the integrity of the immigration benefit system, and to protect national security and public safety. The revenue increase is based on DHS costs and volume projections available at the time the rule was drafted. DHS has placed in the rulemaking docket a detailed analysis that explains the basis for the annual fee increase. DHS has included an accounting statement detailing the annualized impacts of the rule in Table 5 below. DHS makes a correction from the NPRM by adding in the opportunity costs of time for filing Form I–942 as discussed later in this analysis. Thus, DHS notes the higher cost in this final rule. TABLE 5—ACCOUNTING STATEMENT, FY 2016 THROUGH FY 2017 Category Primary estimate Benefits: Un-quantified Benefits ................................. Costs: Quantified Costs .......................................... Transfers: Annualized Monetized Transfers at 3 percent. Annualized Monetized Transfers at 7 percent. Maximum estimate Maintain current level of service with respect to processing times, customer service, and efficiency levels. $717,724 .......................................................... $717,724 546,429,650 ..................................................... 546,429,650 546,429,650 ..................................................... 546,429,650 Category Effects Source Effects on State, local, and/or tribal governments. For those state, local, and/or tribal governments that submit petitions for nonimmigrant and immigrant workers, they will face an increase in filing fees. For those small businesses that submit petitions for nonimmigrant and immigrant workers, they will face an increase in filing fees. Final Rule, Executive Order 12866/13563 Analysis. sradovich on DSK3GMQ082PROD with RULES4 Effects on small businesses ............................... 110 See 111 See 2 U.S.C. 658(6). 2 U.S.C. 658(7)(A)(ii). VerDate Sep<11>2014 18:32 Oct 21, 2016 112 See Jkt 214001 PO 00000 5 U.S.C. 801 et seq. Frm 00033 Fmt 4701 Sfmt 4700 Final Rule, Executive Order 12866/13563 Analysis, Small Entity Analysis. 113 This estimate is based on FY 2016/FY 2017 fee study volume projections. E:\FR\FM\24OCR4.SGM 24OCR4 73324 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations 2. Amendments and Impacts of Regulatory Change This rule is intended to adjust current fees to ensure that DHS is able to recover the full costs of the immigration services it provides and maintain adequate service.114 In addition to increasing fees, this final rule includes the following provisions: Provisions that DHS will reject an immigration benefit request paid with a dishonored check; provisions that DHS will reject an application that does not include the required biometric services fee; the institution of a reduced fee for the Application for Naturalization, Form N– 400; and provisions that DHS will provide fee refunds at its discretion. a. Dishonored Payments This final rule changes how DHS will treat a benefit request filing accompanied by fee payment (in the form of check or other financial instrument) that is subsequently returned as not payable.115 Current regulations provide that when a check or other financial instrument used to pay a filing fee is subsequently returned as not payable, the remitter will be notified and requested to pay the filing fee and associated service charge within 14 calendar days, without extension.116 If the benefit request is pending and these charges are not paid within 14 days, the benefit request will be rejected as improperly filed. In addition, a receipt issued by a DHS officer for any remittance will not be binding upon DHS if the remittance is found uncollectable, and legal and statutory deadlines will not be deemed to have been met if payment is not made within 10 business days after notification by DHS of the dishonored payment.117 In accordance with these current provisions, when a payment is returned as not payable, DHS places the immigration benefit request on hold, and suspends adjudication. If payment fails, DHS assesses a $30 penalty and pursues the unpaid fee and penalty using administrative debt collection procedures.118 If payment (the unpaid fee plus $30) is made within the allotted 14 day time period, DHS resumes processing the benefit request. If a payment is not corrected by the applicant, DHS rejects the filing for nonpayment.119 In this final rule, DHS is eliminating provisions that require USCIS to hold benefit request filings while deficient payments are corrected. Under the amendment, if a check or other financial instrument used to pay a filing fee is subsequently returned as not payable, DHS will now reject the filing when Treasury notifies DHS that the payment has failed; USCIS will no longer hold the filing and provide 14 days for the deficient payment to be corrected. To ensure that a payment rejection is the result of insufficient funds and not due to ACH and bank network outages, DHS has made a minor revision to the proposed amendment in the NPRM. Under the final rule, DHS will submit all rejected payments to the applicant’s bank two times (once upon original deposit and once again if the original attempt to deposit the payment is unsuccessful). Based on the typical time required for a payment instrument to clear a financial institution, this will allow approximately 5 additional days for payments to clear.120 DHS estimates the new mandatory rejected payment representment requirement will therefore provide approximately 10 days for payments to be corrected before DHS receives notification that the payment has failed and rejects the filing or imposes the $30 returned check fee.121 Under the new process, DHS will continue to intake benefit requests, attempt to deposit fees, and begin processing filings as soon as possible.122 In cases where the payment is initially rejected, Treasury will re-attempt to deposit the payment. However, if the payment is rejected a second time, Treasury will notify DHS and DHS, solely under its own authority, will reject the filing for non-payment of the required fee. In such cases where the benefit request has already been approved when DHS is notified of the failed payment, DHS will send the approved applicant or petitioner a notice of intent to revoke the approval. Regardless of the disposition of the benefit request, if the payment to DHS is rejected, the remitter will be charged a $30 returned check service charge.123 In order to estimate the number of applicants who will make a payment that is ultimately dishonored, DHS analyzed the count of all returned and subsequently corrected payments of a credit card or check from fiscal years 2012 to 2015.124 In FY 2015, a total of 10,818 payments were returned (Table 6). Of those 10,818 returned payments, 6,399 (59.2 percent) were later corrected. The average annual number of returned payments from FY 2012 to FY 2015 was 9,781 with an annual average of 6,478 payments (66.2 percent) later corrected. Assuming all included the current service fee of $30, the resulting total annual cost to applicants for returned payments is $293,430.125 TABLE 6—COUNT OF RETURNED AND CORRECTED CREDIT CARD/CHECK PAYMENTS, FY 2012–2015 Total returned payments Year sradovich on DSK3GMQ082PROD with RULES4 2015 2014 2013 2012 ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. 114 For comparison between current fees, USCIS estimates for costs of underlying services, and changes to fees, see Appendix VI, Table 4 in the supporting documentation. 115 USCIS will immediately reject and not accept for processing any applications and petitions submitted with invalid payments, e.g., an unsigned check or invalid bank account on an electronic payment. The subsequent identification as not payable will occur when an attempt is made to process the payment through a bank, but the bank does not honor the payment (e.g., because of insufficient funds). 116 See 8 CFR 103.2(a)(7)(ii). 117 See 8 CFR 103.2(a)(7)(ii), 103.7(a)(2). VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 118 See 8 CFR 103.7(a)(2). 8 CFR 103.2(a)(7)(ii). 120 See 8 CFR 103.2(a)(7)(ii)(D). 121 A commenter wrote that a fee payment may be submitted even when the applicant knows the account lacks the funds to cover the payment because a document is due to expire or a deadline is approaching. 122 USCIS will not store and hold any case. The adjudicator will intake and begin processing every benefit request as soon as practicable and will presume that all fee payments are valid. If the payment is rejected (which could take 10-days to know) and the adjudicator has not approved the request, Treasury will notify USCIS of the rejected 119 See PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 10,818 9,200 9,785 9,322 Total corrected payments 6,399 6,467 6,496 6,550 Percentage of corrected payments 59.2 70.3 66.4 70.3 payment, and USCIS will collect the request package and reject it. If the fees have been deposited and the benefit request has not yet been adjudicated, USCIS will process a refund. If the request is approved, USCIS may revoke after notice without a refund. 123 See amended 8 CFR 103.7(a)(2). 124 Corrected payments include any payment collected by USCIS after the return of an initial payment. 125 Calculation: 9,781 (average number of returned payments) × $30 (current service fee charge) = $293,430 (total cost for returned payments)). E:\FR\FM\24OCR4.SGM 24OCR4 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations 73325 TABLE 6—COUNT OF RETURNED AND CORRECTED CREDIT CARD/CHECK PAYMENTS, FY 2012–2015—Continued Total returned payments Year Average ........................................................................................................................................ 9,781 Total corrected payments 6,478 Percentage of corrected payments 66.2 sradovich on DSK3GMQ082PROD with RULES4 Source: Department of Homeland Security, Immigration and Customs Enforcement, Burlington Finance Center. As stated previously, with the implementation of this final rule, the regulations will no longer require DHS to hold benefit requests, and applicants will no longer be allowed to correct payments directly. Instead, all rejected payments will be re-presented to the relevant financial institution a second time, which will allow approximately another 5 days for it to clear.126 DHS’ current policy is to re-present a rejected payment twice to see if it clears on the second or third attempt before sending the filer the bill for the rejected payment. Under this final rule, Treasury will only re-present the payment on one occasion to save time. The average 9,781 returned payments (Table 6) will now be rejected unless the payments clear when re-presented by Treasury. This representation by Treasury has no additional cost since Treasury currently includes this step in the process to deposit DHS fee payments. DHS anticipates that the prospect of rejection will encourage filers to provide the correct filing fees at the time they submit their benefit requests. However, DHS recognizes that there will continue to be filers who file benefit requests with incorrect or deficient fees. For filers, filing fees are a required and fundamental aspect of the benefit being requested. By providing a 14-day window to correct dishonored payments, the regulation currently permits a benefit request paid with a dishonored payment instrument to secure a place in line ahead of a benefit request that was accompanied by a proper payment, including in programs that are time sensitive or involve numerically limited visas. In all cases, rejected filings may be refiled immediately with the proper payment but there are some slight differences depending on whether the submission is paper-based or electronically filed. The DHS online filing system will permit the rejected applications to remain accessible for the applicant to print and view. The original rejected electronic submission will not be available for resubmission with a new payment; however, the rejected submission may be used as a reference when a new application is being completed. In cases where the rejected submission is paperbased, the entire application/petition/ request and supporting documentation are returned when rejected and can generally be refiled with the proper payment instrument. The changes in this final rule will provide several benefits to DHS. These changes lower DHS administrative costs for holding and tracking benefit requests during the 14-day period currently provided to correct dishonored payments. The holding and tracking of benefit requests requires physical storage space that will no longer be required with these revisions. DHS currently incurs administrative costs through tracking payments in postage costs and adjudicator time among other costs. This change in process also provides parity to those individuals who file benefit requests with the correct fees, particularly in programs that are time sensitive or involve numerically limited visas. DHS recognizes the unique impact that these changes may have in the context of the H–1B program regulations, which make visa numbers available to petitions in the order in which the petitions are filed.127 The H– 1B regulations allow the final receipt date to be any of the first 5 business days on which petitions subject to the applicable numerical limit may be received. DHS then conducts a random selection among the petitions received during any of those 5 business days, known as the ‘‘H–1B lottery.’’ Currently, petitions remain eligible for the H–1B lottery despite having failed payments, as long as the payments are corrected within the provided 14-day or 10-day timeframe.128 Under the changes in this final rule, however, DHS will remove petitions from the H–1B lottery as soon as DHS receives notification of a failed payment, typically within 10 days of the receipt date. DHS does not have data at this time to estimate the impact on how many petitions may be affected by these changes. DHS is also unable to monetize the cost to the applicant of having a petition removed from selection for the H–1B lottery. 127 See 126 See 8 CFR 103.2(a)(7)(ii)(D). VerDate Sep<11>2014 18:32 Oct 21, 2016 128 See Jkt 214001 PO 00000 8 CFR 214.2(h)(8)(ii)(B). 8 CFR 103.2(a)(7)(ii). Frm 00035 Fmt 4701 Sfmt 4700 b. Failure To Pay the Biometric Services Fees DHS is also eliminating provisions governing non-payment of the biometric services fee in this final rule. Currently, if a benefit request is received by DHS without the correct biometric services fee, DHS will notify the filer of the deficiency and take no further action on the benefit request until payment is received.129 Failure to submit the correct biometric services fee within the time allotted in the notice will result in denial of the benefit request. If the required biometric services fee is missing, DHS suspends adjudication and places the benefit request on hold. If payment is made within the allotted time, DHS resumes processing the benefit request. If the biometric services fee is not paid, the benefit request is denied as abandoned. Through this final rule, DHS is deleting the regulatory provisions that permitted benefit requests to be held while deficient payments are corrected. As a result of these deletions, DHS will reject a benefit request if, for instance, it is received without the correct biometric services fee, as specified in the form instructions. In order to analyze the number of people who do not pay the correct biometric services fee, DHS updated the numbers from the NPRM with more recent data and gathered 7 months of data from DHS lockbox facilities.130 The data covers the period from December 1, 2015 to June 30, 2016. During this 7month period, DHS lockbox facilities accepted 2,624,825 benefit requests. Of these, a total of 6,179 (.24 percent) of filers were issued a notice alerting them that their biometric services fees were missing. Assuming this 7-month trend is typical of the number of deficient biometric services fee notices, the new provision will affect less than 1 percent of all benefit requests received at DHS lockbox facilities. As previously mentioned, rejected filings may be refiled immediately. While filers do not incur monetary costs (except for 129 See 8 CFR 103.17(b)(1). USCIS prefers to base assumptions on a longer time period (ideally 5 years), 7 months was the longest time period for which this data was available. 130 While E:\FR\FM\24OCR4.SGM 24OCR4 73326 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES4 additional postage fees) associated with the rejection of a benefit request, reapplying for benefits with the correct fees requires time. Again, DHS anticipates this new provision will encourage individuals to file with the appropriate fees. Additionally, this change will streamline DHS’ process for handling benefit requests when biometrics services fees are not submitted when required. DHS costs are reduced by eliminating the administrative handling costs associated with holding cases while biometric services fees are collected. c. Reduced Fee for Application for Naturalization The current fee for the Application for Naturalization, Form N–400, is $595. In most cases, applicants must also pay an $85 biometrics services fee, so the total cost for most applicants is $680. If an applicant cannot pay the fee, he or she can file a Request for Fee Waiver, Form I–912, along with their Form N–400. DHS considers anyone with a household income at or below 150 percent of the Federal Poverty Guidelines to be eligible for a fee waiver. If DHS approves an applicant’s fee waiver, both the $595 Form N–400 fee and the $85 biometrics services fee, where applicable, are waived. DHS will increase the Form N–400 fee from $595 to $640, a $45 (8 percent) increase in this final rule. The biometric services fee will remain unchanged at $85. Therefore, the new costs of Form N–400 plus the biometric services fee will total $725. DHS is introducing an additional fee option for those nonmilitary naturalization applicants with family incomes greater than 150 percent and not more than 200 percent of the Federal Poverty Guidelines. Specifically, applicants will receive a 50 percent discount and only be required to pay a filing fee of $320 for the N–400, plus an additional $85 biometric services fee (for a total of $405). This reduced fee option is intended to limit any potential economic disincentives that some eligible naturalization applicants face when deciding whether or not to seek citizenship. The lower fee will help ensure that those who have worked hard to become eligible for naturalization are not limited by their economic means. In order to qualify for this fee, the eligible applicant will have to submit the newly created Form I–942, Request for Reduced Fee, along with their Form N–400. Form I–942 will require the names of everyone in the household and documentation of the household income to determine if the applicant’s household income is greater VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 than 150 and not more than 200 percent of the Federal Poverty Guidelines. As described in the NPRM, DHS estimates that approximately 11 percent of all Form N–400 applicants, excluding military applicants, could qualify for the reduced fee. Given the non-military Form N–400 volume projection estimate of 821,500 annually, over the biennial period, DHS expects that 90,365 filers will be included in the population eligible for the fee reduction.131 While these 90,365 filers represent only the current number of applicants who will be eligible for the fee reduction, DHS anticipates an increase in Form N–400 filings as a result of the changes in this final rule. DHS anticipates that the reduced fee for applicants with qualifying incomes will remove economic barriers associated with the costs of associated fees and thus encourage more eligible applicants to file their Form N–400 applications. While DHS anticipates an increase in Form N–400 filings due to this fee reduction, we cannot predict how many more eligible applicants will file their N–400 applications at this time. DHS has factored the estimated revenue loss from this product line into its fee model, so those costs are reallocated over other fee paying benefit requests. While the costs of the reduced fee are being reallocated to other feepaying customers, DHS believes the benefits of facilitating access to citizenship outweighs the cost reallocation impacts. As previously mentioned, an eligible applicant will have to submit a Form I– 942 along with a Form N–400 application to qualify for this reduced fee. While DHS is not imposing an additional fee for Form I–942, DHS has estimated the opportunity cost of time to applicants to complete the form. The total annual opportunity cost of time for applicants will be $717,724, if all 90,365 eligible applicants apply for the reduced fee.132 The Federal minimum wage rate 133 of $7.25 was used as the hourly wage rate because the anticipated applicants are asserting they cannot afford to pay the full DHS fee and DHS thus assumes that such applicants earn less than average incomes. The BLS reports the average employer costs for employee compensation for all civilian workers in major occupational groups and industries. Using these data from 131 Calculation: 821,500 * 11 percent. Opportunity Costs of Time to Applicants = Expected Filers (90,365) * (Full Cost of Employee Benefits ($10.59) * Time Burden (.75 hr.)). 133 U.S. Department of Labor, Wage and Hour Division. The minimum wage in effect as of July 13, 2016. See http://www.dol.gov/general/topic/wages/ minimumwage. 132 Total PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 BLS, DHS calculated compensation-towage multiplier of 1.46 to estimate the full opportunity costs to applicants, including employee wages, salaries, and the full costs of benefits, such as paid leave, insurance, and retirement.134 To anticipate the full opportunity cost of time to applicants, we multiplied the Federal minimum wage rate by 1.46 to account for the full cost of employee benefits for a total of $10.59. The time burden estimate was developed by DHS with an average of 45 minutes (or .75 of an hour) to complete Form I–942, resulting in an opportunity cost of time per petition of $7.94.135 This additional burden is offset by the benefits received from the $320 fee reduction. d. Refunds. DHS is also amending regulations for fee refunds in this final rule. In general, and except for a premium processing fee under 8 CFR 103.7(e)(2)(i), DHS does not refund a fee regardless of the decision on the immigration benefit request. DHS makes very rare exceptions when DHS determines that an administrative error occurred resulting in the inadvertent collection of a fee. DHS errors may include: • Unnecessary filings. Cases in which DHS (or DOS in the case of an immigration benefit request filed overseas) erroneously requests that an individual file an unnecessary form along with the associated fee; and • Accidental Payments. Cases in which an individual pays a required fee more than once or otherwise pays a fee in excess of the amount due and DHS (or the DOS in the case of an immigration benefit request filed overseas) erroneously accepts the erroneous fee. DHS is codifying the process of continuing to provide these refunds in cases involving obvious DHS error. Individuals will continue to request a refund through the current established process, which requires calling the customer service line or submitting a written request for a refund to the office having jurisdiction over the relevant immigration benefit request. Any DHS refunds provided are generally due to obvious DHS errors resulting from electronic system 134 The compensation-to-wage multiplier is calculated as follows: (All Workers Total Employee Compensation per hour)/(Wages and Salaries per hour). See Economic News Release, U.S. Department of Labor, BLS, Table 1. Employer Costs per hour worked for employee compensation and costs as a percent of total compensation: Civilian workers, by major occupational and industry group (Sept. 2015), available at http://www.bls.gov/ news.release/pdf/ecec.pdf. 135 Calculation: $10.59 hourly wage rate * .75 hours. E:\FR\FM\24OCR4.SGM 24OCR4 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations behavior issues or human error. The anticipation of increased electronic filings in the future also spurs the need for this provision. Currently, DHS provides fee refunds to applicants as shown in Table 7. Over the past 3 fiscal years, DHS issued an annual average of 5,363 refunds, resulting in an average of $2.1 million refunded. This is approximately $396 per refund. These numbers and amounts of refunds do not include premium processing refunds 73327 regulated under 8 CFR 103.7(e)(2)(i). In the context of the total number of fees collected by DHS across all benefits, this average amount of refunds is still less than 1 percent of the total fees collected. TABLE 7—AMOUNT AND NUMBER OF FEE REFUNDS PROVIDED BY USCIS Amount refunded Fiscal year 2013 ......................................................................................................................................................................... 2014 ......................................................................................................................................................................... 2015 ......................................................................................................................................................................... Average .................................................................................................................................................................... $2,674,290 1,805,006 1,890,638 2,123,311 Number of refunds 7,405 4,198 4,485 5,363 Source: Department of Homeland Security, U.S. Immigration and Customs Enforcement, Burlington Finance Center. G. Executive Order 12988 (Civil Justice Reform) This final rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988. F. Executive Order 13132 (Federalism) sradovich on DSK3GMQ082PROD with RULES4 The changes in the final rule will benefit applicants who accidently submit payments twice. DHS anticipates this to be a bigger issue as more forms and associated fees begin to be collected through electronic means. Applicants will recoup any fees that were submitted erroneously due to electronic systems issues. DHS benefits by having clear regulatory authority concerning the relatively few cases in which refunds are provided. There may be some administrative costs associated with the issuance of refunds. DHS may see a potential initial increase in requests for refunds due to the visibility of this rule; however, DHS does not anticipate a sustained increase as DHS is not anticipating any changes to the conditions for issuing refunds. There may also be a potential increase in the time burden costs for DHS adjudicators to process these potential initial increases in refund requests. DHS does not have cost estimates at this time indicating the number of hours required to process and issue these refunds. There may also be some opportunity costs of time to filers who submit refund requests; however, DHS anticipates this cost is offset by the benefit gained in receiving a refund. Under the Paperwork Reduction Act of 1995, all Departments are required to submit to OMB, for review and approval, any reporting and recordkeeping requirements inherent in a rule. See 44 U.S.C. 3507. This final rule requires changes to OMB control number 1615–0052, the Application for Naturalization, Form N–400, to collect information necessary to document the applicant’s eligibility for the reduced fee proposed in this final rule at 8 CFR 103.7(b)(1)(i)(AAA)(1); OMB control number 1615–0061, Annual Certification of Regional Center, Form I– 924A, and the Application for Regional This rulemaking will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, DHS has determined that this rulemaking does not have sufficient Federalism implications to warrant the preparation of a federalism summary impact statement. VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 H. Family Assessment DHS has determined that this rule will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, 1999, Public Law 105–277, 112 Stat. 2681 (1998). By increasing immigration benefit request fees, this action will impose a slightly higher financial burden on some families that petition for family members to join them in the United States. On the other hand, the rule will provide USCIS with the funds necessary to carry out adjudication and naturalization services and provide similar services for free to disadvantaged populations, including asylees, refugees, individuals with Temporary Protected Status, and victims of human trafficking. DHS has determined that the benefits of the action justify the financial impact that it will place on some families. I. Paperwork Reduction Act—Comments on the Proposed Information Collection Changes PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 Center Designation Under the Immigrant Investor Program, Form I–924, to add the instructions necessary to require the annual fee; and OMB control number 1615–NEW, Request for Reduced Fee, Form I–942, to document the applicant’s eligibility for the reduced fee. DHS specifically requested public comments on the proposed changes to the forms and form instructions in the NPRM in accordance with 5 CFR 1320.11(a). OMB reviewed the request filed in connection with the NPRM and also filed comments in accordance with 5 CFR 1320.11(c). DHS summarized the comments received from the public and responded below: 1. Request for Reduced Fee, Form I–942 USCIS received some comments on the Request for Reduced Fee, Form I– 942, which was part of the NPRM docket. USCIS proposed to require Form I–942 for an applicant to request the $320 reduced fee for the Application for Naturalization. The comments indicated that the Form I–942’s sections related to preparer and interpreter certifications were unnecessarily lengthy, as was the section for signatures of additional family members. The comments stated that these sections make the form appear longer and more onerous than it needs to be. The commenters also recommended that the form be optional, similar to the optional Request for Fee Waiver, Form I–912. USCIS designed the Request for Reduced Fee to be very similar to the Request for Fee Waiver. USCIS anticipates that preparers will benefit from having similar forms with similar formats. Additionally, USCIS does not believe that Form I–942 should be optional for reduced fee requests in the same way that Form I–912 is optional. With respect to Form I–912, USCIS recognizes that applicants may be able to address certain criteria, such as financial hardship, in a letter more E:\FR\FM\24OCR4.SGM 24OCR4 73328 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations easily than through a form. However, the proposed sole basis for submitting a Request for Reduced Fee is the applicant’s household income level. See 81 FR 26916. To qualify for the reduced fee, an applicant’s household income must be greater than 150 and not more than 200 percent of the Federal Poverty Guidelines. Id. USCIS believes that such income information is more easily conveyed to the agency, and accessed by the agency, if it is presented in a uniform manner through a form, rather than through a letter. To provide additional flexibility to reduced fee applicants, USCIS has also decided to permit multiple family members living in the same household who are each submitting an Application for Naturalization, and who are each within the relevant income levels for the reduced fee, to jointly submit one Form I–942 with their naturalization applications.136 USCIS determined that permitting multiple requests on one form would impose less of a burden overall than requiring multiple members of the same household to file separate reduced fee requests. As a result of these comments, DHS changed the form to permit multiple family members to file on Form I–942 with respect to multiple naturalization applications. sradovich on DSK3GMQ082PROD with RULES4 2. Annual Certification of Regional Center, Form I–924A At least one commenter recommended standardizing the questions for Form I–924A and indicated that the form provides little to no value to USCIS. USCIS believes the revised form and instructions better explain the annual reporting process and requirements, and provide more useful information to USCIS, than the previous version of the form. In addition, USCIS believes the revised forms address the commenter’s concerns by eliminating many redundant and lengthy questions and instructions. While the form contains new questions, it is intended to result in more comprehensive reviews and to require fewer and simpler follow-up inquiries from USCIS in response to annual I– 924A filings. DHS made no changes to the draft form or the proposed rule as a result of these comments. The form and fee are finalized as proposed. New CFR 204.6(m). 136 In such cases, each family member who is requesting a reduced fee for their Application for Naturalization must sign the Form I–942. Applicants must submit the Form I–942 in the same envelope as the naturalization applications for which they are requesting fee waivers. VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 List of Subjects 8 CFR Part 103 Administrative practice and procedures, Authority delegations (government agencies), Freedom of Information, Privacy, Reporting and recordkeeping requirements, and Surety bonds. 8 CFR Part 204 Administrative practice and procedure, Immigration, Reporting and recordkeeping requirements. 8 CFR Part 205 Administrative practice and procedure, Immigration. Accordingly, DHS amends chapter I of title 8 of the Code of Federal Regulations as follows: PART 103—IMMIGRATION BENEFITS; BIOMETRIC REQUIREMENTS; AVAILABILITY OF RECORDS 1. The authority citation for part 103 continues to read as follows: ■ Authority: 5 U.S.C. 301, 552, 552(a); 6 U.S.C. 112, 8 U.S.C. 1101, 1103, 1154, 1155, 1185, 1186a, 1186b, 1254a, 1304, 1324a, 1356; 31 U.S.C. 9701; Pub. L. 107–296, 116 Stat. 2135 (6 U.S.C. 1 et seq.); E.O. 12356, 47 FR 14874, 15557; 3 CFR, 1982 Comp., p. 166; 8 CFR part 2; Pub. L. 112–54. ■ ■ ■ ■ 2. Section 103.2 is amended by: a. Revising paragraph (a)(1); b. Revising paragraph (a)(7); and c. Revising paragraph (b)(9). The revisions read as follows: § 103.2 Submission and adjudication of benefit requests. (a) * * * (1) Preparation and submission. Every form, benefit request, or other document must be submitted to DHS and executed in accordance with the form instructions regardless of a provision of 8 CFR chapter I to the contrary. The form’s instructions are hereby incorporated into the regulations requiring its submission. Each form, benefit request, or other document must be filed with the fee(s) required by regulation. Filing fees generally are nonrefundable and, except as otherwise provided in this chapter I, must be paid when the benefit request is filed. * * * * * (7) Benefit requests submitted. (i) USCIS will consider a benefit request received and will record the receipt date as of the actual date of receipt at the location designated for filing such benefit request whether electronically or in paper format. (ii) A benefit request which is rejected will not retain a filing date. A benefit request will be rejected if it is not: PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 (A) Signed with valid signature; (B) Executed; (C) Filed in compliance with the regulations governing the filing of the specific application, petition, form, or request; and (D) Submitted with the correct fee(s). If a check or other financial instrument used to pay a fee is returned as unpayable, USCIS will re-submit the payment to the remitter institution one time. If the instrument used to pay a fee is returned as unpayable a second time, the filing will be rejected and a charge will be imposed in accordance with 8 CFR 103.7(a)(2). (iii) A rejection of a filing with USCIS may not be appealed. (b) * * * (9) Appearance for interview or biometrics. USCIS may require any applicant, petitioner, sponsor, beneficiary, or individual filing a benefit request, or any group or class of such persons submitting requests, to appear for an interview and/or biometric collection. USCIS may require the payment of the biometric services fee in 8 CFR 103.7(b)(1)(i)(C) or that the individual obtain a fee waiver. Such appearance and fee may also be required by law, regulation, form instructions, or Federal Register notice applicable to the request type. USCIS will notify the affected person of the date, time and location of any required appearance under this paragraph. Any person required to appear under this paragraph may, before the scheduled date and time of the appearance, either: (i) Appear before the scheduled date and time; (ii) For good cause, request that the biometric services appointment be rescheduled; or (iii) Withdraw the benefit request. * * * * * ■ 4. Section 103.7 is amended by revising paragraphs (a)(2) and (b)(1) to read as follows: § 103.7 Fees. * * * * * (a) * * * (2) Remittances must be drawn on a bank or other institution located in the United States and be payable in United States currency. Remittances must be made payable in accordance with the guidance specific to the applicable U.S. Government office when submitting to a Department of Homeland Security office located outside of the United States. Remittances to the Board of Immigration Appeals must be made payable to the ‘‘United States Department of Justice,’’ in accordance with 8 CFR 1003.8. If a remittance in payment of a fee or any E:\FR\FM\24OCR4.SGM 24OCR4 sradovich on DSK3GMQ082PROD with RULES4 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations other matter is not honored by the bank or financial institution on which it is drawn: (i) A charge of $30.00 will be imposed; (ii) The provisions of 8 CFR 103.2(a)(7)(ii) apply, no receipt will be issued, and if a receipt was issued, it is void and the benefit request loses its receipt date; and (iii) If the benefit request was approved, the approval may be revoked upon notice. If the approved benefit request requires multiple fees, this provision will apply if any fee submitted is not honored. Other fees that were paid for a benefit request that is revoked under this provision will be retained and not refunded. A revocation of an approval because the fee submitted is not honored may be appealed to the USCIS Administrative Appeals Office, in accordance with 8 CFR 103.3 and the applicable form instructions. (b) Amounts of fees—(1) Established fees and charges—(i) USCIS fees. A request for immigration benefits submitted to USCIS must include the required fee as established under this section. The fees established in this section are associated with the benefit, the adjudication, or the type of request and not solely determined by the form number listed below. The term ‘‘form’’ as defined in 8 CFR part 1, may include a USCIS-approved electronic equivalent of such form as USCIS may provide on its official Web site at http:// www.uscis.gov. (A) Certification of true copies: $2.00 per copy. (B) Attestation under seal: $2.00 each. (C) Biometric services fee. For capturing, storing, and using biometric information (Biometric Fee). A service fee of $85 will be charged to pay for background checks and have their biometric information captured, stored, and used for any individual who is required to submit biometric information for an application, petition, or other request for certain immigration and naturalization benefits (other than asylum or refugee status) or actions. USCIS will not charge a biometric services fee when: (1) An applicant under 8 CFR 204.3 submits to USCIS a written request for an extension of the approval period of an Application for Advance Processing of an Orphan Petition (Application), if the request is submitted before the approval period expires and the applicant has not yet filed a Petition to Classify Orphan as an Immediate Relative (Petition) in connection with the approved Application. The applicant may submit only one VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 extension request without having to pay an additional biometric services fee. If the extension of the approval expires before the applicant files an associated Petition, then the applicant must file either a new Application or a Petition, and pay a new filing fee and a new biometric services fee. (2) The application or petition fee for the associated request has been waived under paragraph (c) of this section; or (3) The associated benefit request is one of the following: (i) Application for Posthumous Citizenship, Form N–644; (ii) Refugee/Asylee Relative Petition, Form I–730; (iii) Application for T Nonimmigrant Status, Form I–914; (iv) Petition for U Nonimmigrant Status, Form I–918; (v) Application for Naturalization, Form N–400, by an applicant who meets the requirements of sections 328 or 329 of the Act with respect to military service under paragraph (b)(1)(i)(WW) of this section; (vi) Application to Register Permanent Residence or Adjust Status, Form I–485, from an asylee under paragraph (b)(1)(i)(U) of this section; (vii) Application To Adjust Status under Section 245(i) of the Act, Supplement A to Form I–485, from an unmarried child less than 17 years of age, or when the applicant is the spouse, or the unmarried child less than 21 years of age of a legalized foreign national and who is qualified for and has applied for voluntary departure under the family unity program from an asylee under paragraph (b)(1)(i)(V) of this section; or (viii) Petition for Amerasian, Widow(er), or Special Immigrant, Form I–360, meeting the requirements of paragraphs (b)(1)(i)(T)(1), (2), (3) or (4) of this section. (D) USCIS Immigrant Fee. For DHS domestic processing and issuance of required documents after an immigrant visa is issued by the U.S. Department of State: $220. (E) Request for a search of indices to historical records to be used in genealogical research, Form G–1041: $65. The search request fee is not refundable. (F) Request for a copy of historical records to be used in genealogical research, Form G–1041A: $65. USCIS will refund the records request fee only when it is unable to locate the file previously identified in response to the index search request. (G) Application to Replace Permanent Resident Card, Form I–90. For filing an application for a Permanent Resident Card, Form I–551, to replace an obsolete PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 73329 card or to replace one lost, mutilated, or destroyed, or for a change in name: $455. (H) Application for Replacement/ Initial Nonimmigrant Arrival-Departure Document, Form I–102. For filing a petition for an application for Arrival/ Departure Record Form I–94, or Crewman’s Landing Permit Form I–95, to replace one lost, mutilated, or destroyed: $445. (I) Petition for a Nonimmigrant Worker, Form I–129. For filing a petition for a nonimmigrant worker: $460. (J) Petition for Nonimmigrant Worker in CNMI, Form I–129CW. For an employer to petition on behalf of one or more beneficiaries: $460 plus a supplemental CNMI education funding fee of $150 per beneficiary per year. The CNMI education funding fee cannot be waived. ´ (K) Petition for Alien fianc&eacute;(e), Form I–129F. For filing a petition to classify ´ ´ a nonimmigrant as a fianc&eacute;e or fianc&eacute; under section 214(d) of the Act: $535; there is no fee for a K–3 spouse as designated in 8 CFR 214.1(a)(2) who is the beneficiary of an immigrant petition filed by a United States citizen on a Petition for Alien Relative, Form I–130. (L) Petition for Alien Relative, Form I– 130. For filing a petition to classify status of a foreign national relative for issuance of an immigrant visa under section 204(a) of the Act: $535. (M) Application for Travel Document, Form I–131. For filing an application for travel document: (1) $135 for a Refugee Travel Document for an individual age 16 or older. (2) $105 for a Refugee Travel Document for a child under the age of 16. (3) $575 for advance parole and any other travel document. (4) No fee if filed in conjunction with a pending or concurrently filed Form I– 485 with fee that was filed on or after July 30, 2007. (N) Immigrant Petition for Alien Worker, Form I–140. For filing a petition to classify preference status of an alien on the basis of profession or occupation under section 204(a) of the Act: $700. (O) Application for Advance Permission to Return to Unrelinquished Domicile, Form I–191. For filing an application for discretionary relief under section 212(c) of the Act: $930. (P) Application for Advance Permission to Enter as a Nonimmigrant, Form I–192. For filing an application for discretionary relief under section 212(d)(3) of the Act, except in an emergency case or where the approval of the application is in the interest of E:\FR\FM\24OCR4.SGM 24OCR4 sradovich on DSK3GMQ082PROD with RULES4 73330 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations the United States Government: $930. If filed with and processed by CBP: $585. (Q) Application for Waiver for Passport and/or Visa, Form I–193. For filing an application for waiver of passport and/or visa: $585. (R) Application for Permission to Reapply for Admission into the United States After Deportation or Removal, Form I–212. For filing an application for permission to reapply for an excluded, deported or removed alien, an alien who has fallen into distress, an alien who has been removed as an alien enemy, or an alien who has been removed at government expense instead of deportation: $930. (S) Notice of Appeal or Motion, Form I–290B. For appealing a decision under the immigration laws in any type of proceeding over which the Board of Immigration Appeals does not have appellate jurisdiction: $675. The fee will be the same for appeal of a denial of a benefit request with one or multiple beneficiaries. There is no fee for an appeal or motion associated with a denial of a petition for a special immigrant visa filed by or on behalf of an individual seeking special immigrant visa or status as an Iraqi or Afghan national who was employed by or on behalf of the U.S. Government in Iraq or Afghanistan. (T) Petition for Amerasian, Widow(er), or Special Immigrant, Form I–360. For filing a petition for an Amerasian, Widow(er), or Special Immigrant: $435. The following requests are exempt from this fee: (1) A petition seeking classification as an Amerasian; (2) A self-petition for immigrant status as a battered or abused spouse, parent, or child of a U.S. citizen or lawful permanent resident; or (3) A petition for special immigrant juvenile status; or (4) A petition seeking special immigrant visa or status an Iraqi or Afghan national who was employed by or on behalf of the U.S. Government in Iraq or Afghanistan. (U) Application to Register Permanent Residence or Adjust Status, Form I–485. For filing an application for permanent resident status or creation of a record of lawful permanent residence: (1) $1,140 for an applicant 14 years of age or older; or (2) $750 for an applicant under the age of 14 years who submits the application concurrently with the Form I–485 of a parent. (3) There is no fee if an applicant is filing as a refugee under section 209(a) of the Act. (V) Application to Adjust Status under Section 245(i) of the Act, VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 Supplement A to Form I–485. Supplement to Form I–485 for persons seeking to adjust status under the provisions of section 245(i) of the Act: $1,000. There is no fee when the applicant is an unmarried child less than 17 years of age, when the applicant is the spouse, or the unmarried child less than 21 years of age of an individual with lawful immigration status and who is qualified for and has applied for voluntary departure under the family unity program. (W) Immigrant Petition by Alien Entrepreneur, Form I–526. For filing a petition for an alien entrepreneur: $3,675. (X) Application To Extend/Change Nonimmigrant Status, Form I–539. For filing an application to extend or change nonimmigrant status: $370. (Y) Petition to Classify Orphan as an Immediate Relative, Form I–600. For filing a petition to classify an orphan as an immediate relative for issuance of an immigrant visa under section 204(a) of the Act. Only one fee is required when more than one petition is submitted by the same petitioner on behalf of orphans who are brothers or sisters: $775. (Z) Application for Advance Processing of Orphan Petition, Form I– 600A. For filing an application for advance processing of orphan petition. (When more than one petition is submitted by the same petitioner on behalf of orphans who are brothers or sisters, only one fee will be required.): $775. No fee is charged if Form I–600 has not yet been submitted in connection with an approved Form I– 600A subject to the following conditions: (1) The applicant requests an extension of the approval in writing and the request is received by USCIS before the expiration date of approval; and (2) The applicant’s home study is updated and USCIS determines that proper care will be provided to an adopted orphan. (3) A no fee extension is limited to one occasion. If the Form I–600A approval extension expires before submission of an associated Form I–600, then a complete application and fee must be submitted for any subsequent application. (AA) Application for Waiver of Ground of Inadmissibility, Form I–601. For filing an application for waiver of grounds of inadmissibility: $930. (BB) Application for Provisional Unlawful Presence Waiver, Form I– 601A. For filing an application for provisional unlawful presence waiver: $630. (CC) Application for Waiver of the Foreign Residence Requirement (under PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 Section 212(e) of the Immigration and Nationality Act, as Amended), Form I– 612. For filing an application for waiver of the foreign-residence requirement under section 212(e) of the Act: $930. (DD) Application for Status as a Temporary Resident under Section 245A of the Immigration and Nationality Act, Form I–687. For filing an application for status as a temporary resident under section 245A(a) of the Act: $1,130. (EE) Application for Waiver of Grounds of Inadmissibility under Sections 245A or 210 of the Immigration and Nationality Act, Form I–690. For filing an application for waiver of a ground of inadmissibility under section 212(a) of the Act as amended, in conjunction with the application under sections 210 or 245A of the Act, or a petition under section 210A of the Act: $715. (FF) Notice of Appeal of Decision under Sections 245A or 210 of the Immigration and Nationality Act (or a petition under section 210A of the Act), Form I–694. For appealing the denial of an application under sections 210 or 245A of the Act, or a petition under section 210A of the Act: $890. (GG) Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of Pub. L. 99–603), Form I–698. For filing an application to adjust status from temporary to permanent resident (under section 245A of Pub. L. 99–603): $1,670. The adjustment date is the date of filing of the application for permanent residence or the applicant’s eligibility date, whichever is later. (HH) Petition to Remove Conditions on Residence, Form I–751. For filing a petition to remove the conditions on residence based on marriage: $595. (II) Application for Employment Authorization, Form I–765. $410. No fee if filed in conjunction with a pending or concurrently filed Form I–485 with fee that was filed on or after July 30, 2007. (JJ) Petition to Classify Convention Adoptee as an Immediate Relative, Form I–800. (1) There is no fee for the first Form I–800 filed for a child on the basis of an approved Application for Determination of Suitability to Adopt a Child from a Convention Country, Form I–800A, during the approval period. (2) If more than one Form I–800 is filed during the approval period for different children, the fee is $775 for the second and each subsequent petition submitted. (3) If the children are already siblings before the proposed adoption, however, only one filing fee of $775 is required, E:\FR\FM\24OCR4.SGM 24OCR4 sradovich on DSK3GMQ082PROD with RULES4 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations regardless of the sequence of submission of the immigration benefit. (KK) Application for Determination of Suitability to Adopt a Child from a Convention Country, Form I–800A. For filing an application for determination of suitability to adopt a child from a convention country: $775. (LL) Request for Action on Approved Application for Determination of Suitability to Adopt a Child from a Convention Country, Form I–800A, Supplement 3. This filing fee is not charged if Form I–800 has not been filed based on the approval of the Form I– 800A, and Form I–800A Supplement 3 is filed in order to obtain a first extension of the approval of the Form I– 800A: $385. (MM) Application for Family Unity Benefits, Form I–817. For filing an application for voluntary departure under the Family Unity Program: $600. (NN) Application for Temporary Protected Status, Form I–821. For first time applicants: $50. There is no fee for re-registration. (OO) Application for Action on an Approved Application or Petition, Form I–824. For filing for action on an approved application or petition: $465. (PP) Petition by Entrepreneur to Remove Conditions, Form I–829. For filing a petition by entrepreneur to remove conditions: $3,750. (QQ) Application for Suspension of Deportation or Special Rule Cancellation of Removal (Pursuant to Section 203 of Pub. L. 105–100), Form I–881: (1) $285 for adjudication by DHS, except that the maximum amount payable by family members (related as husband, wife, unmarried child under 21, unmarried son, or unmarried daughter) who submit applications at the same time will be $570. (2) $165 for adjudication by the Immigration Court (a single fee of $165 will be charged whenever applications are filed by two or more foreign nationals in the same proceedings). (3) The $165 fee is not required if the Form I–881 is referred to the Immigration Court by DHS. (RR) Application for Authorization to Issue Certification for Health Care Workers, Form I–905: $230. (SS) Request for Premium Processing Service, Form I–907. $1,225. The Request for Premium Processing Service fee: (1) Must be paid in addition to, and in a separate remittance from, other filing fees. (2) May be adjusted annually by notice in the Federal Register based on inflation according to the Consumer Price Index (CPI). VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 (3) May not be waived. (TT) Application for Civil Surgeon Designation, Form I–910. For filing an application for civil surgeon designation: $785. There is 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 and veterans of the Armed Forces and their dependents at a military, Department of Veterans Affairs, or U.S. Government facility in the United States. (UU) Application for T Nonimmigrant Status, Form I–914. No fee. (VV) Application for U Nonimmigrant Status, Form I–918. No fee. (WW) Application for Regional Center Designation under the Immigrant Investor Program, Form I–924. For filing an application for regional center designation under the Immigrant Investor Program: $17,795. (XX) Annual Certification of Regional Center, Form I–924A. To provide updated information and certify that an Immigrant Investor Regional Center has maintained their eligibility: $3,035. (YY) Petition for Qualifying Family Member of a U–1 Nonimmigrant, Form I–929. For U–1 principal applicant to submit for each qualifying family member who plans to seek an immigrant visa or adjustment of U status: $230. (ZZ) Application to File Declaration of Intention, Form N–300. For filing an application for declaration of intention to become a U.S. citizen: $270. (AAA) Request for a Hearing on a Decision in Naturalization Proceedings (Under section 336 of the Act), Form N– 336. For filing a request for hearing on a decision in naturalization proceedings under section 336 of the Act: $700. There is no fee if filed on or after October 1, 2004, by an applicant who has filed an Application for Naturalization under sections 328 or 329 of the Act with respect to military service and whose application has been denied. (BBB) Application for Naturalization, Form N–400. For filing an application for naturalization: $640. Except: (1) The fee for an applicant whose documented income is greater than 150 percent and not more than 200 percent of the Federal poverty level is $320. (2) No fee is charged an applicant who meets the requirements of sections 328 or 329 of the Act with respect to military service. (CCC) Application to Preserve Residence for Naturalization Purposes, Form N–470. For filing an application for benefits under section 316(b) or 317 of the Act: $355. (DDD) Application for Replacement Naturalization/Citizenship Document, PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 73331 Form N–565. For filing an application for a certificate of naturalization or declaration of intention in place of a certificate or declaration alleged to have been lost, mutilated, or destroyed; for a certificate of citizenship in a changed name under section 343(c) of the Act; or for a special certificate of naturalization to obtain recognition as a citizen of the United States by a foreign state under section 343(b) of the Act: $555. There is no fee when this application is submitted under 8 CFR 338.5(a) or 343a.1 to request correction of a certificate that contains an error. (EEE) Application for Certificate of Citizenship, Form N–600. For filing an application for a certificate of citizenship under section 309(c) or section 341 of the Act: $1,170. There is no fee for any application filed by a member or veteran of any branch of the United States Armed Forces. (FFF) Application for Citizenship and Issuance of Certificate under section 322 of the Act, Form N–600K. For filing an application for citizenship and issuance of certificate under section 322 of the Act: $1,170. (GGG) American Competitiveness and Workforce Improvement Act (ACWIA) fee. For filing certain H–1B petitions as described in 8 CFR 214.2(h)(19) and USCIS form instructions: $1,500 or $750. (HHH) Fraud detection and prevention fee. For filing certain H–1B and L petitions, and $150 for H–2B petitions as described in 8 CFR 214.2(h)(19): $500. (III) 9–11 Response and Biometric Entry-Exit Fee for H–1B Visa. For certain petitioners who employ 50 or more employees in the United States if more than 50 percent of the petitioner’s employees are in H–1B, L–1A or L–1B nonimmigrant status: $4,000. Collection of this fee is scheduled to end on September 30, 2025. (JJJ) 9–11 Response and Biometric Entry-Exit Fee for L–1 Visa. For certain petitioners who employ 50 or more employees in the United States, if more than 50 percent of the petitioner’s employees are in H–1B, L–1A or L–1B nonimmigrant status: $4,500. Collection of this fee is scheduled to end on September 30, 2025. * * * * * ■ 5. Section 103.16 is amended by revising the first sentence of paragraph (a) to read as follows: § 103.16 Collection, use and storage of biometric information. (a) Use of biometric information. An individual may be required to submit biometric information by law, regulation, Federal Register notice or E:\FR\FM\24OCR4.SGM 24OCR4 73332 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations the form instructions applicable to the request type or if required in accordance with 8 CFR 103.2(b)(9). * * * * * * * * ■ 6. Section 103.17 is amended by revising paragraph (b) to read as follows: § 103.17 Biometric services fee. * * * * * (b) Non-payment. If a benefit request is received by DHS without the correct biometric services fee as provided in the form instructions, DHS will reject the benefit request. PART 204—IMMIGRANT PETITIONS 7. The authority citation for part 204 continues to read as follows: ■ Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1184, 1186a, 1255, 1641; 8 CFR part 2. 8. Section 204.6 is amended by revising paragraph (m)(6) to read as follows: ■ § 204.6 aliens. Petitions for employment creation * * * * (m) * * * (6) Continued participation requirements for regional centers. (i) Regional centers approved for participation in the program must: (A) Continue to meet the requirements of section 610(a) of the Appropriations Act. sradovich on DSK3GMQ082PROD with RULES4 * VerDate Sep<11>2014 18:32 Oct 21, 2016 Jkt 214001 (B) Provide USCIS with updated information annually, and/or as otherwise requested by USCIS, to demonstrate that the regional center is continuing to promote economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment in the approved geographic area, using a form designated for this purpose; and (C) Pay the fee provided by 8 CFR 103.7(b)(1)(i)(XX). (ii) USCIS will issue a notice of intent to terminate the designation of a regional center in the program if: (A) A regional center fails to submit the information required in paragraph (m)(6)(i)(B) of this section, or pay the associated fee; or (B) USCIS determines that the regional center no longer serves the purpose of promoting economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment. (iii) A notice of intent to terminate the designation of a regional center will be sent to the regional center and set forth the reasons for termination. (iv) The regional center will be provided 30 days from receipt of the notice of intent to terminate to rebut the ground or grounds stated in the notice of intent to terminate. (v) USCIS will notify the regional center of the final decision. If USCIS PO 00000 Frm 00042 Fmt 4701 Sfmt 9990 determines that the regional center’s participation in the program should be terminated, USCIS will state the reasons for termination. The regional center may appeal the final termination decision in accordance with 8 CFR 103.3. (vi) A regional center may elect to withdraw from the program and request a termination of the regional center designation. The regional center must notify USCIS of such election in the form of a letter or as otherwise requested by USCIS. USCIS will notify the regional center of its decision regarding the withdrawal request in writing. * * * * * PART 205—REVOCATION OF APPROVAL OF PETITIONS 9. The authority citation for part 205 continues to read as follows: ■ Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1155, 1182, and 1186a. 10. Section 205.1 is amended by removing and reserving paragraph (a)(2). ■ § 205.1 Automatic revocation. (a) * * * (2) [Reserved] * * * * * Jeh Charles Johnson, Secretary. [FR Doc. 2016–25328 Filed 10–21–16; 8:45 am] BILLING CODE 4410–10–P E:\FR\FM\24OCR4.SGM 24OCR4

Agencies

[Federal Register Volume 81, Number 205 (Monday, October 24, 2016)]
[Rules and Regulations]
[Pages 73292-73332]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-25328]



[[Page 73291]]

Vol. 81

Monday,

No. 205

October 24, 2016

Part IV





Department of Homeland Security





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8 CFR Parts 103, 204, and 205





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

Federal Register / Vol. 81 , No. 205 / Monday, October 24, 2016 / 
Rules and Regulations

[[Page 73292]]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 103, 204, and 205

[CIS No. 2577-15; DHS Docket No. USCIS-2016-0001]
RIN 1615-AC09


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 immigration and naturalization benefit requests processed 
by U.S. Citizenship and Immigration Services (USCIS). The fee schedule 
was last adjusted on November 23, 2010. USCIS conducted a comprehensive 
fee review for the fiscal year (FY) 2016/2017 biennial period and 
determined that current fees do not recover the full cost of services 
provided. DHS has determined that adjusting the fee schedule is 
necessary to fully recover costs and maintain adequate service. DHS 
published a proposed fee schedule on May 4, 2016.
    Under this final rule, DHS will increase fees by a weighted average 
of 21 percent; establish a new fee of $3,035 covering USCIS costs 
related to processing the Employment Based Immigrant Visa, Fifth 
Preference (EB-5) Annual Certification of Regional Center, Form I-924A; 
establish a three-level fee for the Application for Naturalization, 
Form N-400; and remove regulatory provisions that prevent USCIS from 
rejecting an immigration or naturalization benefit request paid with a 
dishonored check or lacking the required biometric services fee until 
the remitter has been provided an opportunity to correct the deficient 
payment.

DATES: This rule is effective December 23, 2016. Applications or 
petitions mailed, postmarked, or otherwise filed on or after December 
23, 2016 must include the new fee.

FOR FURTHER INFORMATION CONTACT: Joseph D. Moore, Chief Financial 
Officer, U.S. Citizenship and Immigration Services, Department of 
Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529-
2130, telephone 202-272-1969.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
II. Background
III. Final Rule
    A. Changes in the Final Rule
    B. Corrections
    C. Summary of Final Fees
IV. Public Comments on the Proposed Rule
    A. General Comments
    B. Relative Amount of Fees
    1. Proposed Fees Are Too High
    a. Barrier to Family Reunification
    b. Impact on Low-Income Individuals; Low Volume Reallocation
    2. Comments on Specific Fees and Adjustments
    a. Application for Certificate of Citizenship, Forms N-600/600K
    b. Adoption, Forms I-600/600A/800/800A
    c. Petition for a Nonimmigrant Worker, Form I-129
    d. Application To Register Permanent Residence or Adjust Status, 
Form I-485, and Interim Benefits
    e. Application for Travel Document, Form I-131
    f. Students
    g. Application for Replacement Naturalization/Citizenship 
Certificate, Form N-565
    h. Petition for Alien Relative, Form I-130
    i. Application To Replace Permanent Resident Card, Form I-90
    j. Genealogy, Forms G-1041/1041A
    k. Petition To Remove Conditions on Residence, Form I-751
    l. Petition for Alien fiancé(e), Form I-129F
    m. Petition for Amerasian, Widow(er), or Special Immigrant, Form 
I-360
    n. Notice of Appeal or Motion, Form I-290B
    o. Application for Civil Surgeon Designation, Form I-910
    p. Application for Advance Permission to Enter as a 
Nonimmigrant, Form I-192, and Application for Waiver of Passport 
and/or Visa, Form I-193
    C. Fee Waivers and Exemptions
    D. Naturalization
    E. Improve Service and Reduce Inefficiencies
    F. Premium Processing
    G. Immigrant Investors
    1. Application for Regional Center Under the Immigrant Investor 
Program, Form I-924
    2. Immigrant Petition by Alien Entrepreneur, Form I-526
    3. Petition by Entrepreneur To Remove Conditions on Permanent 
Resident Status, Form I-829
    H. Methods Used To Determine Fee Amounts
    1. Recovery of Full Cost Without Appropriations
    2. Exclusion of Temporary or Uncertain Costs, Items, and 
Programs
    3. Setting Fees by Benefit Type
    4. Income-Based Fee Structure
    5. Reduction in USCIS Costs
    I. Dishonored Payments
    J. Refunds
    K. Visa Allocation
    L. Credit Card Payments
V. Statutory and Regulatory Reviews
    A. Regulatory Flexibility Act--Final Regulatory Flexibility 
Analysis
    1. A Statement of the Need for, and Objectives of, the Rule
    2. A Statement of the Significant Issues Raised by the Public 
Comments in Response to the Initial Regulatory Flexibility Analysis, 
A Statement of the Assessment of the Agency of Such Issues, and A 
Statement of Any Changes Made in the Proposed Rule as a Result of 
Such Comments
    a. Comments on Form I-129
    b. Comments on Forms I-360 and I-485
    c. Comments on Forms G-1041 and G-1041A
    d. Comments on Form I-924A
    3. The Response of the Agency to Any Comments Filed by the Chief 
Counsel for Advocacy of the Small Business Administration in 
Response to the Proposed Rule, and a Detailed Statement of Any 
Change Made to the Proposed Rule in the Final Rule as a Result of 
the Comments
    4. A Description of and an Estimate of the Number of Small 
Entities to Which the Rule Will Apply or an Explanation of Why No 
Such Estimate is Available
    a. Petition for a Nonimmigrant Worker, Form I-129
    b. Immigrant Petition for an Alien Worker, Form I-140
    c. Application for Civil Surgeon Designation, Form I-910
    d. Regional Center Designation Under the Immigrant Investor 
Program, Form I-924 and I-924A
    e. Petition for Amerasian, Widow(er), or Special Immigrant, Form 
I-360
    5. A Description of the Projected Reporting, Recordkeeping and 
Other Compliance Requirements of the Rule, Including an Estimate of 
the Classes of Small Entities Which Will Be Subject to the 
Requirement and the Type of Professional Skills Necessary For 
Preparation of the Report or Record
    6. A Description of the Steps the Agency Has Taken To Minimize 
the Significant Economic Impact on Small Entities Consistent With 
the Stated Objectives of Applicable Statutes, Including a Statement 
of the Factual, Policy, and Legal Reasons for Selecting the 
Alternative Adopted in the Final Rule and Why Each One of the Other 
Significant Alternatives to the Rule Considered by the Agency Which 
Affect the Impact on Small Entities was Rejected
    B. Unfunded Mandates Reform Act
    C. Small Business Regulatory Enforcement Fairness Act
    D. Congressional Review Act
    E. Executive Orders (E.O.) 12866 and 13563 (Regulatory Planning 
and Review)
    1. Background and Purpose of the Final Rule
    2. Amendments and Impacts of Regulatory Change
    a. Dishonored Payments
    b. Failure To Pay the Biometric Services Fees
    c. Reduced Fee for Application for Naturalization
    d. Refunds
    F. Executive Order 13132 (Federalism)
    G. Executive Order 12988 (Civil Justice Reform)
    H. Family Assessment

[[Page 73293]]

    I. Paperwork Reduction Act--Comments on the Proposed Information 
Collection Changes
    1. Request for Reduced Fee, Form I-942
    2. Annual Certification of Regional Center, Form I-924A

I. Executive 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 review for the FY 2016/2017 biennial 
period, refined its cost accounting process, and determined that 
current fees do not recover the full costs of services provided. DHS 
has determined that adjusting USCIS' fee schedule is necessary to fully 
recover costs and maintain adequate service.
    In this final rule, DHS will:
     Adjust fees by a weighted average increase of 21 percent 
to ensure that fees for each benefit type are adequate to cover USCIS' 
costs associated with processing applications and petitions, as well as 
providing similar benefits to asylum and refugee applicants \1\ and 
certain other immigrants at no charge.
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    \1\ Although the President has announced an increase in the 
refugee admissions ceiling to 110,000, the final fee structure 
includes costs for only 100,000, which was the anticipated ceiling 
at the time that the fee review was conducted.
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     Establish a new fee of $3,035 to recover the full cost of 
processing the Employment Based Immigrant Visa, Fifth Preference (EB-5) 
Annual Certification of Regional Center, Form I-924A.
     Establish a three-level fee for Application for 
Naturalization, Form N-400. First, DHS will increase the standard fee 
for Form N-400 from $595 to $640. Second, DHS will continue to charge 
no fee to applicants who meet the requirements of sections 328 or 329 
of the Immigration and Nationality Act of 1952 (INA) with respect to 
military service and applicants with approved fee waivers. Third, DHS 
will charge a reduced fee of $320 for naturalization applicants with 
family income greater than 150 percent and not more than 200 percent of 
the Federal Poverty Guidelines.
     Remove regulatory provisions that prevent USCIS from 
rejecting an immigration or naturalization benefit request paid with a 
dishonored check or lacking the required biometric services fee until 
the remitter has been provided an opportunity to correct the deficient 
payment.
     Clarify that persons filing any benefit request may be 
required to appear for biometrics services or an interview and may be 
required to pay the biometrics services fee.

II. Background

    DHS published a notice of proposed rulemaking (NPRM) on May 4, 
2016, which proposed adjusting USCIS' fee schedule by a weighted 
average increase of 21 percent. See U.S. Citizenship and Immigration 
Services Fee Schedule; Proposed Rule, 81 FR 26904. This final rule 
establishes the first fee adjustment since 2010. It is a result of a 
comprehensive fee review conducted by USCIS for the FY 2016/2017 
biennial period. During the fee review, USCIS determined that current 
fees do not recover the full costs of processing immigration benefits. 
This final rule reflects full cost recovery including program costs 
that DHS excluded in the 2010 final rule. USCIS provided the FY 2016/
2017 Immigration Examinations Fee Account (IEFA) Fee Review Supporting 
Documentation (supporting documentation), which includes budget 
methodology, and regulatory flexibility analysis, in the public docket. 
See http://www.regulations.gov, docket number USCIS-2016-0001.
    This final rule includes the addition of fee surcharges applied to 
certain immigration benefits to fully recover costs related to the 
USCIS Refugee, Asylum, and International Operations Directorate (RAIO), 
the Systematic Alien Verification for Entitlements (SAVE) program (to 
the extent not recovered from users),\2\ and the Office of 
Citizenship.\3\ In the 2010 final rule, USCIS assumed it would continue 
receiving funding for these programs through congressional 
appropriations. See U.S. Citizenship and Immigration Services Fee 
Schedule, 75 FR 58962, 58966 (Sept. 24, 2010). The 2010 final rule 
removed asylum, refugee, and military naturalization costs from the fee 
structure and assumed that immigration fees would not be used to 
recover the costs of adjudicating asylum, refugee, and military 
naturalization requests, as well as costs associated with the SAVE 
program and the Office of Citizenship. The final rule removed all of 
these costs from the USCIS fee structure, instead assuming that these 
services would be funded using appropriated funds. See 75 FR 58963. 
That budget request was not fulfilled, and USCIS was left to fund the 
cost of these programs after having removed the surcharge. See Pub. L. 
112-10, sec. 1639 (Apr. 15, 2011).\4\
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    \2\ The SAVE program was established in 1987 by the Immigration 
Reform and Control Act, Pub. L. 99-603, sec. 121(c) (Nov. 6, 1986), 
which required the Commissioner of the Immigration and 
Naturalization Service to ``implement a system for the verification 
of immigration status . . . so that the system is available to all 
States by not later than October 1, 1987.'' SAVE uses an internet-
based service to assist Federal, state, and local benefit-issuing 
and licensing agencies, and other governmental entities, in 
determining the immigration status of benefit or license applicants, 
so that only those applicants entitled to benefits or licenses 
receive them.
    \3\ The USCIS Office of Citizenship was established by section 
451(f) of the Homeland Security Act of 2002. Pub. L. 107-296, sec. 
451(f) (2002). The statute tasks the office with ``promoting 
instruction and training on citizenship responsibilities for aliens 
interested in becoming naturalized citizens.''
    \4\ USCIS received $29.95 million of the requested $248 million 
to fund a portion of the refugee and asylum processing administered 
under the RAIO Directorate and military naturalization processing in 
Fiscal Year 2011. USCIS has not received any substantial 
appropriations for these programs since FY 2011. USCIS received $2.5 
million for the immigrant integration grants program in FY 2014 
(Pub. L. 113-76) and FY 2013 (Pub. L. 113-6). USCIS did not receive 
appropriations for the immigrant integration grants program in FY 
2015 or FY 2016. Similarly, USCIS received no FY 2016 discretionary 
appropriations for the SAVE program or for the Office of 
Citizenship. See DHS Appropriations Act 2016, Pub. L. 114-113, div. 
F. (Dec. 18, 2015).
---------------------------------------------------------------------------

    DHS issues this final rule consistent with the Immigration and 
Nationality Act (INA) section 286(m), 8 U.S.C. 1356(m) (authorizing DHS 
to charge fees for adjudication and naturalization services at a level 
to 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) and the Chief Financial Officers 
(CFO) Act of 1990, 31 U.S.C. 901-03 (requiring each agency's CFO to 
review, on a biennial basis, the fees imposed by the agency for 
services it provides, and to recommend changes to the agency's fees). 
The NPRM provides additional information on the legal authority, non-
statutory guidance, and background on the IEFA fees. See 81 FR 26906.

III. Final Rule

A. Changes in the Final Rule

    This section details the changes made in this final rule as 
compared to the NPRM. These changes are summarized as follows:
    1. Application to Register Permanent Residence or Adjust Status, 
Form I-485. DHS has revised the regulatory language regarding the fee 
for the Application to Register Permanent Residence or Adjust Status, 
Form I-485, to clarify that the proposed $750 discounted fee is 
available for all applicants under 14 years old who submit their Form 
I-485 with that of a parent. These revisions accord the fee regulations 
with the current Form I-485 instructions and intake practices. See new 
8 CFR 103.7(b)(1)(i)(U)(2); 81 FR 26919. The section later in this 
preamble entitled, ``Adjustment of Status, Form I-485, and Interim 
Benefits,'' provides more details about this change.

[[Page 73294]]

    2. Dishonored payments. DHS has also clarified the regulations 
governing USCIS actions when a check used to pay the required fee is 
dishonored by the remitter's bank. Under this final rule, USCIS will 
submit all initially rejected payments to the applicant's bank a second 
time for it to clear or be rejected. 8 CFR 103.2(a)(7)(ii)(D). If the 
check is rejected again following re-submission by USCIS, it will 
reject the case for fee non-payment. If the case has been approved, 
USCIS will send a notice of intent to revoke the approval. The section 
later in this preamble entitled, ``Dishonored Payments,'' provides more 
details about this change.
    3. Application for Advance Permission to Enter as a Nonimmigrant, 
Form I-192, and Application for Waiver for Passport and/or Visa, Form 
I-193. DHS has made adjustments to the proposed fees in the final rule 
for the Application for Advance Permission to Enter as a Nonimmigrant, 
Form I-192, and the Application for Waiver for Passport and/or Visa, 
Form I-193. For the reasons outlined in section IV.B.2.p. of this 
preamble, the fees that will be charged for Forms I-192 and I-193 will 
remain at $585, rather than the proposed fee of $930 when such forms 
are submitted to and processed by the U.S. Customs and Border 
Protection (CBP). See new 8 CFR 103.7(b)(1)(i)(P)-(Q).

B. Corrections

    DHS inadvertently listed Application by Refugee for Waiver of 
Grounds of Excludability, Form I-602, in the NPRM preamble and the 
supporting documentation. DHS listed Form I-602 in the NPRM as part of 
Waiver Forms in section IV, Fee Review Methodology, at 81 FR 26916 and 
tables 8 and 9 at 81 FR 26926-26927. USCIS referenced it on pages 24, 
47, 49, and 50 of the accompanying supporting documentation. The docket 
of this final rule includes a corrected version of the supporting 
documentation without references to Form I-602. Form I-602 has no fee 
and DHS should not have included it in these lists or tables. The NPRM 
did not assume any fee-paying workload for Form I-602; therefore, 
removing it from the fee schedule does not affect other fees. DHS 
continues to not charge a fee for Form I-602.
    DHS also inadvertently did not include provisions for what would 
occur if a benefit request was approved before USCIS became aware that 
the fee payment was dishonored by the remitter institution. See 
proposed 8 CFR 103.2(a)(7)(ii), 103.7(a)(2); 81 FR 26936-26937. 
Specifically, DHS proposed to remove the requirement that USCIS provide 
notification to the requester whenever an instrument used to pay the 
filing fee is returned as not payable, with 14 days to cure the 
deficiency. However, DHS neglected to propose the necessary conforming 
change to 8 CFR 205.1(a)(2), which provides that the approval of a 
petition or self-petition made under INA section 204 is automatically 
revoked if the filing fee and associated service charge are not paid 
within 14 days of the notification to the remitter that his or her 
check or other financial instrument used to pay the filing fee has been 
returned as not payable. The latter provision must be revised to 
conform it to the proposed change described previously. That oversight 
has been corrected in this final rule. New 8 CFR 103.7(a)(2)(iii), 
205.1(a). This change is discussed in more detail in the response to 
the public comments regarding dishonored payments.

C. Summary of Final Fees

    The current USCIS fee schedule and the fees adopted in this final 
rule are summarized in Table 1. DHS bases the final fees on the FY 
2016/2017 estimated cost baseline as outlined in the NPRM. The table 
excludes fees established and required by statute and those that DHS 
cannot adjust.

                          Table 1--Non-Statutory IEFA Immigration Benefit Request Fees
----------------------------------------------------------------------------------------------------------------
                Form No.\5\                                 Title                   Current fee      Final fee
----------------------------------------------------------------------------------------------------------------
G-1041.....................................  Genealogy Index Search Request.....             $20             $65
G-1041A....................................  Genealogy Records Request (Copy                  20              65
                                              from Microfilm).
G-1041A....................................  Genealogy Records Request (Copy                  35              65
                                              from Textual Record).
I-90.......................................  Application to Replace Permanent                365             455
                                              Resident Card.
I-102......................................  Application for Replacement/Initial             330             445
                                              Nonimmigrant Arrival-Departure
                                              Document.
I-129/129CW................................  Petition for a Nonimmigrant Worker.             325             460
I-129F.....................................  Petition for Alien fiancé(e)             340             535
I-130......................................  Petition for Alien Relative........             420             535
I-131 \6\/I-131A \7\.......................  Application for Travel Document....             360             575
I-140......................................  Immigrant Petition for Alien Worker             580             700
I-191......................................  Application for Advance Permission              585             930
                                              to Return to Unrelinquished
                                              Domicile.
I-192......................................  Application for Advance Permission              585     \8\ 585/930
                                              to Enter as Nonimmigrant.
I-193......................................  Application for Waiver of Passport              585             585
                                              and/or Visa.
I-212......................................  Application for Permission to                   585             930
                                              Reapply for Admission into the
                                              U.S. After Deportation or Removal.
I-290B.....................................  Notice of Appeal or Motion.........             630             675
I-360......................................  Petition for Amerasian Widow(er) or             405             435
                                              Special Immigrant.
I-485......................................  Application to Register Permanent               985           1,140
                                              Residence or Adjust Status.
I-485......................................  Application to Register Permanent               635             750
                                              Residence or Adjust Status
                                              (certain applicants under the age
                                              of 14 years).
I-526......................................  Immigrant Petition by Alien                   1,500           3,675
                                              Entrepreneur.
I-539......................................  Application to Extend/Change                    290             370
                                              Nonimmigrant Status.
I-600/600A.................................  Petition to Classify Orphan as an               720             775
                                              Immediate Relative/Application for
                                              Advance Petition Processing of
                                              Orphan Petition.
I-800/800A.................................  Petition to Classify Convention                 720             775
                                              Adoptee as an Immediate Relative/
                                              Application for Determination of
                                              Suitability to Adopt a Child from
                                              a Convention Country.
I-601......................................  Application for Waiver of Ground of             585             930
                                              Excludability.
I-601A.....................................  Application for Provisional                     585             630
                                              Unlawful Presence Waiver.

[[Page 73295]]

 
I-612......................................  Application for Waiver of the                   585             930
                                              Foreign Residence Requirement
                                              (Under Section 212(e) of the INA,
                                              as Amended).
I-687......................................  Application for Status as a                   1,130           1,130
                                              Temporary Resident under Section
                                              245A of the Immigration and
                                              Nationality Act.
I-690......................................  Application for Waiver of Grounds               200             715
                                              of Inadmissibility.
I-694......................................  Notice of Appeal of Decision.......             755             890
I-698......................................  Application to Adjust Status From             1,020           1,670
                                              Temporary to Permanent Resident
                                              (Under Section 245A of the INA).
I-751......................................  Petition to Remove Conditions on                505             595
                                              Residence.
I-765......................................  Application for Employment                      380             410
                                              Authorization.
I-800A Supp. 3.............................  Request for Action on Approved Form             360             385
                                              I-800A.
I-817......................................  Application for Family Unity                    435             600
                                              Benefits.
I-824......................................  Application for Action on an                    405             465
                                              Approved Application or Petition.
I-829......................................  Petition by Entrepreneur to Remove            3,750           3,750
                                              Conditions.
I-910......................................  Application for Civil Surgeon                   615             785
                                              Designation.
I-924 \9\..................................  Application for Regional Center               6,230          17,795
                                              Designation Under the Immigrant
                                              Investor Program.
I-924A.....................................  Annual Certification of Regional                  0           3,035
                                              Center.
I-929......................................  Petition for Qualifying Family                  215             230
                                              Member of a U-1 Nonimmigrant.
N-300......................................  Application to File Declaration of              250             270
                                              Intention.
N-336......................................  Request for Hearing on a Decision               650             700
                                              in Naturalization Proceedings.
N-400......................................  Application for Naturalization.....             595             640
N-470......................................  Application to Preserve Residence               330             355
                                              for Naturalization Purposes.
N-565......................................  Application for Replacement                     345             555
                                              Naturalization/Citizenship
                                              Document.
N-600/N-600K...............................  Application for Certification of       \10\ 600/550           1,170
                                              Citizenship/Application for
                                              Citizenship and Issuance of
                                              Certificate under Section 322.
                                             USCIS Immigrant Fee \11\...........             165             220
                                             Biometric Services Fee.............              85              85
----------------------------------------------------------------------------------------------------------------

     
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    \5\ Form, when used in connection with a benefit or other 
request to be filed with DHS to request an immigration benefit, 
means a device for the collection of information in a standard 
format that may be submitted in a paper format or an electronic 
format as prescribed by USCIS on its official Internet Web site. The 
term ``Form'' followed by an immigration form number includes an 
approved electronic equivalent of such form as made available by 
USCIS on its official Internet Web site. See 8 CFR 1.2 and 299.1. 
Therefore, the word ``form'' is used in this final rule in both the 
specific and general sense.
    \6\ As described in the NPRM, the United States' obligations 
under the 1967 Protocol relating to the Status of Refugees 
(incorporating by reference Article 28 of the 1951 U.N. Convention 
relating to the Status of Refugees) guide the Application for Travel 
Document fees for a Refugee Travel Document. The USCIS ABC model 
does not calculate these fees. See 8 CFR 103.7(b)(1)(i)(M)(2) and 
(3).
    \7\ On August 31, OMB approved Form I-131A, Application for 
Travel Document (Carrier Documentation). The new form will be used 
by Lawful Permanent Residents (LPRs) who are temporarily overseas 
and have lost their Permanent Resident Card or Reentry Permit, to 
apply for a Travel Document. See https://www.uscis.gov/i-131a.
    \8\ The fee for Form I-192 will remain $585 when filed with and 
processed by CBP.
    \9\ DHS removed the word ``Pilot'' from the form title. See new 
8 CFR 103.7(b)(1)(i)(WW).
    \10\ The current fee for applications filed on behalf of a 
biological child is $600. The fee for an adopted child is $550. 
There is no fee for any application filed by a member or veteran of 
any branch of the U.S. Armed Forces.
    \11\ DHS changed the fee name to ``USCIS Immigrant Fee.'' See 
new 8 CFR 103.7(b)(1)(i)(D).
---------------------------------------------------------------------------

IV. Public Comments on the Proposed Rule

    DHS provided a 60-day comment period following publication of the 
NPRM; 436 comments were posted to regulations.gov. Although 475 
comments were received on the docket, 38 were not posted and one was 
withdrawn. As noted in the proposed rule, DHS may withhold information 
provided in comments from public viewing if it determines that such 
information is offensive or may affect the privacy of an individual. 81 
FR 26905.

A. General Comments

    DHS received comments from a broad spectrum of individuals and 
organizations, including refugee and immigrant service and advocacy 
organizations, public policy groups, members of Congress, and private 
citizens. Some commenters wrote that they supported the fee changes 
while others were critical of them. Many commenters wrote that they 
were generally unsupportive of the weighted average increase; others 
commented on specific form types. Some commenters wrote about 
alternative methods to reduce costs and inefficiencies.
    DHS also received several comments on subjects that are not related 
to the proposed fees and are outside the scope of the NPRM. With 
limited exception as explicitly stated below, DHS has not separately 
summarized or responded to these comments.

B. Relative Amount of Fees

    Most commenters stated opposition to the fee increases. Some 
commenters suggested that fee increases would reduce the number of 
people seeking immigration benefits. Some commenters stated that the 
proposed fees did not reflect the actual adjudicative workload of 
particular benefit types. Several commenters stated that proposed fees 
were too low, but the clear majority stated that the fees were too 
high.
    Although DHS summarizes and responds to these concerns in more 
detail below, it emphasizes that, as an initial matter and as 
articulated in the NPRM, DHS needs to increase USCIS fees by a weighted 
average increase of 21 percent to offset growing costs and continue to 
provide an adequate level of service, as provided by section 286(m) of 
the INA, 8 U.S.C. 1356(m), which authorizes USCIS to ``ensure recovery 
of the full costs of providing all such services, including the costs 
of similar services provided without charge.'' As reflected in this 
provision, some USCIS fees must exceed the cost of adjudicating the 
respective benefit types to cover those benefits provided without 
charge, such as refugee benefits, asylum benefits, and other fee-
exempt, fee-waived or fee-reduced workloads. Furthermore, as explained 
in the NPRM,

[[Page 73296]]

``DHS may reasonably adjust fees based on value judgements and public 
policy reasons where a rational basis for the methodology is propounded 
in the rulemaking.'' See 81 FR 26907.
    An example is the policy decision to include a fee exemption for 
individuals who are victims of a severe form of human trafficking and 
who assist law enforcement in the investigation or prosecution of those 
acts of trafficking (who may qualify for T visas), and individuals who 
are victims of certain crimes and are being helpful to the 
investigation or prosecution of those crimes (who may qualify for U 
visas). The cost of processing those fee-exempt visas must be recovered 
through fees charged for other benefit requests. See INA secs. 
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). Such a decision would inevitably 
cause an unsustainable reduction in fee revenue unless DHS spread the 
cost of the fee exemption among other fee-paying applicants and 
petitioners. Accordingly, consistent with section 286(m) of the INA, 8 
U.S.C. 1356(m), DHS sets fees for other fee-paying applicants and 
petitioners at a level sufficient to recover the full costs of 
providing all such services.
    Similarly, a decision to allow fee waivers for a particular benefit 
request, or a decision to allow a reduced fee, will also have an impact 
on other fee-paying applicants and petitioners. For instance, when 
USCIS determines to hold a fee to a smaller percentage increase than 
the overall methodology suggests (in this rule, DHS uses an 8 percent 
weighted average increase for those benefits that it determines should 
be held to a smaller fee increase \12\), there are cascading effects on 
other fee-paying applicants and petitioners. These fee-reduced 
immigration benefit requests may not recover the full cost of their 
associated workloads or the full cost of their respective fee waivers. 
The portion of costs that is not recovered is reallocated to other 
immigration benefit requests.
---------------------------------------------------------------------------

    \12\ In this rule, USCIS applies this increase to a number of 
benefit types, including the Application for Naturalization, Form N-
400; Application for Employment Authorization, Form I-765; and 
adoption-related applications, Forms I-600/600A/800/800A. This 
smaller increase, which in this rulemaking amounts to 8 percent, is 
the percentage difference between the current fees and the model 
output before reallocation, weighted by fee-paying volume. See 81 FR 
26915.
---------------------------------------------------------------------------

    Correspondingly, when DHS sets a fee for a given benefit request at 
the level suggested by the USCIS fee-setting methodology, without 
further adjustment, the associated immigration benefit request absorbs 
a portion of the additional costs associated with the immigration 
benefit requests that are held down to the 8 percent weighted average 
increase. These fees recover the full cost of their respective fee 
waivers, plus some of the fee waiver costs for immigration benefit 
requests that are held down to the 8 percent weighted average 
increase.\13\ These fees also recover a greater portion of the cost of 
fee-exempt services.
---------------------------------------------------------------------------

    \13\ See Appendix Table 4, Cost Reallocation column in the 
supporting documentation. These figures represent all additional 
costs, including the cost of forms that are held to the 8 percent 
weighted average increase based on policy decisions, that USCIS 
applies to fees to ensure full cost recovery.
---------------------------------------------------------------------------

1. Proposed Fees Are Too High
    The largest number of commenters wrote in opposition to the overall 
increase in fees. Several commenters expressed concern over specific 
populations (such as families or potential adoptive families) that may 
be particularly affected by the fee increases. Some commenters believed 
that a steep increase in fees would result in increased illegal 
immigration, particularly for individuals who may not be able to afford 
increased costs associated with existing legal avenues. Some commenters 
suggested that the increase in fees could discourage certain 
individuals from attempting to work or ultimately seeking lawful 
permanent residence resident (LPR) status in the country.
    As an initial matter, DHS notes that as stated in the NPRM, it 
attributes 17 percent of the 21 percent weighted average fee increase 
to the reinstatement of the surcharge needed to sustain current 
operating levels of RAIO, the SAVE program, and the Office of 
Citizenship, as well as to account for a projected loss in fee revenue 
resulting from a significant increase in the number of fee waivers 
currently received (and which is expected to continue throughout FY 
2016/2017). See 81 FR 26911. The remaining 4 percent is needed to 
recover the cost of sustaining current operating levels and to allow 
for limited, strategic investments necessary to ensure the agency's 
information technology infrastructure is strengthened. Such 
strengthening is needed to protect against potential cyber intrusions 
and to build the disaster recovery and back-up capabilities required to 
effectively deliver on the USCIS mission. See 81 FR 26910. For 
comparison, the inflation from July 2010 to July 2016 was 9.5 
percent.\14\
---------------------------------------------------------------------------

    \14\ The semiannual average consumer price index for all urban 
consumers (CPI-U) was 217.5 in July 2010 and 238.8 in July 2016. The 
change in the Index over 9 years was 21.3 or 9.5 percent. See U.S. 
Department of Labor, Bureau of Labor Statistics, All Urban Consumers 
(CPI-U) Semiannual Average tables, available at http://www.bls.gov/cpi/cpi_dr.htm. DHS has not recently adjusted IEFA fees by CPI-U 
inflation, but provides this figure as a point of comparison.
---------------------------------------------------------------------------

    DHS notes that fees do not merely cover the cost of adjudication 
time. The fees also cover the resources required for intake of 
immigration benefit requests, customer support, fraud detection, 
background checks, and administrative requirements.\15\ DHS also 
reiterates that any further fee adjustments would be zero-sum. Given 
the need to recover the full cost of the services provided, a decision 
reducing the fee burden on one population of beneficiaries will 
ultimately increase the burden on others.
---------------------------------------------------------------------------

    \15\ See Appendix Table 5: Activity Unit Costs by Immigration 
Benefit Request After Cost Reallocation of the supporting 
documentation. Pages 19-20 define the activities in the appendix 
table.
---------------------------------------------------------------------------

a. Barrier to Family Reunification
    A number of commenters stated that an increase in fees could 
potentially prevent family reunification for certain U.S. citizens and 
lawful permanent residents (LPRs), especially for individuals seeking 
to reunite with several family members. USCIS understands the 
importance of facilitating family reunification, as well as the 
advantages that LPR status and citizenship provide. DHS acknowledges 
that certain individuals may need to file multiple requests, and thus 
pay multiple fees, depending on the number of family members they seek 
to sponsor. Nonetheless, USCIS filing fees are necessary to provide the 
resources required to do the work associated with such filings. When 
fees do not fully recover costs, USCIS is unable to maintain sufficient 
capacity to process requests. Inadequate fees may cause significant 
delays in immigration request processing, which can result in the 
burden of longer separation from family members.
    DHS recognizes that fees impose a burden on fee-paying applicants 
and beneficiaries, and it takes steps to mitigate that burden as 
appropriate. Specifically, after USCIS applies its standard fee-setting 
methodology to identify the Activity-Based Cost (ABC) \16\ model output 
for each benefit

[[Page 73297]]

request, USCIS evaluates the model output and determines whether it 
should be adjusted. DHS is mindful that departures from the standard 
USCIS fee-setting methodology result in lower fees for some and higher 
fees for others. DHS discusses these adjustments in more detail in the 
remainder of this preamble, including by reference to certain family-
based benefit requests, such as the Petition for Alien Relative, Form 
I-130.
---------------------------------------------------------------------------

    \16\ USCIS uses the ABC model to determine the full cost of 
processing immigration benefit requests and biometric services. This 
is the same methodology used in the last four fee reviews and the 
basis for the current fee structure. The ABC model is a business 
management tool that assigns resource costs to operational 
activities and then to products and/or services. These assignments 
provide an accurate cost assessment of each major step towards 
producing the individual outputs of an organization. For additional 
information on the ABC model, see pages 17-22 of the supporting 
documentation.
---------------------------------------------------------------------------

b. Impact on Low-Income Individuals; Low Volume Reallocation
    Several commenters stated that the proposed rule would harm the 
ability of low-income applicants and petitioners to afford USCIS 
services. Some of these commenters suggested that the proposed overall 
fee increase would result in a reduction in overall filings from low-
income applicants and petitioners. Commenters discussed the importance 
of maintaining an immigration system that is accessible to people at 
all income levels.
    DHS is aware of the potential impact of fee increases on low-income 
individuals and is sympathetic to these concerns. As a result, DHS not 
only offers fee waivers, but also uses its fee-setting discretion to 
adjust certain immigration benefit request fees that USCIS believes may 
be overly burdensome on applicants, petitioners, and requestors if set 
at the recommended model output levels. As discussed in the proposed 
rule and supporting documentation, and consistent with past practice, 
USCIS proposed to limit fee adjustments for certain benefit requests to 
a set percentage increase above current fees. USCIS determined this 
figure by calculating the average percentage fee increase across all 
model outputs before cost reallocation. In this rule, that calculated 
figure is 8 percent. This methodology is referred to as Low Volume 
Reallocation.
    The use of Low Volume Reallocation frequently results in lower fees 
for certain low-income applicants and petitioners, but always results 
in higher fees for other benefit requests. This is because USCIS relies 
almost completely on fee revenue to support its operations. DHS is 
therefore mindful to use low volume reallocation only where compelling 
circumstances counsel in favor of shifting costs from one benefit 
request to others.
    Nonetheless, as proposed, in this final rule, DHS will continue 
applying Low Volume Reallocation from the 2010 final rule to the 
following forms:
     Notice of Appeal or Motion, Form I-290B
     Petition for Amerasian, Widow(er) or Special Immigrant, 
Form I-360
     Petition to Classify Orphan as an Immediate Relative, Form 
I-600, and Application for Advance Processing of an Orphan Petition, 
Form I-600A
     Petition to Classify Convention Adoptee as an Immediate 
Relative, Form I-800, and Application for Determination of Suitability 
to Adopt a Child from a Convention Country, Form I-800A
     Petition for Qualifying Family Member of a U-1 
Nonimmigrant Form I-929
     Application to File Declaration of Intention, Form N-300
     Request for Hearing on a Decision in Naturalization 
Proceedings, Form N-336
     Application to Preserve Residence for Naturalization 
Purposes, Form N-470
    Also as proposed, DHS will apply the same calculated 8 percent 
weighted average increase to the following benefit types:
     Application for Provisional Unlawful Presence Waiver, Form 
I-601A
     Application for Employment Authorization, Form I-765
     Request for Action on Approved Form I-800A, Form I-800A 
Supplement 3
    DHS believes that the use of Low Volume Reallocation will mitigate 
the potential burden of this final rule on certain low-income 
applicants and petitioners.\17\ DHS intends to continue assessing the 
affordability of its fees in future fee reviews. This may result in 
continuing Low Volume Reallocation, otherwise reallocating certain 
costs, and identifying cost savings. For purposes of this final rule, 
however, DHS has not materially changed the proposed rule to address 
the commenters' stated concerns with the proposed overall fee increase.
---------------------------------------------------------------------------

    \17\ DHS has not estimated the overall effect that this final 
rule will have on filing volume from low-income applicants. USCIS 
may consider exploring options to collect and analyze this data in 
the future.
---------------------------------------------------------------------------

2. Comments on Specific Fees and Adjustments
    While many commenters indicated that they were opposed to the 
overall increase in fees, some comments focused on increases to 
particular forms or to specific groups of applicants, petitioners, or 
requestors. Those comments are addressed below.\18\
---------------------------------------------------------------------------

    \18\ DHS addresses the comments on specific immigration benefit 
requests in approximate order of the number of commenters who 
submitted comments on that subject.
---------------------------------------------------------------------------

a. Application for Certificate of Citizenship, Forms N-600/600K
    In the NPRM, DHS proposed fee increases for the Application for 
Certificate of Citizenship, Form N-600, and the Application for 
Citizenship and Issuance of Certificate Under Section 322, Form N-600K. 
Under the proposed rule, the current $600 fee for applications filed on 
behalf of biological children would be increased by $570, or 95 
percent, to $1,170. The proposed rule also would eliminate the current 
$50 discount on applications filed on behalf of adopted children, 
previously codified at 8 CFR 103.7(b)(1)(i)(AAA), thereby effectively 
increasing fees for such applications by $620, or 103 percent. Id.
    A number of commenters stated that DHS should reconsider the 
proposed fee increases. Some commenters requested additional 
information to explain the increases. Certain commenters who submitted 
comments through a form letter campaign stated that the proposed 
increases were troubling considering that USCIS had not reported a 
significant increase in application volume or processing times.
    Some commenters stated that the proposed fee increase would result 
in a significant additional burden for potential adoptive families, who 
already invest a great deal of time and money in the adoption process. 
Some stated that Forms N-600 and N-600K should be free or discounted 
for adopted children, or alternatively maintained at the current fee. A 
commenter stated that the Department of State (DOS) processes 
derivative citizens' requests for passports in substantially the same 
manner that USCIS processes Forms N-600 and N-600K, yet DOS only 
charges $120 for a passport book for a child younger than 16 years of 
age. Other commenters stated that many adopted children automatically 
derive U.S. citizenship from their parents when they enter the United 
States, while other children derive U.S. citizenship when their 
adoptions are completed.\19\ Several commenters noted that a passport 
may be an effective alternative to the certificate for naturalization.
---------------------------------------------------------------------------

    \19\ See U.S. Citizenship and Immigration Services, Before Your 
Child Immigrates to the United States (11/18/2014), available at 
https://www.uscis.gov/adoption/your-child-immigrates-united-states.

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

[[Page 73298]]

    As noted previously, USCIS based the proposed fee increase for the 
Forms N-600 and N-600K on the results of its comprehensive biennial fee 
review, a summary of which was available for comment in the docket 
accompanying the proposed rule. The biennial fee review helps ensure 
that fees for USCIS services cover the full cost of processing 
immigration benefits. In the absence of full cost recovery, USCIS would 
be unable to sustain an adequate level of service, let alone invest in 
program improvements.
    DHS recognizes that fees impose a burden on fee-paying applicants 
and beneficiaries, and takes steps to mitigate that burden as 
appropriate. Specifically, after DHS applies the standard USCIS 
methodology to identify the model output for each benefit request, DHS 
evaluates the model output and determines whether it should be 
adjusted. In the NPRM, DHS proposed to limit a small number of fees to 
an 8 percent weighted average increase for one or more of the following 
three reasons: (1) DHS determined that the combined effect of cost, 
fee-paying volume, and methodology changes since the previous fee rule 
would otherwise place an inordinate fee burden on individuals 
requesting these types of benefits; (2) DHS determined that an 
adjustment was necessary to promote citizenship and immigrant 
integration or other policies; or (3) DHS lacked data on which to base 
an appropriate fee. See 81 FR 26915. For example, DHS proposed to limit 
to the 8 percent weighted average increase to the Application for 
Naturalization and the adoption petition and application fees 
(explained in the sections of this preamble that discuss those 
requests).
    DHS is mindful that departures from the standard USCIS fee 
methodology result in lower fees for some and higher fees for others. 
DHS is careful to use its fee setting discretion in a way that does not 
result in unnecessary or unjustifiable burdens for fee-paying 
applicants and petitioners. Accordingly, the proposed rule (like past 
fee rules) would have set most fees above cost, in adherence to the 
fee-setting methodology. The fee for Forms N-600 and N-600K is one of 
those fees.
    Setting aside the effect of cost reallocation,\20\ DHS attributes 
the proposed increase to the fee for Forms N-600 and N-600K to a 
significant increase in the number of fee waivers granted for such 
forms.\21\ In the 2010 final rule, DHS assumed that every applicant 
would pay the fee for Forms N-600 and N-600K. However, the fee-paying 
volume estimate for Forms N-600 and N-600K decreased from 100 percent 
in FY 2010/2011 to 67 percent in FY 2016/2017 due to applicants 
receiving fee waivers. The standard fee-setting methodology provides 
that the costs of waived or exempted fees are to be recovered from fee-
paying applicants submitting the same form(s) (in this case, applicants 
filing Forms N-600 and N-600K).\22\ See 81 FR 26922. The previous fee 
for Form N-600 was set under the assumption that 100 percent of filers 
would pay the fee; as the NPRM explained, however, a third of Form N-
600 filers are receiving fee waivers. These waivers account for a large 
portion of the costs that must now be addressed through the proposed 
fee increase. In short, the Form N-600 fee in the proposed rule is the 
result of consistent application of USCIS's fee-setting methodology. No 
adjustment was made to the fee calculated under the methodology based 
on other policy considerations.
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    \20\ At least one commenter indicated that the RAIO surcharge 
seemed to be a large contributor to the increase in the proposed fee 
for the Form N-600. The commenter suggested that the RAIO surcharge 
should be redistributed to all other forms to reduce the financial 
burden of the proposed fee increase on adoptive parents. As outlined 
in the NPRM, Forms N-600 and 600K are not the only forms that 
recover the cost of RAIO, the SAVE program, and the Office of 
Citizenship. USCIS currently distributes these costs to all form 
types not set below projected cost. See 81 FR 26915.
    \21\ See Appendix Table 4 of the supporting documentation.
    \22\ When DHS holds a fee below cost, the costs that are not 
covered, including fee waivers, must be paid by other fee paying 
applicants. Specifically, other immigration benefits whose fees are 
not held down recover the additional cost.
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    DHS is setting the fees for several other forms at a level that is 
less than their projected cost. If DHS similarly limited the fee for an 
Application for a Certificate of Citizenship, however, it would need to 
raise other fees to recover these expenses. USCIS estimates that each 
such instance would increase other fees between $5 and $210, with an 
average increase of $21.
    With respect to comments about the potential impact of the proposed 
fee increase on adoptive families in particular, DHS notes that Forms 
N-600 and N-600K are not primarily used by adoptive families. USCIS 
estimates that adopted children represent less than 10 percent of the 
workload related to Applications for Certificate of Citizenship.\23\ 
Although DHS could have established a separate fee for adopted 
children, the cost of such a departure from the standard fee-setting 
methodology would be borne by other fee-paying applicants and 
petitioners.\24\ Similarly, if DHS set the fee for this benefit request 
at an equivalent level to the DOS passport fee, DHS would be required 
to substantially increase other fees to ensure full-cost recovery. DHS 
agrees with commenters that in many cases, a passport will serve the 
same purpose as a certificate of citizenship, and for a lower cost to 
the applicant. Finally, DHS notes that adjudicating a Form N-600 for an 
adopted child is similar in workload and difficulty to the adjudication 
of an Application for Certificate of Citizenship for a biological 
child. There would be no cost-related basis for establishing a separate 
fee for adopted children.
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    \23\ Based on FY 2015 actual revenue data, less than 10 percent 
of fee-paying applicants for Forms N-600 or N-600K paid the lower 
fee for adopted children.
    \24\ DHS will continue its policy of reducing fee burdens on 
adoptive families in other ways. For instance, DHS will continue to 
allow fee waivers for the Form N-600. DHS will also continue to 
cover costs attributable to the adjudication of adoption petitions 
and applications (Forms I-600/600A/800/800A) through the fees 
collected from other requests. This policy is described in the 
following section on ``Adoption.'' Note that in the NPRM, the row 
for Forms I-600/600A/800/800A was labeled as ``orphan petitions.'' 
The term ``orphan'' only applies to Forms I-600 and Form I-600A. The 
row includes data for all of the adoption forms. Therefore, DHS 
changed the label for Forms I-600/600A/800/800A from ``orphan 
petitions'' to ``adoption petitions and applications'' in the final 
rule and in several tables within the supporting documentation. The 
changes only affect the labels for the rows and do not represent a 
change in the data or calculations.
---------------------------------------------------------------------------

    For the reasons stated above, DHS has not revised the proposed fee 
in this final rule. Under this final rule, the fee for the Application 
for Certificate of Citizenship, Form N-600, and the Application for 
Citizenship and Issuance of Certificate Under Section 322, Form N-600K, 
will be $1,170.
b. Adoption, Forms I-600/600A/800/800A
    In the NPRM, DHS proposed to increase the fee for the (1) Petition 
to Classify Orphan as an Immediate Relative, Form I-600; (2) 
Application for Advance Processing of an Orphan Petition, Form I-600A; 
(3) Petition to Classify Convention Adoptee as an Immediate Relative, 
Form I-800; and (4) Application for Determination of Suitability to 
Adopt a Child from a Convention Country, Form I-800A. The proposed 
increase would change the fee for each of these forms from $720 to 
$775. See proposed 8 CFR 103.7(b)(1)(i)(Y), (Z), (JJ)(2), (KK); 81 FR 
26939. DHS proposed to hold the increase for these benefit types (among 
others) to an 8 percent increase because the combined effect of cost, 
fee-paying volume, and methodology changes since the last fee rule 
would otherwise place an inordinate fee burden on individuals

[[Page 73299]]

requesting these types of benefits. For example, if DHS did not 
maintain the proposed fee for the Form I-600, this benefit request 
would have a fee of at least $2,258. DHS believes it would be contrary 
to the public interest to impose a fee of this amount on an estimated 
15,000 potential adoptive parents each year.
    Some commenters wrote in opposition to the proposed fee increases 
associated with intercountry adoptions or stated that DHS should 
reconsider these fee increases. Commenters wrote that all adoption-
related fees should remain at the current level, be lowered, or be 
waived when adopting children from foster care. Some commenters stated 
that these fee increases would lead to decreased intercountry 
adoptions. At least one commenter wrote that adoptive parents were 
specifically targeted by the proposed fee increases in the NPRM.
    DHS greatly values its role in intercountry adoptions and places 
high priority on the accurate and timely processing of immigration 
applications and petitions that enable U.S. families to provide 
permanent homes for adopted children from around the world. It also 
recognizes that the financial costs, both foreign and domestic, 
involved in intercountry adoptions can have significant impacts on 
these families. DHS has a history of modifying policies to ease burdens 
associated with international adoption. Prior to 2007, USCIS required 
prospective adoptive parents who had not found a suitable child for 
adoption within 18 months after approval of their Application for 
Advance Processing of Orphan Petition, Form I-600, to submit a fee with 
their request to extend their approval. Since 2007, USCIS has permitted 
adoptive parents to request one extension of their Form I-600 approval 
without charge, including the biometric fee. See 72 FR 29864; 8 CFR 
103.7(b)(1)(i)(Z). Finally, DHS does not charge an additional filing 
fee for an adoption petition filed on behalf of the first beneficiary 
child or birth siblings. See 8 CFR 103.7(b)(1)(i)(Z) and 
103.7(b)(1)(i)(JJ)(1).
    DHS also has a history of setting adoption-related fees lower than 
the amount suggested by the fee-setting methodology. In the 2010 fee 
rule, the calculated fee for adoption petitions and applications (Forms 
I-600/I-600A and I-800/I-800A) was $1,455, based on projected costs. 
See 75 FR 33461; previous 8 CFR 103.7(b)(1)(i)(Y), (Z), (II), (JJ). 
Instead of using the model output, DHS increased the fee by only $50, 
to $720. See 75 FR 58972. As noted previously, in the FY 2016/2017 fee 
review, the model output for the Form I-600 was $2,258.\25\ 
Nonetheless, DHS proposed setting fees for adoption petitions at $775. 
See proposed 8 CFR 103.7(b)(1)(i)(Y), (Z), (JJ), (2), (KK). The $1,483 
difference between the model output and the final fee will be recovered 
from other applications, petitions, and requests. Shifting the adoption 
petition and application costs to other fees is consistent with past 
DHS efforts and is in the public interest to support parents of 
children adopted abroad.
---------------------------------------------------------------------------

    \25\ Model output is reflected and further explained in Appendix 
Table 4: Proposed Fees by Immigration Benefit Request in the 
supporting documentation.
---------------------------------------------------------------------------

    DHS recognizes that fees impose a burden on individuals seeking 
immigration benefits, and it takes steps to mitigate that burden as 
appropriate. At the same time, DHS must recover the full costs of the 
services that USCIS provides, or else risk reductions in service 
quality, including potential delays in processing. In this case, DHS 
proposed to apply the reduced (8 percent) fee increase to these benefit 
requests, for the reasons stated previously and consistent with DHS's 
practice of holding a number of benefit requests to this reduced fee 
increase. DHS was mindful that although this departure from the 
standard fee-setting methodology results in lower fees for adoptive 
families, it also results in higher fees for others. 81 FR 26915. Any 
further departure would only heighten the effect on the rest of the fee 
schedule, and would not be consistent with DHS's overall fee-setting 
methodology. DHS is therefore finalizing the fee as proposed.
c. Petition for a Nonimmigrant Worker, Form I-129
    In the NPRM, DHS proposed to increase the fee for the Petition for 
a Nonimmigrant Worker, Form I-129, from $325 to $460. See proposed 8 
CFR 103.7(b)(1)(i)(I); 81 FR 26937. The proposed fee increase was the 
result of the application of the standard USCIS fee-setting methodology 
to this benefit request.
    Several commenters objected to the proposed fee increase. Most of 
the comments on this subject were from agricultural groups or farmers 
who expressed that the new fee would be too expensive for employers 
that employ H-2A temporary agricultural workers for seasonal labor. 
Other commenters objected to the impact that the proposed fee increase 
would have on performers in the arts. Commenters representing religious 
organizations also opposed the increase, stating that it would pose a 
burden to religious workers in small communities.
    Others submitted comments about processing delays. Some commenters 
noted that delays in processing Forms I-129 affect the incomes of 
farmers and performers. Some commenters stated that DHS's proposal to 
increase the Form I-129 fee was undermined by USCIS' failure to process 
O and P visa requests within the 14 days allotted by statute for 
certain petitions. See INA sec. 214(c)(6)(D), 8 U.S.C.1184(c)(6)(D). 
Commenters stated that any fee increase should be accompanied by 
improvements in petition processing and policies, particularly as 
related to H-1B, L-1, O and P visas.\26\
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    \26\ For additional information, see the section entitled, 
Improve Service and Reduce Inefficiencies.
---------------------------------------------------------------------------

    As noted previously, DHS is authorized to set fees at a level that 
ensures recovery of the full costs of providing immigration 
adjudication and naturalization services. Because USCIS relies almost 
entirely on fee revenue, in the absence of a fee schedule that ensures 
full cost recovery, USCIS would be unable to sustain an adequate level 
of service, let alone invest in program improvements. Full cost 
recovery means not only that fee-paying applicants and petitioners must 
pay their proportionate share of costs, but also that at least some 
fee-paying applicants and petitioners must pay a share of the 
immigration adjudication and naturalization services that DHS provides 
for vulnerable populations on a fee-exempt, fee-reduced, or fee-waived 
basis. DHS is therefore mindful to adhere to the standard USCIS fee-
setting methodology as often as possible, and to avoid overuse of DHS's 
discretion to eliminate or reduce fees for special groups of 
beneficiaries.
    The proposed fee for the Form I-129 resulted from application of 
the standard USCIS fee-setting methodology, because DHS did not find a 
compelling reason to shift the burden of the Form I-129 fee increase 
onto other applicants. Following consideration of the public comments, 
DHS retains the fee level expressed in the proposed rule. It is 
possible that in a limited number of cases a reduced fee would be more 
appropriate, but in the interest of fairness to all applicants and 
petitioners, as well as in the interest of the administration, this 
final rule sets a single fee for the Form I-129 at $460, as 
proposed.\27\
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    \27\ The Regulatory Flexibility Act discussion in the Statutory 
and Regulatory Requirements section addresses comments regarding the 
effect of the rule on small entities. As for processing delays, DHS 
has further addressed the operational and efficiency comments in the 
section of this preamble entitled, ``Improve Service and Reduce 
Inefficiencies.''

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[[Page 73300]]

d. Application To Register Permanent Residence or Adjust Status, Form 
I-485, and Interim Benefits
    In the NPRM, DHS proposed to continue offering travel document and 
employment authorization renewals free of charge during the pendency of 
an Application to Register Permanent Residence or Adjust Status, Form 
I-485, so long as the applicant filed the application with the 
appropriate fee on or after July 30, 2007. See 8 CFR 103.7(b)(1)(i)(M) 
(HH); proposed 8 CFR 103.7(b)(1)(i)(M), (II); 81 FR 26937. The 
associated forms are the Application for Travel Document, Form I-131, 
and Application for Employment Authorization, Form I-765. USCIS refers 
to travel document and employment authorization renewals as ``interim 
benefits'' when they are associated with a pending Form I-485. See 81 
FR 26918.
    DHS received several comments from individuals who applied to 
adjust status before July 30, 2007, and who thus do not qualify for 
free interim benefits. These commenters stated that their Form I-485 
applications have been pending since before July 30, 2007, and that 
because of the annual numerical visa limits established by Congress, 
they would likely need to request additional travel document and 
employment authorization renewals in the future.\28\ Some commenters 
stated that it is unfair to charge applicants for interim benefits 
while they are waiting for visas to become available. Another commenter 
noted that USCIS has recently started requiring refugees and asylees to 
pay the required fee associated with the Application for Employment 
Authorization when concurrently filed with Form I-485. The commenter 
stated that USCIS had not previously required payment of a fee for such 
an application.
---------------------------------------------------------------------------

    \28\ The U.S. Department of State (DOS) manages the allocation 
of visa numbers and Congress establishes the annual visa numerical 
limits.
---------------------------------------------------------------------------

    USCIS acknowledges that under current regulations and as proposed, 
employment-based Form I-485 applicants who filed before July 30, 2007, 
must continue to pay fees associated with interim benefits. Before the 
USCIS 2007 fee rule, DHS did not provide free interim benefits, and the 
Form I-485 fee was calculated without considering the potential costs 
of providing such benefits. See 75 FR 58968, 58982.\29\ The 2007 final 
rule increased the Form I-485 fee from $325 to $905, or 178 percent, 
mostly due to the decision to permit interim benefits without 
additional fees. 72 FR 29861. Because applicants for adjustment of 
status who filed before July 30, 2007, paid the lesser amount of $325 
when they filed their Form I-485, and because a decision to provide 
free interim benefits to this population would shift additional costs 
to other fee-paying applicants and petitioners, DHS has decided to not 
provide free interim benefits for those pending applicants.
---------------------------------------------------------------------------

    \29\ As explained in the 2007 proposed rule, the decision to 
provide free interim benefits is intended to restructure certain fee 
arrangements that some perceived as providing disincentives for 
USCIS to improve efficiency in processing. See 72 FR 4894. By 
bundling the Form I-485 and interim benefit costs, USCIS ensured 
that an applicant for adjustment of status will pay a single fee and 
will not pay separate fees for interim benefits, no matter how long 
the case remains pending. As a result, if USCIS is unable to process 
the base application within the established processing goals, an 
applicant who needs to travel or extend his or her employment 
authorization is not financially disadvantaged by the delay.
---------------------------------------------------------------------------

    USCIS has taken other actions to alleviate the filing burden and 
fees on those individuals whose applications are still pending due to 
the lack of available visas. For example, DHS now provides Employment 
Authorization Documents (EADs) with 2-year validity periods, instead of 
previously issued 1-year periods, which effectively reduces the fee per 
year.\30\ In addition, USCIS adopted a policy in December 2010 under 
which an applicant with a pending Form I-485 that was filed before 
August 18, 2007, may receive a combination advance parole document and 
EAD with a 2-year validity period. See Policy Memorandum, Issuance of 
Advance Parole Employment Authorization Document (Dec. 21, 2010).\31\ 
These longer approval periods have alleviated some of the burden 
described by the commenters.
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    \30\ USCIS may, in its discretion, determine the validity period 
assigned to any document issued evidencing an individual's 
authorization to work in the United States. 8 CFR 274a.12(b).
    \31\ See https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2011/April/issuance-advance-parole.pdf.
---------------------------------------------------------------------------

    With regard to the comment that USCIS is requiring refugees and 
asylees to pay for Form I-765 when filing it concurrently with Form I-
485, current regulations provide that Form I-765 has no fee if filed in 
conjunction with a pending or concurrently filed Form I-485 that was 
filed with a fee on or after July 30, 2007. See 8 CFR 
103.7(b)(1)(i)(M)(4). There is no fee for a refugee who is filing Form 
I-485. See 8 CFR 103.7(b)(1)(i)(U)(3). Therefore, although USCIS has 
waived the Form I-765 fee for the first such application filed by a 
refugee, a Form I-765 filed by a refugee to renew his or her EAD 
requires a fee.\32\ To renew interim benefits, a refugee who is filing 
a Form I-765 with Form I-485 must pay the Form I-765 fee or submit a 
Request for Fee Waiver, Form I-912. Similarly, if the refugee's 
employment authorization document expires before the Form I-485 is 
approved, he or she must file Form I-765 with a fee or request another 
fee waiver. Contrary to the commenter's statement, there has been no 
change in practice on this point.
---------------------------------------------------------------------------

    \32\ See Instructions for I-765, Application for Employment 
Authorization, available at https://www.uscis.gov/sites/default/files/files/form/i-765instr.pdf.
---------------------------------------------------------------------------

    Like almost all other applicants for adjustment of status, asylees 
are generally required to pay a fee for Form I-485; if they pay this 
fee, they receive free interim benefits as long as their Form I-485 is 
pending with USCIS. Asylees may request that both their Form I-485 and 
Form I-765 fees be waived. See 8 CFR 103.7(c)(3)(viii) & 
(c)(4)(iii).\33\ However, if USCIS waives the fee for the initial Form 
I-485, subsequent Form I-765 filings (for instance, to renew or replace 
a lost or expired EAD) require a fee or a new fee waiver request.\34\ 
Because fee waivers are available, because refugees and asylees are 
usually not subject to lengthy waiting periods associated with visa 
availability, and because of the importance of ensuring full-cost 
recovery, DHS did not find a compelling reason to shift fee burdens 
onto other fee-paying applicants and petitioners. Accordingly, DHS has 
not revised this policy in this final rule.
---------------------------------------------------------------------------

    \33\ Both fee waivers may be requested on one Request for Fee 
Waiver. See Instructions for Request for Fee Waiver at https://www.uscis.gov/sites/default/files/files/form/i-912instr.pdf.
    \34\ An asylee in this situation, like all individuals seeking 
to file a Form I-765, may still apply for a fee waiver. See 8 CFR 
103.7(c)(3)(viii).
---------------------------------------------------------------------------

    Finally, DHS also proposed to increase the separate Form I-485 fee 
that applies to a child under the age of 14 years who files a Form I-
485 concurrently with the application of a parent seeking 
classification as an immediate relative of a U.S. citizen, a family-
sponsored preference immigrant, or a family member accompanying or 
following to join a spouse or parent. DHS proposed a fee increase from 
$635 to $750, but did not propose any substantive changes to 
eligibility for the reduced fee. See 81 FR 26919.\35\ USCIS received at 
least one comment requesting that the proposed $750 discounted fee 
apply to all children under the age of 14 at any time, regardless of 
whether their Form I-485

[[Page 73301]]

was filed concurrently with the application of a parent. The commenter 
noted that such children, like the children who are currently eligible 
for the reduced Form I-485 fee, cannot work in the United States.
---------------------------------------------------------------------------

    \35\ Under the proposed rule and in this final rule, the 
standard fee for a Form I-485 would increase from $985 to $1,140.
---------------------------------------------------------------------------

    DHS proposed that the discounted Form I-485 fee would only be 
available when the Form I-485 is filed concurrently with the 
application of a parent seeking classification as an immediate relative 
of a U.S. citizen, a family-sponsored preference immigrant, or a family 
member accompanying or following to join a spouse or parent. See 
proposed 8 CFR 103.7(b)(1)(i)(U)(2); 81 FR 26938. DHS has considered 
the commenter's suggestion, but is unable to adopt it. USCIS does not 
track the completion rates (i.e., adjudication times) for Form I-485 
based on the age of the applicant, so the agency does not have data 
showing a difference in the completion rate correlated to the 
difference in applicant age. In addition, USCIS does not know the 
volume of individual Form I-485 filings by children on which to base a 
separate fee. To set that fee as suggested by the commenter would 
require deviation from the fee-setting methodology and, as stated 
previously in this preamble, require the costs for those applications 
to be shifted to other benefit requests. Therefore, DHS is not 
expanding the child discount to all children in this final rule.
    Nevertheless, while the current and proposed provisions limited the 
reduced fee only to children who are derivative applicants filing the 
Form I-485 at the same time as their parent, USCIS has in practice 
extended the reduced fee provision to all immigrant relative children 
under the age of 14 who file the Form I-485 at the same time as their 
parent (i.e., mailed in the same envelope), regardless of whether they 
are filing as a derivative or a principal applicant. Therefore, to make 
the regulation text consistent with the form instructions and USCIS 
practice, this final rule sets the fee for Form I-485 accordingly. See 
new 8 CFR 103.7(b)(1)(i)(U)(2).
e. Application for Travel Document, Form I-131
    In the NPRM, DHS proposed to increase the fee for the Application 
for Travel Document, Form I-131, from $360 to $575. See proposed 8 CFR 
103.7(b)(1)(i)(M); 81 FR 23937. The proposed fee increase was the 
result of application of the standard fee-setting methodology to this 
benefit request.
    Some commenters objected to the proposed increase. Some commenters 
noted that the forecasted fee-paying volume for Form I-131 has not 
changed significantly from the 2010 fee rule.\36\ Additionally, they 
pointed out that the Form I-131 has one of the shortest completion 
rates,\37\ indicating that it is not a relatively complex 
adjudication.\38\ Some of these commenters wrote that they have a 
pending Form I-485 that was filed before July 30, 2007, and that they 
are thus ineligible for free interim benefits, including being 
permitted to file Form I-131 without a fee while waiting for an 
immigrant visa to become available. See previous 8 CFR 
103.2(b)(1)(i)(M)(4). Some commenters stated that they have paid the 
Form I-131 fee several times while waiting for a visa to become 
available and that applicants from countries with long visa wait times 
must renew their travel documents every year, sometimes for multiple 
family members.\39\
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    \36\ See 75 FR 26923 for overall workload in table 4 and 75 FR 
26924 for fee-paying workload in table 5.
    \37\ USCIS completion rates are the average hours per 
adjudication of an immigration benefit request. Adjudication hours 
are divided by the number of completions for the same time period to 
determine an average completion rate. For additional information on 
completion rates, see Appendix IX--Completion Rates on page 57 of 
the supporting documentation.
    \38\ See Appendix Table 7: Completion Rates (Projected 
Adjudication Hours/Completions) on page 58 of the supporting 
documentation.
    \39\ Some commenters stated DHS should use a validity period of 
2 years instead of 1 year when extensions of Form I-131 are approved 
for this population. As noted earlier in this preamble, however, 
USCIS may grant an applicant who has a pending Form I-485 and 
interim benefits, such as advance parole, an employment 
authorization combination document with a 2-year validity period if 
the immigrant visa is not currently available. Adjudicator's Field 
Manual ch. 55.3, par. (a)(2). These longer approval periods have 
alleviated some of the burden on applicants with long-pending I-485 
applications.
---------------------------------------------------------------------------

    As noted previously, the proposed fee increase for the Form I-131 
was the result of application of the standard USCIS fee-setting 
methodology to this benefit request. When DHS departs from the standard 
USCIS fee-setting methodology to reduce fees for one group, fees for 
other groups (including, in this case, the fee for Form I-131) must be 
increased to recover full cost.
    With respect to the Form I-131 in particular, the proposed fee 
increase was also due in part to USCIS improving its ability to fully 
account for the costs of this benefit request. The FY 2016/2017 fee 
review included more complete data on the Application for Travel 
Document workload than was included in the 2010 final rule. As noted in 
the supporting documentation, the latest fee review considered the 
completion rates for work performed by International Operations,\40\ 
which adjudicates some Applications for Travel Documents, in the 
overall completion rates for Applications for Travel Documents. This 
information was not available for the FY 2010/2011 fee review, but it 
was included in this review to more accurately represent the cost of 
adjudicating an Application for Travel Document overseas. The proposed 
fee increase was due in part to USCIS including costs and time from 
International Operations in the model output for the Applications for 
Travel Documents fee. Ultimately, the proposed fee for Form I-131 
represents its proportion of USCIS operating costs, as dictated by the 
standard USCIS fee-setting methodology. If DHS held the fee for Form I-
131 below the amount suggested by the FY 2016/2017 fee-setting 
methodology, then the additional costs would be transferred to other 
immigration benefit fees.
---------------------------------------------------------------------------

    \40\ See International Operations Cost Allocation on page 26 of 
the supporting documentation.
---------------------------------------------------------------------------

    Because DHS did not find a compelling reason to transfer a portion 
of the Form I-131 fee increase to other applicants, DHS retains the fee 
proposed in the NPRM. DHS recognizes that this decision will affect 
different applicants differently; some applicants may file this 
application just once, while others may file it multiple times. But in 
the interest of fairness to all applicants and petitioners, as well as 
in the interest of sound and efficient adjudications, DHS has decided 
to not create additional levels of fees for the Form I-131. This final 
rule sets a fee of $575 for the Form I-131, with appropriate exceptions 
for refugee travel documents, as discussed below. Nevertheless, Form I-
131 requests for parole filed on behalf of individuals outside the 
United States, including humanitarian parole, remain eligible for a fee 
waiver. 8 CFR 103.7(c)(3)(iv).
    Finally, at least one commenter questioned why DHS did not propose 
a new fee for refugee travel documents. As noted in the NPRM, fees for 
a refugee travel document are set at a level that is consistent with 
U.S. obligations under Article 28 of the 1951 Convention relating to 
the Status of Refugees, as incorporated by reference in the 1967 
Convention relating to the Status of Refugees. See 81 FR 26917. The fee 
must remain set at an amount that is consistent with U.S. obligations 
under Article 28. Therefore, fees for refugee travel documents will 
remain the same as DOS passport book fees.\41\
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    \41\ The Refugee Travel Document fees are the same as the sum of 
the U.S. passport book application fee plus the additional execution 
fee that the Department of State charges for first-time applicants.

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[[Page 73302]]

f. Application for Employment Authorization, Form I-765, and Students
    In the NPRM, DHS proposed to increase the fee for the Application 
for Employment Authorization, Form I-765, from $380 to $410. See 
proposed 8 CFR 103.7(b)(1)(i)(II); 81 FR 26938. DHS proposed to limit 
the increase for these benefit types (among others) to 8 percent for 
humanitarian and practical reasons. Many individuals seeking 
immigration benefits face financial obstacles and cannot earn money 
through lawful employment in the United States until they receive an 
Employment Authorization Document (EAD). 81 FR 26916.
    At least one commenter objected to the potential effect of the 
proposed Form I-765 fee increase on foreign students seeking work 
authorization under the Optional Practical Training (OPT) program. The 
OPT program allows an F-1 nonimmigrant student to file a Form I-765 to 
request authorization to work in the United States in a position that 
is directly related to the F-1 student's major area of study. See 8 CFR 
214.2(f)(10)(ii)(C). OPT provides F-1 students with an opportunity to 
apply knowledge gained in the classroom to practical work experience 
off campus.
    DHS places a high value on its role in attracting international 
students and scholars to the United States. Among other things, the 
contributions to U.S. educational institutions provided by a diverse 
international student body are invaluable. In recognition of these 
goals, USCIS devotes many resources to delivering immigration benefits 
to deserving students, including expending substantial resources, which 
DHS must recover, to adjudicate their eligibility for EADs. In 
addition, DHS limited the proposed EAD fee increase in a manner 
consistent with a number of other fees. See 81 FR 26916. Moreover, F-1 
students may request fee waivers in cases in which they are unable to 
afford the fee. In other cases, USCIS will continue to charge the full 
fee based on the effort and resources expended to process this benefit. 
This final rule therefore sets the fee at $410, as proposed. See new 8 
CFR 103.7(b)(1)(i)(II).
g. Application for Replacement Naturalization/Citizenship Certificate, 
Form N-565
    In the NPRM, DHS proposed to increase the fee for the Application 
for Replacement Naturalization/Citizenship Certificate, Form N-565, 
from $345 to $555, or 61 percent. The proposed fee increase was the 
result of application of the standard fee-setting methodology to this 
benefit request.
    Commenters mentioned that some people could lose proof of 
citizenship or naturalization due to unforeseen circumstances, such as 
natural disasters or theft, and that a steep increase might make it 
more difficult for certain individuals to obtain replacement documents. 
Other commenters noted that citizens may need a certificate of 
naturalization or citizenship due to a name change. Commenters stated 
that the more prohibitively expensive it becomes for foreign-born U.S. 
citizens to replace documentation of their citizenship, the more 
difficult it will be for them to work, vote, or pursue other 
opportunities.
    Commenters noted that the completion rate for Form N-565 increased 
significantly since the 2010 final rule. Some commenters compared the 
completion rate for Form N-565 to that of the Application to Replace 
Permanent Resident Card, Form I-90, and stated that the two 
adjudications should be similar. Those commenters noted that the 
completion rate for Form I-90 decreased since the 2010 final rule, 
while the Form N-565 completion rate increased by 64 percent. Some 
commenters stated that USCIS should further assess why the completion 
rate for Form N-565 increased to this degree.
    DHS acknowledges that the Form N-565 adjudication time has 
increased over the years, and attributes this increase to the amount of 
research and review necessary to adjudicate these filings. Form N-565 
adjudications require USCIS to fully review A-Files for security check 
purposes, including discovering name variations or aliases. To verify 
the naturalization of an applicant, USCIS officers must research all 
available systems. Yet many filings involve individuals who were 
naturalized decades ago and whose information is not contained in 
electronic systems, thus requiring extensive paper-based review. USCIS 
officers may also have to communicate with the National Archives and 
Records Administration or the Federal courts to obtain evidence 
supporting naturalization. In some cases, paper files must be 
transferred to a field office to conduct an interview of the applicant. 
Changes in name, marital status, gender, or other facts require 
evidentiary review to support requested changes in USCIS records. No 
filing fee is required in cases where the Form N-565 is filed to 
request correction of a certificate that contains an error, but even 
such filings require that USCIS fully review the relevant A-Files. DHS 
further notes that the processing of Form N-565 often requires the same 
use of time and resources by USCIS regardless of the basis for the 
request.
    Moreover, the fee for Form I-90 differs from the fee for Form N-565 
because the adjudication of the two forms differs. LPRs typically apply 
for new permanent resident cards every 10 years. Their information is 
thus generally up-to-date and readily available in an electronic 
system, thus eliminating the need for full A-File reviews when 
adjudicating Forms I-90. In addition, Form I-90 adjudication is 
streamlined and partially automated because the application exists in 
an electronic environment. Filings that involve information that is up-
to-date and available in an electronic system generally require less 
processing time than filings that require review of physical records or 
multiple systems, or that require the entry of new data.
    As noted, the proposed fee for Form N-565 resulted from application 
of the standard USCIS fee-setting methodology. Because DHS did not find 
a compelling reason to shift the burden of the Form N-565 fee increase 
onto other applicants, DHS retains the position expressed in the 
proposed rule. This final rule sets the fee for Form N-565 at $555, as 
proposed. Applicants who cannot pay the fee may request a fee waiver. 8 
CFR 103.7(c)(3)(xv).
h. Petition for Alien Relative, Form I-130
    In the NPRM, DHS proposed to increase the fee for the Petition for 
Alien Relative, Form I-130, from $420 to $535. See proposed 8 CFR 
103.7(b)(1)(i)(L); 81 FR 26937. The proposed fee increase was the 
result of application of the standard USCIS fee-setting methodology to 
this benefit request.
    Several commenters stated that they generally opposed the proposed 
increase in the Form I-130 fee because the increase, along with other 
proposed increases, would result in a significant financial burden for 
certain individuals, especially for low-income immigrants and their 
families. Some commenters asserted that the proposed increase of $115 
would be disproportionate to the current adjudication time of 45 
minutes. Another commenter suggested that fees be higher for businesses 
in order to offset the cost for family-based applicants. The same 
commenter referenced existing additional fees for H-1B visas and 
asserted that DHS should increase fees for O and P visas

[[Page 73303]]

to offset the cost of, and reduce the fees for, family-based 
immigration benefit requests. One commenter noted that Form I-130 
filings are not eligible for fee waivers.
    DHS appreciates the concerns of commenters, but reiterates that 
because USCIS is funded almost exclusively by fees, it sets the USCIS 
fee schedule based on a full cost recovery model. This means that 
although there is a relationship between the proposed fee and the 
projected adjudication time of 45 minutes, DHS cannot set fees at a 
level that would only recover costs for an individual adjudicator's 
time. In order for USCIS to continue to fulfill its mission, DHS must 
set fees at a level that accounts for the total resources required for 
intake of immigration benefit requests, customer support, fraud 
detection, background checks, and administration. Moreover, because DHS 
provides some immigration adjudication and naturalization services 
(including for families) on a fee-exempt, fee-reduced, or fee-waived 
basis, fee-paying applicants and petitioners must at times pay more 
than their directly attributable share of costs.
    In the case of the Form I-130, the primary reason for the proposed 
fee increase was the increase in USCIS' cost baseline for FY 2016/2017, 
and specifically the need to cover the costs of certain fee-exempt 
services. As noted in the NPRM and in this final rule, the FY 2016/2017 
fee schedule adjusts fees to recover the costs related to RAIO, the 
SAVE program, and the Office of Citizenship. See 81 FR 26910. In the FY 
2010/2011 fee review, the model output for Form I-130 was approximately 
$368 before cost reallocation. Cost reallocation was smaller in the FY 
2010/2011 fee review because USCIS assumed that appropriations would 
recover surcharges related to RAIO, the SAVE program, and the Office of 
Citizenship. In the FY 2016/2017 fee review, the model output for Form 
I-130, before cost reallocation, was approximately $383.\42\ As 
mentioned in the NPRM, in the FY 2016/2017 fee review, USCIS included 
RAIO, the SAVE program, and the Office of Citizenship in the cost 
baseline. As shown in the supporting documentation, the fee includes 
$152 above the model output to ensure that IEFA fees recover full 
cost.\43\ The $152 provides revenue for services that do not otherwise 
generate revenue (e.g., refugee, asylum, and fee-waived workloads) and 
for forms that are held to the 8 percent weighted average increase 
based on policy decisions (e.g., forms N-400 and I-600/600A/800/800A).
---------------------------------------------------------------------------

    \42\ Projected cost refers to the model output column of 
Appendix Table 4: Proposed Fees by Immigration Benefit Request in 
the supporting documentation.
    \43\ The amount here is the difference between the Model Output 
and the final fee. Amounts shown in Appendix Table 4: Proposed Fees 
by Immigration Benefit Request in the supporting documentation are 
rounded to the nearest dollar and all IEFA fees are rounded to the 
nearest $5 increment. The sum of the Model Output and the Cost 
Reallocation columns may not equal the proposed fee because of 
rounding.
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    DHS recognizes the burden that proposed fee increases impose on 
families and low-income individuals, and takes steps to mitigate that 
burden as appropriate. Specifically, after USCIS applies its standard 
fee-setting methodology to identify the model output for each benefit 
request, USCIS evaluates the model output and determines whether it 
should be adjusted. However, downward adjustments for some groups 
result in upward adjustments for other groups. There are many benefit 
requests that are used by families and low-income individuals, and it 
would be unsustainable and arguably unfair for USCIS to consistently 
shift the costs of all such requests to a completely unrelated subgroup 
of business immigration applicants and petitioners. With that context 
in mind, and following review of the public comments received, DHS has 
determined that the amount recommended under the fee-setting 
methodology was not inordinately high. Thus, DHS is adjusting the fee 
for Form I-130 in this final rule, as proposed. Moreover, as stated in 
the ``Fee Waivers and Exemptions'' section of this preamble, fee 
waivers are not provided for forms, such as Form I-130, that require 
petitioners to have the ability to support their intended beneficiary. 
DHS believes that this is sound overall policy, especially in light of 
the effects of fee waivers on the fees paid by other applicants and 
petitioners.
i. Application To Replace Permanent Resident Card, Form I-90
    In the NPRM, DHS proposed to increase the fee for the Application 
to Replace Permanent Resident Card, Form I-90, from $365 to $455. See 
proposed 8 CFR 103.7(b)(1)(i)(G); 81 FR 26937. The proposed fee 
increase was the result of application of the standard USCIS fee-
setting methodology to this benefit request.
    A number of commenters objected to the proposed fee increase. Some 
commenters stated that the proposed fee was unjustified by the 
projected completion rate of 13 minutes. The commenters noted that 
although the proposed fee represents a significant increase, the 
projected completion rate had decreased slightly since the 2010 final 
rule. A commenter stated that the proposed increase would impose an 
unreasonable burden on many low-income applicants, especially when the 
reason for application may be out of their control, such as owning a 
prior edition of the card, expiration of the card between the 
individual's 14th and 16th birthday, a name change, or a change in 
commuter status.
    Some commenters stated that USCIS guidance advises naturalization 
applicants to file Form I-90 if their permanent resident cards will 
expire within six months of the filing of their naturalization 
applications, and that USCIS sometimes requires naturalization 
applicants to file Form I-90 before completion of the Form N-400 
adjudication. These commenters suggested that as a result, some 
applicants may file a Form I-90 and a Form N-400 in quick succession, 
and that DHS should reduce the combined fee burden for these two forms. 
The commenters suggested that DHS provide a discounted or partial fee 
for naturalization applicants who are required to file Form I-90.
    As noted elsewhere in this preamble, because USCIS is funded almost 
exclusively by fees, DHS sets the USCIS fee schedule based on a full 
cost recovery model. This means that although there is a relationship 
between the proposed fee and the projected adjudication time of 13 
minutes, DHS cannot set fees at a level that would only recover costs 
for an individual adjudicator's time. In order for USCIS to continue to 
fulfill its mission, DHS must set fees at a level that accounts for the 
total resources required for intake of immigration benefit requests, 
customer support, fraud detection, background checks, and 
administration. Moreover, because DHS provides some immigration 
adjudication and naturalization services on a fee-exempt, fee-reduced, 
or fee-waived basis, fee-paying applicants and petitioners must pay 
more than their directly attributable share of costs.
    In the case of the Form I-90, the primary reason for the proposed 
fee increase is the increase in the USCIS cost baseline for FY 2016/
2017, and specifically the need to cover the costs of certain fee-
exempt services. As noted in the NPRM and this final rule, the FY 2016/
2017 fee schedule recovers costs related to RAIO, the SAVE program, and 
the Office of Citizenship. See 81 FR 26910. In the FY 2010/2011 fee 
review, the model output fee for Form I-90 was

[[Page 73304]]

approximately $321 before cost reallocation. Cost reallocation was 
smaller in the FY 2010/2011 fee review, because USCIS assumed 
appropriations that would recover the costs for RAIO, the SAVE program, 
and the Office of Citizenship. In the FY 2016/2017 fee review, the 
model output fee for Form I-90 was approximately $326, also before cost 
reallocation.\44\ But, as mentioned in the NPRM, USCIS included the 
above mentioned programs in cost reallocation to recover the full cost 
of those programs. As shown in the supporting documentation, the fee is 
$129 above the model output fee to ensure that IEFA fees recover full 
cost.\45\ The $129 provides revenue for services that do not otherwise 
generate revenue (e.g., refugee, asylum, and fee-waived workloads) and 
for request types that are held to the 8 percent weighted average 
increase based on policy decisions (e.g., Forms N-400 and I-600/600A/
800/800A).
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    \44\ See Appendix Table 4: Proposed Fees by Immigration Benefit 
Request in the supporting documentation.
    \45\ Amounts shown in Appendix Table 4: Proposed Fees by 
Immigration Benefit Request in the supporting documentation are 
rounded to the nearest dollar and all IEFA fees are rounded to the 
nearest $5 increment. The sum of the Model Output and the Cost 
Reallocation columns may not equal the proposed fee because of 
rounding.
---------------------------------------------------------------------------

    DHS recognizes that the proposed Form I-90 fee increase would 
impose an additional cost burden on filers. But the proposed fee 
increase results from application of the standard USCIS fee-setting 
methodology, and a downward adjustment favoring all Form I-90 filers, 
or a subgroup thereof, would result in upward adjustment of other fees. 
DHS has decided to impose this fee at the level dictated by the 
standard USCIS fee-setting methodology, as proposed. If applicants 
cannot afford to pay the increased Form I-90 fee, they may request a 
fee waiver. 8 CFR 103.7(c)(3)(ii).
    With respect to the comments concerning naturalization applicants 
who are required to file a Form I-90 if their permanent resident card 
will expire within six months of filing the naturalization application, 
DHS notes that this is not a change in practice. LPRs are required to 
have valid, unexpired Permanent Resident Cards, Forms I-551, in their 
possession at all times, see INA sec. 264(e), 8 U.S.C. 1304(e), and DHS 
regulations require LPRs to file Form I-90 when those cards are set to 
expire in six months, see 8 CFR 264.5(b)(2). For this reason, an LPR 
with fewer than six months remaining on his or her permanent resident 
card must generally file Form I-90, with fee, even if the LPR has 
applied for naturalization.\46\ In other words, applying for 
naturalization does not eliminate the need to file Form I-90 when a 
permanent resident card is about to expire. If Form I-90 is properly 
filed, or if Form N-400 is filed at least six months before the 
expiration of the applicant's permanent resident card, the applicant 
can request an Alien Documentation Identification and Telecommunication 
(ADIT) stamp in lieu of filing for a new card.
---------------------------------------------------------------------------

    \46\ For additional information, see https://www.uscis.gov/i-90 
and https://www.uscis.gov/green-card/after-green-card-granted/renew-green-card.
---------------------------------------------------------------------------

    DHS observes that a permanent resident card generally does not 
expire until 10 years after it is received by the LPR. For individuals 
who are familiar with the regulatory requirements,\47\ this should be 
sufficient time for the applicant to take appropriate action, including 
renewing the card or naturalizing before the card expires.\48\ 
Generally, LPRs become eligible to naturalize after 5 years of 
obtaining LPR status, see, e.g., 8 CFR 316.2(a)(3), and the average 
processing time for an application for naturalization is approximately 
6 months. Therefore, individuals who receive LPR status have ample time 
during which they may save for fees, gather documents, and apply for 
naturalization before their permanent resident card expires. Moreover, 
creating a new process and discounted fee for those Form I-90 
applicants who wish to naturalize would increase the administrative 
burden of administering both Form I-90 and Form N-400. For the reasons 
stated above, this final rule sets the Form I-90 fee at $455, as 
proposed, regardless of whether the applicant will also file Form N-400 
in the near term.
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    \47\ USCIS also provides educational products and resources to 
welcome immigrants, promote English language learning, educate on 
rights and responsibilities of citizenship, and prepare immigrants 
for naturalization and civic participation. In addition, USCIS 
provides grants, materials and technical assistance to organizations 
that prepare immigrants for citizenship. The USCIS Citizenship 
Resource Center helps users better understand the citizenship 
process and gain the necessary skills required to be successful 
during the naturalization interview and test. See https://www.uscis.gov/us-citizenship/naturalization-test/applicant-performance-naturalization-test/uscis-citizenship-education-resources-and-initiatives.
    \48\ See https://www.uscis.gov/green-card/after-green-card-granted/renew-green-card.
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j. Genealogy, Forms G-1041/1041A
    In the NPRM, DHS proposed to increase fees for the Genealogy Index 
Search Request, Form G-1041, and Genealogy Records Request, Form G-
1041A, from $20 or $35, depending on the format requested, to a single 
fee of $65. See proposed 8 CFR 103.7(b)(1)(i)(E)-(F); 81 FR 23967. As 
noted in the NPRM, DHS based the proposed fee increase on the ABC model 
output fee of $46 for genealogy services, as well as an additional $19 
to recover the applicable administrative costs associated with funding 
these services, such as the USCIS Librarian and other genealogy 
research and information services. 81 FR 26919 (citing INA sec. 
286(t)(1), 8 U.S.C. 1356(t)(1)).
    Some commenters objected to the proposed fee increase. Some of 
these commenters compared the genealogy fees to state and local 
government fees for copies of vital records. Some commenters stated 
that the quality and efficiency of genealogy services were insufficient 
to justify the proposed fee increase.\49\
---------------------------------------------------------------------------

    \49\ At least one commenter questioned why USCIS proposed to 
collect the biometric services fee for the genealogy workload. While 
DHS is revising 8 CFR 103.2(b)(9) to clarify that any individual 
filing a benefit request, or any beneficiary of such a request, may 
be required to appear for biometric collection and pay the biometric 
services fee, DHS did not propose to and will not collect the 
biometric services fee for genealogy searches or document requests. 
See 81 FR 26917.
---------------------------------------------------------------------------

    USCIS does not receive any appropriations for its genealogy program 
and thus depends on genealogy fees to cover costs, without increasing 
other immigration and naturalization fees to support this work. 
Genealogy fees have not been adjusted since USCIS created the program 
in 2008,\50\ and such fees are currently insufficient to cover the full 
costs of the genealogy program. USCIS created the Genealogy Program to 
serve people performing genealogy research, including historical 
researchers, genealogists, and other members of the public, without 
diverting resources from the significant number of Freedom of 
Information Act requests to which USCIS must respond.\51\ USCIS thus 
proposed to increase the fee to meet the full costs of the program and 
permit USCIS to respond to requests for such historical records and 
materials. Notwithstanding the fees charged by other government 
agencies, which likely face different operational and funding 
challenges, USCIS must ensure that it has sufficient funding to fulfill 
its mission. Following consideration of the comments on this subject, 
DHS has decided to set the final fee at $65, as proposed.
---------------------------------------------------------------------------

    \50\ See 81 FR 26919; Final Rule, Establishment of a Genealogy 
Program, 73 FR 28026 (May 15, 2008).
    \51\ Prior to the establishment of the Genealogy Program, 
genealogy researchers used the Freedom of Information Act process to 
conduct their research.

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[[Page 73305]]

k. Petition To Remove Conditions on Residence, Form I-751
    In the NPRM, DHS proposed to increase the fee for the Petition to 
Remove Conditions on Residence, Form I-751, from $505 to $595. Proposed 
8 CFR 103.7(b)(1)(i)(HH); 81 FR 23968. The proposed fee increase was 
the result of application of the standard USCIS fee methodology to this 
benefit request.
    Some commenters objected to the proposed fee increase. These 
commenters stated that Form I-751 is required for people who were 
granted conditional permanent residence through marriage, including 
spouses of U.S. citizens and their children, to remove the conditions 
on their status. The commenters asserted that the new fee is so 
burdensome that some applicants may miss their deadline to apply, 
putting those applicants at risk of losing their residency and becoming 
subject to removal from the United States. A commenter stated that in 
2010, DHS increased the I-751 filing fee by $40. The commenter stated 
that to now increase it again by another $90 is unjustified, 
particularly when USCIS estimates that its projected workload volume 
for Form I-751 will decrease by 10,000 receipts from 2010/2011 levels. 
The commenter stated that if I-751 workloads will decrease, there is no 
justification for an 18 percent fee increase.
    As noted previously in this preamble, because USCIS operates almost 
exclusively on fees, DHS sets the USCIS fee schedule based on a 
standard full cost recovery model. This means that DHS must account for 
more than just projected total receipts when setting the fee for a 
given benefit. For instance, DHS must account for the likelihood of fee 
waivers by setting fees based on projected total fee-paying receipts, 
not just projected total receipts. And DHS must also account for the 
costs associated with adjudicating each benefit request. If DHS did not 
account for fee waivers when setting fees, or for the cost of 
adjudicating benefit requests, DHS would not recover sufficient revenue 
to cover the cost of the services that DHS provides. Moreover, because 
DHS provides some immigration adjudication and naturalization services 
on a fee-exempt, fee-reduced, or fee-waived basis, fee-paying 
applicants and petitioners must pay more than their directly 
attributable share of costs.
    In addition, in the case of the Form I-751 specifically, although 
workload volume decreased 5.5 percent since the 2010 final rule, fee-
paying volume decreased at a greater rate of 8.4 percent. Moreover, the 
completion rate, or the average hours per adjudication, increased 39 
percent since the 2010 final rule. Given that fewer fee-paying 
applicants are now absorbing the increased costs associated with longer 
adjudications, DHS believes the proposed $90 increase since the fee was 
last set six years ago is reasonable. Although the proposed increase 
would impose an additional cost burden on filers, it results from 
application of the standard USCIS fee methodology. A downward 
adjustment in favor of Form I-751 petitioners would result in upward 
adjustment of other fees. Furthermore, if the petitioner cannot pay the 
fee, they may request that the fee be waived. See 8 CFR 
103.7(c)(3)(vii). Therefore, this final rule sets the Form I-751 fee at 
$595, as proposed.
l. Petition for Alien fiancé(e), Form I-129F
    In the NPRM, DHS proposed to increase the fee for the Petition for 
Alien fiancé(e), Form I-129F, from to $340 to $535. See proposed 
8 CFR 103.7(b)(1)(i)(K); 81 FR 23967. The proposed fee increase was the 
result of application of the standard USCIS fee methodology to this 
benefit request.
    Some commenters objected to the proposed fee increase, stating that 
it could discourage family reunification. The commenters stated that 
the increase would be particularly burdensome because there is no fee 
waiver option when filing this form.
    As noted previously, DHS is authorized to set fees at a level that 
ensures recovery of the full costs of providing immigration 
adjudication and naturalization services. Because USCIS relies almost 
entirely on fee revenue, in the absence of a fee schedule that ensures 
full cost recovery, USCIS would be unable to sustain an adequate level 
of service, let alone invest in program improvements. Full cost 
recovery means not only that fee-paying applicants and petitioners must 
pay their proportionate share of costs, but also that at least some 
fee-paying applicants and petitioners must pay a share of the 
immigration adjudication and naturalization services that DHS provides 
on a fee-exempt, fee-reduced, or fee-waived basis. DHS is therefore 
mindful to adhere to the standard USCIS fee methodology as often as 
possible, and to avoid overuse of DHS's discretion to eliminate or 
reduce fees for special groups of beneficiaries.
    The proposed fee for the Form I-129F resulted from application of 
the standard USCIS fee methodology. DHS values its role in assisting 
U.S. citizens who wish to bring a foreign national fiancé(e) to 
the United States to marry, and is sensitive to the extra burden that 
the increased filing fee may impose. But if USCIS were to waive or 
exempt Form I-129F fees, then other applicants, petitioners, and 
requestors would pay higher fees to cover the cost. Because DHS did not 
find a compelling reason to shift the burden of the Form I-129F fee 
increase onto other applicants, this final rule sets the Form I-129F 
fee at $535, as proposed.
    Moreover, as a general matter, DHS does not waive fees for 
petitions that require the beneficiaries to demonstrate that they will 
be able to support themselves financially, or that require the filing 
of an affidavit of support. A citizen who files Form I-129F must 
document his or her ability to financially support his or her foreign 
national fiancé(e). Because a few waiver options would be 
inconsistent with this financial support requirement, DHS declines to 
allow fee waivers for this form.
m. Petition for Amerasian, Widow(er), or Special Immigrant, Form I-360
    In the NPRM, DHS proposed to increase the fee for the Petition for 
Amerasian, Widow(er), or Special Immigrant, Form I-360, from $405 to 
$435. Proposed 8 CFR 103.7(b)(1)(i)(T); 81 FR 23968. DHS proposed to 
hold the increase for these benefit types to an 8 percent increase \52\ 
because the combined effect of cost, fee-paying volume, and methodology 
changes since the last fee rule would otherwise place an inordinate fee 
burden on individuals requesting these types of benefits. See 81 FR 
26915.
---------------------------------------------------------------------------

    \52\ The proposed increase was 7.4 percent due to rounding.
---------------------------------------------------------------------------

    Some commenters objected to the proposed fee increase because of 
its potential effect on religious workers. The commenters stated that 
religious workers must file additional forms and pay the required fees 
to obtain LPR status. The commenters noted that these workers benefit 
the United States by becoming integral parts of their religious 
ministries, participating in community outreach, and making specific 
connections with immigrants who speak the same language. For these 
reasons, the commenters requested that the agency not finalize the 
proposed fee increase.
    Form I-360 may be used to obtain any of a large number of 
immigration benefits, some of which allow petitioners to file the form 
on a fee-exempt basis.\53\ Many petitioners may

[[Page 73306]]

use the Form I-360 on a fee-exempt basis. For example, there is no fee 
for a petitioner seeking classification as an Amerasian; an individual 
self-petitioning as a battered or abused spouse, parent, or child of a 
United States citizen or LPR; a petitioner seeking Special Immigrant 
Juvenile status; or an Iraqi or Afghan national who worked for, or on 
behalf of, the U.S. Government in Iraq or Afghanistan. Previous 8 CFR 
103.7(b)(1)(i)(T)(1)-(4).
---------------------------------------------------------------------------

    \53\ See https://www.uscis.gov/i-360.
---------------------------------------------------------------------------

    For those petitioners who are not fee-exempt, DHS recognizes that 
fee increases impose a burden, and DHS takes steps to mitigate such 
burdens as appropriate. At the same time, DHS must recover the full 
costs of the services that USCIS provides, or else risk reductions in 
service quality. In this case, DHS proposed to apply the reduced fee 
increase (8 percent) to the Form I-360, for the reasons stated 
previously and consistent with DHS's practice of holding a number of 
benefit requests to this reduced fee increase. DHS was mindful that 
this departure from the standard fee methodology would also result in 
higher fees for others. See 81 FR 26915. Although DHS acknowledges the 
importance of the religious worker program to many communities, any 
further departure would only heighten the effect on the rest of the fee 
schedule, and would not be consistent with DHS's overall fee 
methodology. In addition, unlike many of the fee-exempt Form I-360 
petitioners, religious workers fall into the category of employment-
based immigrants for whom petitioners must demonstrate the ability to 
pay a salary. See, e.g., 8 CFR 204.5(g)(2) (requiring a petition which 
requires an offer of employment to be accompanied by evidence that the 
prospective United States employer has the ability to pay the proffered 
wage). This final rule therefore sets the fee for Form I-360 at $435, 
as proposed.
n. Notice of Appeal or Motion, Form I-290B
    DHS proposed to increase the fee for the Notice of Appeal or 
Motion, Form I-290B, from to $630 to $675. Proposed 8 CFR 
103.7(b)(1)(i)(S); 81 FR 26938. DHS proposed to hold the increase for 
these benefit types to 8 percent \54\ because the combined effect of 
cost, fee-paying volume, and methodology changes since the last fee 
rule would otherwise place an inordinate fee burden on the particular 
individuals requesting these types of benefits. See 81 FR 26915.
---------------------------------------------------------------------------

    \54\ The proposed increase was 7.1 percent due to rounding.
---------------------------------------------------------------------------

    Some commenters objected to the proposed fee increase. Commenters 
stated that the resulting fee, though waivable,\55\ could hinder 
individuals from receiving benefits for which they are eligible. The 
commenters noted that the time involved in submitting fee waiver 
requests jeopardized the chance of meeting the 30-day filing deadline 
for appeals. Commenters also expressed disappointment in the appeals 
process in general, opining that it was particularly burdensome for 
those attempting to rectify USCIS errors. Commenters also stated that 
USCIS should allow credit card payments for filing Form I-290B.
---------------------------------------------------------------------------

    \55\ If the Form I-290B is being filed to appeal or reopen the 
denial of an immigration benefit request that is exempt or where a 
fee has been waived, the Form I-290B fee may also be waived by USCIS 
if the applicant or petitioner demonstrates that he or she is unable 
to pay the fee. 8 CFR 103.7(c)(3)(vi) and 103.7(c)(1)(iii). Further, 
there is no fee for Form I-290B when an Iraqi or Afghan national who 
worked for, or on behalf of, the U.S. Government in Iraq or 
Afghanistan appeals a denial of a petition for a special immigrant 
visa. 8 CFR 103.7(b)(1)(i)(S).
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    DHS appreciates the concerns of the commenters and does not intend 
to hinder individuals from receiving benefits for which they are 
eligible. At the same time, DHS must recover the full costs of the 
services that USCIS provides, or else risk reductions in service 
quality. In this case, DHS proposed to apply the reduced fee increase 
(8 percent) to these benefit requests, for the reasons stated 
previously and consistent with DHS's practice of holding a number of 
benefit requests to this reduced fee increase. DHS was mindful that 
although this departure from the standard fee methodology would result 
in lower fees for Form I-290B filers, it would also results in higher 
fees for others. 81 FR 26915. Any further departure would only increase 
the effect on the rest of the fee schedule, and would not be consistent 
with DHS's overall fee methodology. DHS addresses requests for service 
quality improvements and credit card payments later in this preamble. 
DHS has made no changes to the fee in this final rule as a result of 
these comments, and is finalizing the Form I-290B fee at $675, as 
proposed.
o. Application for Civil Surgeon Designation, Form I-910
    In the NPRM, DHS proposed to increase the fee for the Application 
for Civil Surgeon Designation, Form I-910, from $615 to $785. See 
proposed 8 CFR 103.7(b)(1)(i)(TT); 81 FR 26939. Form I-910 is used to 
request recognition of a physician as a civil surgeon for purposes of 
performing mandatory medical examinations on intending immigrants to 
determine whether they are inadmissible based on health-related 
grounds. See 8 CFR 232.2(b). The proposed fee increase was the result 
of application of the standard USCIS fee methodology to this benefit 
request.
    At least one commenter stated that the proposed increase may have a 
chilling effect on requests from physicians to become approved civil 
surgeons. The commenter suggested the possibility of employing a 
tiered-fee structure, in which USCIS would offer a lower application 
fee in exchange for a physician's commitment to discount fees for 
vulnerable children and youth and other indigent applicants.
    As noted, the proposed fee increase for the Form I-910 was the 
result of application of the standard USCIS fee methodology to this 
benefit request. When DHS departs from the standard USCIS fee 
methodology to reduce fees for one group, fees for other groups 
increase to recover full cost. With respect to the proposal to 
establish a tiered fee structure for the application, implementing such 
fees would require eligibility and evidentiary requirements for each 
fee and income level established. This would add administrative 
complexity, and further increase costs. Additionally, USCIS would not 
know whether such civil surgeons complied with their commitments to 
charge lower fees without regulating and monitoring those civil 
surgeons, and incurring the time and costs to do so. Accordingly, no 
changes were made in this final rule, which sets the Form I-910 fee at 
$785, as proposed.
p. Application for Advance Permission To Enter as a Nonimmigrant, Form 
I-192, and Application for Waiver of Passport and/or Visa, Form I-193
    In the NPRM, DHS proposed to increase the fee for the Application 
for Advance Permission to Enter as a Nonimmigrant, Form I-192, and 
Application for Waiver of Passport and/or Visa, Form I-193, from $585 
to $930. See proposed 8 CFR 103.7(b)(1)(i)(P); 81 FR 26938. The 
proposed fee increase was the result of application of the standard 
USCIS fee methodology to this benefit request. In the FY 2016/2017 fee 
review, USCIS grouped these benefit requests with other similar benefit 
requests, specifically, Forms I-191, I-212, I-601, and I-612.
    One commenter stated that for certain filers, CBP, and not USCIS, 
adjudicates the benefit request.\56\ The commenter stated that it would 
be unfair to increase

[[Page 73307]]

the fee for Form I-192 applications adjudicated by CBP, because those 
adjudications do not increase USCIS costs.\57\ The commenter stated 
that the proposed increase in the fee for Form I-192 would burden 
Canadian and Bermudan nonimmigrant waiver applicants in particular, 
because unlike other nonimmigrant waiver applicants who submit their 
applications at the same time as visa applications at no additional 
charge, Canadians and Bermudans do not require a visa to enter the 
United States, and thus pay the full filing fee to submit the waiver 
application. The commenter stated that an increase in the filing fee 
will hurt local economies in border towns because ``every dollar spent 
on a waiver application is a dollar not spent on tourism or retail.'' 
The commenter did not provide further data or analysis on the potential 
impact of the proposed fee increase on such economies.
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    \56\ The commenter acknowledged that USCIS adjudicates Form I-
192 for T and U nonimmigrants.
    \57\ The commenter did not mention Form I-193 applications, but 
such applications are similarly affected by this rulemaking.
---------------------------------------------------------------------------

    In response to this comment, DHS is not implementing the fee 
increase proposed in the NPRM with respect to those Forms I-192 filed 
with and processed by CBP, and all Forms I-193. CBP uses the fee 
revenue from these forms to defray its own costs related to such 
processing. The FY 2016/2017 fee review and resulting proposed fee 
change was based on USCIS's costs for processing inadmissibility 
waivers. Therefore, under this final rule, DHS adjusts only the fee for 
those Forms I-192 filed with and processed by USCIS. Consequently, Form 
I-192 will have two fees--$585 for those filed with CBP and $930 for 
those filed with USCIS. New 8 CFR 103.7(b)(1)(i)(P). All filings of 
Form I-193 are processed by CBP and thus DHS will also not adjust the 
current $585 fee. New 8 CFR 103.7(b)(1)(i)(Q).

C. Fee Waivers and Exemptions

    DHS proposed no changes to the USCIS fee waiver policies in the 
NPRM. DHS noted, however, that the lost revenue from fee waivers and 
exemptions has increased markedly, from $191 million in the FY 2010/
2011 fee review to $613 million in the FY 2016/2017 Fee Review. DHS 
also explained the fee waiver process. See 81 FR 26922. DHS received a 
number of comments on its fee waiver and exemption policies. Some 
commenters on this subject requested that DHS permit fee waivers for 
additional immigration benefit requests. Others asked that DHS make 
more requests exempt from fee requirements.
    Applicants, petitioners, and requestors who pay a fee cover the 
cost of processing requests that are fee-waived or fee-exempt. Id.\58\ 
While a number of commenters suggested that USCIS expand the range of 
applications and petitions for which USCIS would consider a fee waiver, 
none provided a compelling argument for why a particular form that is 
not eligible for fee waivers should be made eligible in this final 
rule.
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    \58\ USCIS compares fee-paying receipts to the total number of 
receipts to determine a fee-paying percentage for each immigration 
benefit request. See page 16 of the supporting documentation in the 
rulemaking docket for an explanation of fee-paying volume and 
methodology.
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    For example, one commenter recommended that USCIS make fee waivers 
available for all applications. DHS recognizes that some applicants 
cannot pay filing fees, and has established a fee waiver process for 
certain forms and benefit types. USCIS carefully considers the merits 
of each fee waiver request before making a decision. Expansion of fee 
waiver policy to include all immigration benefit request fees would 
significantly increase administrative and adjudicative costs. Although 
DHS recognizes that filing fees impose a heavy burden on people of 
limited financial means, the costs of allowing fee waivers across the 
board would be borne by all other fee payers, because the cost of 
providing services with a discount or without a fee must be transferred 
to those who pay a full fee. Thus, USCIS takes a relatively careful 
position with respect to transferring costs from one applicant to 
another through the expansion of fee waiver eligibility.
    DHS notes that, in response to stakeholder concerns about the fee 
waiver process and rejections of fee waiver requests, USCIS recently 
published a new Request for Fee Waiver, Form I-912. It revised the form 
to clarify the instructions, make the form less complex, and reduce the 
number of incomplete fee waiver requests that are ultimately rejected. 
In addition, because many applicants have had difficulty providing all 
the requested information in the spaces provided on the previous form, 
USCIS also included text boxes that provide space for explanations. 
Those boxes reduce the need for attachments, and make the form more 
user-friendly.
    As for fee exemptions, DHS already exempts from fees those requests 
with compelling circumstances. These exemptions include benefit 
requests for a range of humanitarian and protective services, such as 
refugee and asylum processing, assisting victims of crime and human 
trafficking, and other related services. USCIS also may allow fee 
exemptions based on economic necessity in the event of incidents such 
as an earthquake, hurricane, or other natural disasters affecting 
localized populations by using the authority of the Director of USCIS 
at 8 CFR 103.7(d). DHS proposed no new exemptions in the NPRM, and 
knows of no compelling reason for exempting a new group of applicants, 
petitioners, or requestors from a fee. Therefore, DHS has added no new 
exemptions in this final rule.

D. Naturalization

    In the NPRM, DHS proposed to increase the fee for the Application 
for Naturalization, Form N-400, from $595 to $640. Proposed 8 CFR 
103.7(b)(1)(i)(BBB); 81 FR 26939. DHS proposed to hold the increase for 
the Form N-400 to the reduced fee increase (8 percent) \59\ to support 
naturalization. DHS also proposed an additional fee option for those 
non-military naturalization applicants with family incomes greater than 
150 percent and not more than 200 percent of the Federal Poverty 
Guidelines. Proposed 8 CFR 103.7(b)(1)(i)(BBB)(1); 81 FR 26939. 
Specifically, DHS proposed that such applicants would receive a 50 
percent discount, resulting in a fee of $320 for Form N-400. DHS 
proposed this reduced fee option to limit any potential economic 
disincentives that some eligible naturalization applicants may face 
when deciding whether or not to seek U.S. citizenship. The lower fee is 
intended to help ensure that those who have become eligible for 
naturalization are not prohibited from naturalizing due to their 
economic means.
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    \59\ The proposed increase was a 7.5 percent due to rounding.
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    Several commenters stated that the price of this benefit is already 
too high. Another commenter stated that the fee for Form N-400 should 
be increased based on the value of U.S. citizenship, not just the costs 
associated with adjudicating the form. And, while generally opposed to 
the fee increase, several commenters wrote in support of USCIS' efforts 
to alleviate some of the associated burdens by establishing a three-
level fee for Form N-400, including a fee of $320 for certain low-
income applicants who do not qualify for the existing fee waiver. The 
commenters stated that by doing so, USCIS will expand the pool of 
potential applicants.
    DHS agrees with commenters that citizenship is a benefit that 
deserves special consideration and promotion. Therefore, DHS did not 
propose a fee

[[Page 73308]]

that reflected all of the costs associated with the relative complexity 
of the adjudication. The Application for Naturalization fee has not 
changed in nearly a decade. Additionally, the fee established in this 
rule for Form N-400 is less than it would be if the 2007 fee were 
simply adjusted for inflation. According to the Bureau of Labor 
Statistics, the semiannual average inflation from July 2007 to July 
2016 was 16.1 percent.\60\ If adjusted only for inflation, the current 
$595 fee would be $690, which is $50 more than the $640 fee set by this 
rule. DHS has not previously adjusted Form N-400 by CPI-U inflation, 
but provides this as a point of comparison.
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    \60\ The semiannual average consumer price index for all urban 
consumers (CPI-U) was 205.7 in July 2007 and 238.8 in July 2016. The 
change in the Index over 9 years was 33.1 or 16.1 percent. See U.S. 
Department of Labor, Bureau of Labor Statistics, All Urban Consumers 
(CPI-U) Semiannual Average tables, available at http://www.bls.gov/cpi/cpi_dr.htm.
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    As for the comment requesting that the Form N-400 fee be based on 
the value of U.S. citizenship, doing so would require quantifying that 
value, which assuming it is appropriate or even possible to do 
precisely, would be beyond the scope established by the proposed rule. 
The USCIS ABC model is based on estimated operational costs, and DHS 
has set the fee at a level that adheres to the fee review methodology, 
which includes full cost recovery. See new 8 CFR 103.7(b)(1)(i)(BBB). 
DHS therefore sets the fee for Form N-400 at $640, as proposed.
E. Improve Service and Reduce Inefficiencies
    Many of the comments received that opposed fee increases cited 
delays in processing times and dissatisfaction with customer service. 
Some of these commenters stated that they would embrace the fee 
increases if they resulted in faster processing and improved customer 
service. A few commenters asserted that if DHS implements any type of 
USCIS fee increase, then USCIS should guarantee that it will reduce 
benefit request processing times. At least one commenter recommended 
increasing the fees further so there would be no excuse for delays in 
processing. Other commenters wrote about expanding electronic filing 
and receipting to reduce mail handling and shipping of paper. USCIS 
acknowledges that since it last adjusted fees in FY 2010, the agency 
has experienced elevated processing times compared to the goals 
established in the 2007 fee rule. See 72 FR 29858-29859. These 
processing delays have contributed to case processing backlogs. This 
can partially be attributed to having removed the surcharge previously 
applied to the IEFA fee schedule to recover costs related to RAIO, the 
SAVE program, and the Office of Citizenship. This was done in 
anticipation of congressional appropriations for these programs, 
consistent with the President's budget requests. As the anticipated 
budget request was not granted, since FY 2012 USCIS has used other fee 
revenue to support these programs. Under this final rule, DHS will 
adjust USCIS fees by a total weighted average increase of 21 percent; 
the total 21 percent weighted average increase will be allocated as 
follows:
     To reinstate a surcharge in the fee schedule to sustain 
the current operating levels of RAIO, the SAVE program, and the Office 
of Citizenship (approximately 8 percent);
     To account for reduced revenue stemming from an increase 
in fee waivers granted since FY 2010 (approximately 9 percent); and
     To recover the costs needed to sustain current operating 
levels while allowing for limited, strategic investments necessary to 
ensure the agency's information technology infrastructure is 
strengthened to protect against potential cyber intrusions, and to 
build the necessary disaster recovery and back-up capabilities required 
to effectively deliver the USCIS mission (approximately 4 percent).
    Through this final rule, USCIS expects to collect sufficient fee 
revenue to sustain current operating levels of RAIO, the SAVE program, 
and the Office of Citizenship. This change will allow USCIS to 
discontinue diverting other fee revenue to fund these programs, thereby 
increasing the resources available to fund additional personnel \61\ 
needed to improve case processing, reduce backlogs, and move toward 
processing times that are in line with the commitments in the FY 2007 
fee rule.
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    \61\ For additional information on staffing, see second bullet 
on pg. 13, Alignment of USCIS Staffing Allocation Model with the Fee 
Review on pg. 26, and Appendix XIII Table 12: IEFA Positions by 
Office in the supporting documentation.
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    While the agency remains committed to achieving the processing goal 
commitments in the 2007 fee rule, it acknowledges that these goals 
remain ambitious. By its very nature, the fee review cycle uses 
historical staffing and workload information to establish future needs, 
and as a result, cannot identify the exact resources necessary to 
guarantee future processing goals. In addition, superseding priorities 
may arise, which could not have been known at the time fee cycle 
calculations were made, that may impact USCIS' ability to meet customer 
expectations. USCIS will need to continue addressing emergent issues 
and their associated costs, which may impact case processing efficiency 
and backlogs. Nevertheless, the agency holds the 2007 processing goals 
to be among its highest priorities and recommits to achieving them as 
quickly as possible.
    In addition, USCIS is committed to providing stakeholders and 
customers with the information they need, when they need it. To that 
end, USCIS is transforming how it calculates and posts processing time 
information to improve the timeliness of such postings, but more 
importantly, to achieve greater transparency of USCIS case processing. 
For instance, to make current published processing time information 
more transparent and less complex for customers to interpret, USCIS is 
evaluating the feasibility of calculating processing times using data 
generated directly from case management systems, rather than with self-
reported performance data provided by Service Centers and Field 
Offices. Preliminary findings suggest that USCIS will be able to 
publish processing times sooner and with greater transparency by 
showing different processing times for each office and form type. USCIS 
is also considering publishing processing times using a range rather 
than using one number or date. This approach would show that, for 
example, half of cases are decided in between X and Y number of months.
    USCIS also expects to improve the customer experience as it 
continues to transition to online filing and electronic processing of 
immigration applications and petitions. With the new person-centric 
electronic case processing environment, USCIS will possess the data 
needed to provide near-real-time processing updates to the customer 
that will identify the case status and time period that has elapsed 
between actions for each individual case. This will allow greater 
transparency to the public on how long it will take to process each 
case as it moves from stage to stage (e.g., from biometrics collection, 
to interview, to decision).
    DHS appreciates the comments requesting expansions of electronic 
filing, and USCIS is actively planning the expansion of its online case 
management system for the submission and adjudication of immigration 
benefits. As of the end of FY 2016, approximately 17 percent of the 
agency's intake was processed through

[[Page 73309]]

online filing and we are striving to increase that level.
    In sum, DHS appreciates the commenters' concerns for timely 
service. USCIS continually strives to meet timely adjudication goals 
while balancing security, eligibility analysis, and integrity in the 
immigration system. Fees have not been adjusted since 2010 and that fee 
rule did not include the surcharge for RAIO, the SAVE program, and the 
Office of Citizenship, which has resulted in the reprioritization of 
resources to cover those program costs. This fee rule is intended to 
address such shortfalls and provide resources necessary to ensure 
adequate service. USCIS would be unable to adequately perform its 
mission if DHS allowed fee levels to remain insufficient while USCIS 
continued to develop its search for additional efficiencies.

F. Premium Processing

    Premium processing is a program by which filers may request 15-
calendar-day processing of certain employment-based immigration benefit 
requests if they pay an extra amount. 8 CFR 103.7(b)(1)(i)(RR) and (e); 
proposed 8 CFR 103.7(b)(1)(i)(SS); 81 FR 26939. In 2000, Congress set 
the premium processing fee at $1,000 and authorized USCIS to adjust the 
fee for inflation, as determined by the Consumer Price Index (CPI). 
Section 286(u) of the INA, 8 U.S.C. 1356(u). USCIS adjusted the premium 
processing fee to $1,225 by using the CPI in the 2010 final rule.\62\ 
See 75 FR 58979. DHS proposed no change to premium processing fees or 
regulations because forecasted premium processing revenue is sufficient 
to cover the projected costs of providing the premium service and other 
permissible infrastructure investments.
---------------------------------------------------------------------------

    \62\ Premium processing fees are increased using the CPI through 
statutory authority. See INA sec. 286(u), 8 U.S.C. 1356(u).
---------------------------------------------------------------------------

    Several commenters wrote to request that USCIS expand premium 
processing to other forms, including family-based immigration benefit 
requests, naturalization, relief for victims of crimes who assist law 
enforcement, and forms related to the EB-5 Immigrant Investor Program. 
Some commenters stated that using premium processing revenue may 
alleviate backlogs. Other commenters stated that premium processing is 
essentially mandatory to ensure the timely and efficient processing of 
their employment-based petitions.
    Assuming DHS has the general authority to offer expedited 
processing fees to additional forms, the timing requirements of many 
adjudications involve considerations that are out of USCIS' control. 
For example, background checks, the timing of which are not controlled 
by USCIS, are required for: The Application for Temporary Protected 
Status, Form I-821; the Application for Naturalization, Form N-400; the 
Application for Provisional Unlawful Presence Waiver, Form I-601A; and 
the Application to Register Permanent Residence or Adjust Status, Form 
I-485. These and many other forms are not suited for expedited 
processing. USCIS already seeks processing efficiencies where available 
and shifts workload to balance volume surges, seasonal demands, and 
competing priorities.
    In addition, where expedited processing may be possible, it would 
be extraordinarily time-intensive to determine the appropriate fee 
amount, target adjudication timeframe, and staffing levels needed to 
implement a new expedited processing program. Expanding the premium 
processing program would require USCIS to estimate the costs of a 
service that does not currently exist with sufficient confidence that 
it can deliver the service promised and not impair service for other 
immigration benefit requests. Nevertheless, USCIS will continue 
considering additional premium processing services and its ability to 
improve services without creating new challenges. DHS made no changes 
in this final rule as a result of these comments.

G. Immigrant Investors

    In the NPRM, DHS proposed a number of changes to fees related to 
the Employment-Based Immigrant Visa, Fifth Preference (EB-5) 
``Immigrant Investor'' Program.\63\ Specifically, DHS proposed to 
increase the fee for the Application for Regional Center Under the 
Immigrant Investor Program, Form I-924, from $6,230 to $17,795. See 
proposed 8 CFR 103.7(b)(1)(i)(WW); 81 FR 26939. DHS proposed to 
establish a new fee for the Annual Certification of Regional Center, 
Form I-924A, at $3,035. See proposed 8 CFR 103.7(b)(1)(i)(XX); 81 FR 
26939. DHS proposed to increase the fee for the Immigrant Petition by 
Alien Entrepreneur, Form I-526, from $1,500 to $3,675. See proposed 8 
CFR 103.7(b)(1)(i)(W); 81 FR 26938. Finally, DHS proposed to hold the 
fee for the Petition by Entrepreneur to Remove Conditions, Form I-829, 
at $3,750. See proposed 8 CFR 103.7(b)(1)(i)(PP); 81 FR 26939. With the 
exception of the proposed fee for Form I-829, each proposed EB-5 fee 
increase was the result of application of the standard USCIS fee 
methodology to the applicable benefit request.
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    \63\ The EB-5 program was created by Congress in 1990 to 
stimulate the U.S. economy through job creation and capital 
investment by foreign investors. The EB-5 ``regional center 
program'' was later added in 1992 by the Departments of Commerce, 
Justice, and State, the Judiciary, and Related Agencies 
Appropriations Act, 1993. Pub. L. 102-395, sec. 610, 106 Stat 1828 
(Oct. 6, 1992). The EB-5 immigrant classification allows qualifying 
individuals, and any accompanying or following to join spouses and 
children, to obtain lawful permanent resident (LPR) status if the 
qualifying individuals have invested, or are actively in the process 
of investing, $1 million in a new commercial enterprise. See INA 
sec. 203(b)(5)(A) and (C), 8 U.S.C. 1153(b)(5)(A) and (C). To 
qualify, the individual's investment must benefit the U.S. economy 
and create full-time jobs for 10 or more qualifying employees. INA 
sec. 203(b)(5)(A)(ii), 8 U.S.C. 1153(B)(5)(A)(ii). If the investment 
is in a Targeted Employment Area (TEA) (i.e., a rural area or an 
area that has unemployment of at least 150% of the national 
average), the required capital investment amount is $500,000 rather 
than $1 million. INA sec. 203(b)(5)(C)(ii), 8 U.S.C. 
1153(b)(5)(C)(ii); 8 CFR 204.6(f)(2). Entrepreneurs may meet the job 
creation requirements through the creation of indirect jobs by 
making qualifying investments within a new commercial enterprise 
associated with a regional center approved by USCIS for 
participation in the regional center program. INA sec. 203(b)(5), 8 
U.S.C. 1153(b)(5); 8 CFR 204.6(e) and (m)(7). For more information 
on the EB-5 program, see https://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/about-eb-5-visa.
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    Several commenters objected to the proposed increases, noting that 
these are some of the highest proposed fee increases, while the related 
benefit requests have some of the longest processing times. Another 
commenter wrote to applaud the increase to EB-5 fees in general, but 
requested that USCIS conduct site visits and evaluate whether regional 
centers are misrepresenting themselves to investors.
    As an initial matter, and as noted previously, DHS is authorized to 
set fees at a level that ensures recovery of the full costs of 
providing immigration adjudication and naturalization services. Because 
USCIS relies almost entirely on fee revenue, in the absence of a fee 
schedule that ensures full cost recovery, USCIS would be unable to 
sustain an adequate level of service, let alone invest in program 
improvements. Full cost recovery means not only that fee-paying 
applicants and petitioners must pay their proportionate share of costs, 
but also that at least some fee-paying applicants and petitioners must 
pay a share of the immigration adjudication and naturalization services 
that DHS provides on a fee-exempt, fee-reduced, or fee-waived basis. 
DHS is therefore mindful to adhere to the standard USCIS fee 
methodology as often as possible, and to avoid overuse

[[Page 73310]]

of DHS's discretion to eliminate or reduce fees for special groups of 
beneficiaries.
    The proposed fees for three of the four EB-5 Program forms resulted 
from application of the standard USCIS fee methodology,\64\ because DHS 
did not find a compelling reason to shift the burden of adjudicating 
these forms onto other applicants. In addition, the relatively high 
fees for these requests result in part from the high costs associated 
with adjudicating them. For instance, USCIS has recently implemented 
several changes to refine and improve the delivery, security and 
integrity of the EB-5 Program. USCIS established the Immigrant Investor 
Program Office (IPO) in Washington, DC in 2012. Since that time, IPO 
has regularly added staff positions to focus both on managing the 
program and ensuring identification of fraud, national security, or 
public safety concerns within the program. In addition, USCIS plans to 
conduct increased site visits to regional centers and associated 
commercial enterprises to verify information provided in regional 
center applications and investor petitions and to clarify its EB-5 
regulations. Currently, USCIS is in the process of hiring and training 
additional adjudicators, economists, and support staff needed to 
adjudicate the benefit requests associated with the EB-5 program. Part 
of the increase in fees for EB-5-related adjudications will bolster the 
fraud detection and national security capabilities of USCIS to 
investigate fraud and abuse at all levels of the EB-5 process, 
including investigating projects that receive funds from EB-5 investors 
and auditing regional center annual reports to enhance compliance with 
the program. See 81 FR 26918. Each of these factors contributed to the 
proposed EB-5 Program fees.
---------------------------------------------------------------------------

    \64\ The proposed fee for the Form I-829 was above the model 
output, as described in the proposed rule.
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    In the immediately succeeding section, as well as in the Paperwork 
Reduction Act section of this preamble, DHS responds to additional 
comments on the proposed EB-5 fees.
1. Application for Regional Center Under the Immigrant Investor 
Program, Form I-924
    In the NPRM, DHS proposed to increase the fee for the Application 
for Regional Center Under the Immigrant Investor Program, Form I-924, 
from $6,230 to $17,795. See proposed 8 CFR 103.7(b)(1)(i)(WW); 81 FR 
26939. The proposed fee increase was the result of application of the 
standard USCIS fee methodology to the benefit request.
    At least one commenter wrote to oppose the proposed Form I-924 fee 
increase due to the possible impact on EB-5 regional centers. The 
commenter recommended a possible reduced fee for centers in existence 
for fewer than 5 years. The same commenter stated dissatisfaction with 
the level of customer service that USCIS has provided and suggested 
that USCIS create an electronic platform for EB-5 regional centers to 
monitor their applications and cases. Other commenters stated that the 
proposed fee increase were unreasonable and inflated, especially in 
light of long processing delays. At least one commenter stated that 
regional centers in rural and high-unemployment areas are less capable 
of withstanding long processing delays. The same commenter stated that 
the proposed 286 percent fee increase for the Form I-924 should be 
accompanied by an assurance that processing times would be cut by 75 
percent. The commenter stated that an alternative to processing time 
reductions would be to create a process in which regional centers would 
be automatically approved if USCIS does not provide a notice of action 
within 4 months, or if USCIS does not summarily reject a petition for 
which there have been prior approvals on the same project. Another 
commenter stated that DHS could adopt a tiered fee structure for Form 
I-924 based on whether the associated investment project was an actual 
or exemplar project. At least one commenter mentioned the potential for 
legislation to alter the regional center requirements.
    USCIS understands the desire of EB-5 regional centers to receive 
prompt and courteous service, and the agency strives to provide the 
best level of service possible. As the program has grown and applicants 
and projects have become more advanced, the current fee level has 
proven to be inadequate to ensure that USCIS has the resources it 
needs. The proposed fee increase was determined using USCIS's standard 
fee-setting methodology, based on the number of hours required to 
adjudicate Form I-924. These adjudications require economists and 
adjudications officers to thoroughly review extensive business 
documents, economic impact analyses, and other project-related 
documents. The proposed fee increase was, in part, calculated to allow 
USCIS to hire additional staff to process Forms I-924 and provide 
better and more thorough service.
    Currently, USCIS does not have the data to quantify alternative 
fees for regional centers in existence for fewer than 5 years. In 
addition, USCIS does not track Form I-924 completion rates based on 
whether the project involves a rural or urban area, an area of high or 
low employment, or an actual or exemplar project. USCIS also cannot 
commit to across-the-board processing time reductions as adjudications 
involve case-by-case review of complex applications and related 
supplementary information, nor can it implement a process that 
automatically approves a regional center without a complete 
adjudication. Moreover, USCIS does not prioritize Form I-924 workloads 
based on whether regional center projects involve a rural or urban 
area, or an area of high or low employment. DHS may consider exploring 
the feasibility of such a change in the future, but will not implement 
a change at this time.
    With respect to the commenter that identified the possibility of 
legislative changes, USCIS greatly appreciates the work of stakeholders 
towards reauthorization of the Regional Center Program and reform of 
the EB-5 program more generally. USCIS is cognizant of potential 
legislative changes to the EB-5 program and is also aware that such 
changes may require adjustments to USCIS adjudication processes. In the 
event that legislative changes are enacted, USCIS would assess any 
significant changes and reassess program requirements, adjudication 
process, and required fees. For now, however, and for the reasons 
stated previously, this rule sets the Form I-924 fee at $17,795, as 
proposed.
2. Immigrant Petition by Alien Entrepreneur, Form I-526
    In the NPRM, DHS proposed to increase the fee for the Immigrant 
Petition by Alien Entrepreneur, Form I-526, from $1,500 to $3,675. See 
proposed 8 CFR 103.7(b)(1)(i)(W); 81 FR 26938. The proposed fee 
increase was the result of application of the standard USCIS fee 
methodology to the benefit request.
    Some commenters wrote to request additional information on the 
proposed fee increase. Another commenter stated that a lack of 
processing efficiency can cause problems for Form I-526 applicants. 
Specifically, the commenter stated that EB-5 project sponsors sometimes 
agree to put an investor's money in escrow until the Form I-526 is 
approved. If the form is denied, project sponsors return those funds to 
the investor; if approved, the project sponsor uses those funds on the 
project. The commenter stated that such projects can languish when the 
investor's money is held in escrow for lengthy periods of

[[Page 73311]]

time. According to the commenter, although escrow arrangements provide 
substantial benefits to program integrity, they are becoming 
commercially untenable due to Form I-526 processing times. The 
commenter also asserted that projects themselves are also hurt by 
lengthy processing times, as projects may be well underway by the time 
USCIS denies the forms.
    USCIS has taken multiple steps towards reducing Form I-526 
processing times. As previously mentioned, USCIS is in the process of 
hiring and training additional adjudications officers, economists, and 
support staff for these form types. Additionally, USCIS is working to 
revise the EB-5 regulations and is preparing revisions to the EB-5 
Policy Manual. USCIS is also improving the forms and form instructions 
for the EB-5 program. The EB-5 program fee increases will further these 
agency efforts with the goal of improving operational efficiencies 
while enhancing predictability and transparency in the adjudication 
process. USCIS understands that long delays in Form I-526 adjudications 
negatively impact both immigrant investors and the projects awaiting 
the release of their investment funds from escrow. USCIS strives to 
process Form I-526 filings as soon as practicable. In addition, 
regarding the release of escrowed funds, USCIS permits EB-5 financing 
to replace interim financing where the financing to be replaced was 
contemplated as temporary financing that would be replaced.\65\ DHS 
made no changes to the proposed Form I-526 fee as a result of these 
comments, and is finalizing the fee at $3,675, as proposed.
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    \65\ See Policy Memorandum, EB-5 Adjudications Policy (May 30, 
2013) at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2013/May/EB-5%20Adjudications%20PM%20(Approved%20as%20final%205-30-13).pdf.
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3. Petition by Entrepreneur To Remove Conditions, Form I-829
    In the NPRM, DHS proposed to hold the fee for the Petition by 
Entrepreneur to Remove Conditions, Form I-829, at $3,750. See proposed 
8 CFR 103.7(b)(1)(i)(PP); 81 FR 26939. While the fee model calculated a 
fee of $2,353, DHS proposed to maintain the current fee for such 
petitions. See 81 FR 26918. Because of the recent and continued growth 
and maturation of the EB-5 Program, associated costs over the next few 
fiscal years are uncertain. Among other things, the final parameters of 
the program are still evolving, such as the number of USCIS employees 
and facilities necessary to carry out enhanced review of EB-5 filings, 
as well as site visits. This uncertainty makes it unclear whether EB-5 
related fees will fully fund EB-5 program activities. DHS therefore 
proposed to keep the Form I-829 at the current fee, above the full cost 
recovery calculation, to shield USCIS against potential, but likely 
rising costs.\66\
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    \66\ [thinsp]If DHS had decided to adjust the fee consistent 
with the adjustment that DHS made to most other fees, the proposed 
fee would have decreased to $3,280. The proposed fee would have been 
higher than the model output because of Cost Reallocation. Other 
fees would also have been adjusted accordingly.
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    At least one commenter indicated current USCIS processing times for 
Form I-829 extend beyond the 1-year automatic extension of the 
entrepreneur's conditional residence, imposing an additional burden on 
petitioners traveling outside of the United States. The commenter 
stated that delays in processing Form I-829 mean that investments must 
remain at risk for an extended period of time. The commenter added that 
USCIS could increase the efficiency of Form I-829 adjudications by 
consolidating the business-related portions of multiple Forms I-829 
associated with a single investment project into a single adjudication. 
Another commenter recommended that USCIS implement electronic filing of 
this and other forms related to the Immigrant Investor Program to 
increase efficiency.
    USCIS recognizes that lengthy Form I-829 processing times place a 
strain on EB-5 investors who are awaiting approval of their 
applications to adjust to LPR status. USCIS is working diligently to 
add staffing, and the agency plans to publish regulatory action, policy 
guidance, and revised forms with the goal of improving service delivery 
to applicants and improving the integrity of the EB-5 program. In part 
due to the tentative nature of these plans, DHS has no way to reliably 
quantify any potential cost savings that might be associated with these 
actions, and therefore could not propose to reduce the Form I-829 fee 
to account for such savings.
    DHS appreciates the suggestions for improving EB-5 processing 
times. DHS clarifies that USCIS already has processes in place to 
streamline adjudication of the business-related portions of multiple 
Forms I-829 associated with a single, new investment project. 
Specifically, when USCIS receives a regional center-associated Form I-
829 that involves a new commercial enterprise, USCIS reviews the first 
two petitions associated with that new commercial enterprise to 
determine if there are specific project-related issues that would apply 
to all petitioners associated with the new commercial enterprise. After 
completing that review, USCIS commences adjudication of all Forms I-829 
associated with that new commercial enterprise filed within a given 
period. Similarly, when USCIS receives a regional center-associated 
Form I-829 that involves a previously reviewed commercial enterprise, 
USCIS immediately assigns that petition for adjudication. In other 
words, USCIS currently adjudicates Form I-829 petitions in ``first in, 
first out'' order by new commercial enterprises. USCIS constantly 
searches for new ways to increase efficiencies in the adjudications 
process, and for that reason cannot commit to a uniform queuing 
practice in this rule, or reduce associated fees in anticipation of 
heretofore unrealized savings.
    USCIS does not have immediate plans to allow electronic filing for 
EB-5 requests, but appreciates commenters' desire to avoid voluminous 
paper filings. USCIS plans to allow electronic filing for EB-5 requests 
in the future. DHS made no changes to the proposed Form I-829 fee, or 
the policies regarding EB-5 adjudications, as a result of these 
comments. The final rule sets the Form I-829 fee at $3,750, as 
proposed.

H. Methods Used To Determine Fee Amounts

    As described previously and in the NPRM, the standard USCIS fee-
setting methodology is intended to ensure full cost recovery for USCIS 
immigration adjudication and naturalization services. DHS based the 
proposed USCIS fees on the estimated costs of providing immigration 
benefit adjudication and naturalization services. In addition, to the 
extent possible, and with limited exception, DHS based the proposed 
USCIS fees on the relative identifiable costs associated with providing 
each particular benefit or service. This fee methodology is consistent 
with government-wide fee-setting guidelines outlined by OMB Circular A-
25, 58 FR 38142 (July 15, 1993); \67\ the principles of the Chief 
Financial Officers Act of 1990, 31 U.S.C. 901-03; and the Federal 
Accounting Standards Advisory Board (FASAB) guidelines.\68\ Additional 
information about the fee methodology can be found in this preamble, 
the preamble for the

[[Page 73312]]

proposed rule, and the supporting documentation accompanying this 
rulemaking.\69\
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    \67\ Office of Management and Budget, Circular A-25, User 
Charges, available at http://www.whitehouse.gov/omb/circulars_a025/.
    \68\ Handbook, Version 14 (06/15), available at http://files.fasab.gov/pdffiles/handbook_sffas_4.pdf.
    \69\ The USCIS fee methodology is not intended to yield a profit 
for the agency nor the Federal Government. The sole purpose of USCIS 
IEFA fees is to achieve full cost recovery to allow the agency to 
provide an adequate level of service. USCIS filing fees are not 
designed to function as tariffs, to generate general revenue to 
support broader policy decisions, or to deter certain behavior. As 
previously stated in this final rule, filing fees are generally not 
intended to influence public policy in favor of or in opposition to 
immigration, support broader infrastructure, or cover costs beyond 
USCIS.
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    DHS received a number of comments regarding the methods that DHS 
uses to determine fee amounts. Commenters made statements about the 
need for full cost recovery without appropriations, the decision to 
exclude revenue from certain benefits in the proposed fee schedule, 
potential alternative fee methodologies, and the potential for cost 
reductions. DHS responds to these comments below.
1. Recovery of Full Cost Without Appropriations
    Some commenters suggested that USCIS seek appropriations to reduce 
immigration benefit request fees. Some commenters opposing the fee 
increase mentioned that immigrants in the United States pay Federal 
income taxes, Social Security taxes, and other fees and questioned 
whether those are being accounted for in USCIS fee calculations. 
Commenters stated that appropriations could help reduce processing 
times or fund programs that do not recover full cost on their own, such 
as RAIO, the SAVE program, and the Office of Citizenship.
    DHS acknowledges that immigrants pay both Social Security and 
various Federal taxes and fees, but the decision whether to fund USCIS 
services through tax revenues belongs to the U.S. Congress. And in 
recent years, such funding has been unavailable. As noted in the NPRM, 
USCIS is almost entirely funded by fees and must recover the full cost 
of its operations. See 81 FR 26905-26912. Fees collected from 
individuals and entities filing immigration benefit requests are 
deposited into the IEFA and used to fund the cost of immigration 
benefits and naturalization. Id. USCIS has not received any substantial 
appropriations since FY 2011. Similarly, USCIS received no FY 2016 
discretionary appropriations for the SAVE program or the Office of 
Citizenship. See DHS Appropriations Act 2016, Public Law 114-113, div. 
F. (Dec. 18, 2015) and 81 FR 26912. USCIS did not receive 
appropriations for refugee and asylum processing or the SAVE program 
after FY 2011. USCIS received $2.5 million for the immigrant 
integration grants program in FY 2013 (Pub. L. 113-6) and FY 2014 (Pub. 
L. 113-76), but the agency did not receive appropriations for that 
program in FY 2015 or FY 2016. The only USCIS appropriations for FY 
2016 provided funding for the E-Verify employment eligibility 
verification program. See Consolidated Appropriations Act, 2016, Public 
Law 114-113, div. F, tit. IV (Dec. 18, 2015) (DHS Appropriations Act 
2016). Other than as described, USCIS receives no appropriations to 
offset the cost of adjudicating immigration benefit requests. Id. As a 
consequence of this funding structure, taxpayers do not bear any costs 
related to the IEFA and bear only a nominal burden to fund USCIS. 
However, in the event appropriations are provided that will materially 
change IEFA fees, then DHS could pursue a rulemaking to adjust fees 
appropriately.
    Finally, one commenter questioned why SAVE fees charged to local, 
state, and Federal agencies do not recover the full cost of the SAVE 
program. USCIS collects SAVE fees from federal government agencies 
under the authority of the Economy Act, 31 U.S.C. 1535, and from state 
or local government agencies under the authority of the Inter-
Governmental Cooperation Act, 31 U.S.C. 6501. SAVE fees are included in 
Memoranda of Agreement (MOAs) with user agencies, which are updated 
based on the established periods of performance. As noted in the 
proposed rule, SAVE fees impact the IEFA fees established in this rule 
only as necessary to fund the SAVE costs that remain after taking into 
account revenue received under the MOAs. See 81 FR 26911. Fees charged 
to SAVE users do not cover the full cost of the SAVE program; rather, 
they only cover the estimated per-query cost of operating the 
verification system. IEFA funds are used to cover other costs of the 
program, especially personnel and overhead expenses. In short, then, 
the funding structure for SAVE is a dual one, in which some costs are 
covered by reimbursements, and other costs from IEFA funds. Congress 
has supported this funding arrangement in the past, noting ongoing 
budget constraints.\70\ As the commenter requests, USCIS and DHS 
regularly examine SAVE fees, and may modify them in the future.
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    \70\ H.R. Rep. No. 112-492 (May 23, 2012).
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2. Exclusion of Temporary or Uncertain Costs, Items, and Programs
    As noted in the NPRM, DHS excluded from the fee model the costs and 
revenue associated with certain programs that are time-limited or that 
may otherwise be narrowed or terminated, including because they are 
predicated on guidance and not preserved in regulations or statute.\71\ 
See 81 FR 26914-26915. This exclusion applies to the Application for 
TPS, Form I-821; Consideration of Deferred Action for Childhood 
Arrivals (DACA), Form I-821D; and Application for Suspension of 
Deportation or Special Rule Cancellation of Removal (Pursuant to 
Section 203 of Pub. L. 105-100) (Nicaraguan Adjustment and Central 
American Relief Act (NACARA)), Form I-881. As stated in the NPRM, DACA 
and TPS are both administrative exercises of discretion that may be 
granted on a case-by-case basis for particular periods of time. Both 
TPS and DACA, and the individual grants under each, are subject to 
intermittent renewal or extension at DHS's discretion. For NACARA, the 
eligible population will eventually be exhausted due to relevant 
eligibility requirements, including the date by which an applicant was 
required to have entered the United States. Given that these 
initiatives or programs are temporary by definition and at the 
discretion of DHS, USCIS excluded the associated cost and workload from 
the fee review and did not propose to allocate overhead and other fixed 
costs to these workload volumes. See 81 FR 26915.
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    \71\ As noted in the proposed rule, for the purposes of this 
rulemaking, DHS is including all requests funded from the IEFA in 
the term ``benefit request'' or ``immigration benefit request'' 
although the form or request may not be to request an immigration 
benefit. For example, DACA is solely an exercise of prosecutorial 
discretion by DHS and not an immigration benefit, and would fit 
under the definition of ``benefit request'' solely for purposes of 
this rule. For historic receipts and completion information, see 
USCIS immigration and citizenship data available at https://www.uscis.gov/tools/reports-studies/immigration-forms-data.
---------------------------------------------------------------------------

    Some commenters wrote to question the rationale for excluding DACA 
and TPS from the fee review. Several commenters stated that it is a 
financial burden to have to renew DACA every 2 years and to renew TPS 
every 18 months. Other commenters stated that, by their own estimates, 
the cost of administering DACA is less than the revenue that the 
program generates. Some commenters stated that fee increases to Forms 
I-765 and I-131 would deter DACA and TPS renewals and initial 
applications.
    Following consideration of the comments received, DHS retains its 
earlier position. The practice of excluding these initiatives or 
programs that are temporary by definition from the fee review mitigates 
an unnecessary revenue risk, by ensuring that USCIS

[[Page 73313]]

will have enough revenue to recover full cost regardless of DHS's 
discretionary decision to continue these initiatives. This allows DHS 
to maintain the integrity of its ABC model, ensure recovery of full 
costs, and mitigate revenue risk from unreliable sources.
    For these reasons, the cost of adjudicating requests associated 
with these policies was not considered, and this final rule excludes 
from the ABC model the costs and revenue associated with aforementioned 
policies, as proposed.
3. Setting Fees by Benefit Type
    A commenter stated that IEFA fees should be based on the specific 
immigration benefit sought by a filer, rather than the specific form 
type used. The commenter noted that USCIS tracks completion rate (i.e., 
adjudication time) by form number, and that the agency generally 
establishes a fee for the form type rather than the benefit being 
sought through the filing, even if the same form can be used to obtain 
different immigration benefits. For example, Form I-129 is used to 
request several types of nonimmigrant visa classifications, and a 
different fee could conceivably be calculated for each such 
classification.\72\
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    \72\ Currently, the fee is the same for each Form I-129 filed. 
This fee has historically been calculated based on the average level 
of complexity for the adjudication of the form.
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    USCIS already sets some of its fees based on benefit sought, rather 
than form type used. For example, USCIS sets different fees for Form I-
131 depending on the benefit sought, and the agency provides fee 
exemptions to certain filers of Form I-360. For other forms that have 
multiple uses, USCIS has not calculated the completion rate with enough 
precision to determine fees based on the benefits sought by filers of 
those forms. USCIS officers are required to manually report the time 
they spend on adjudicating forms; requiring reporting for sub-uses of 
those forms would divert time from processing requests. In addition, 
tracking whether filers are submitting the appropriate fees for the 
specific benefit sought would increase complexity for the agency and 
the public, potentially adding to processing delays. Nonetheless, DHS 
will continue considering this comment and may further refine its fee-
setting methodology in the future to determine if different fees for 
the same form can be justified, as well as accurately and efficiently 
determined, without causing confusion and delay for adjudicators and 
the public. DHS made no changes in this final rule as a result of this 
comment.
4. Income-Based Fee Structure
    Some commenters stated that DHS should generally base fees on the 
filer's income level or cost of living. Although USCIS is adopting a 
limited income-based fee structure in the naturalization context, 
adjusting all fees based on income or cost of living would be 
administratively complex and would require even higher costs to 
administer. A tiered fee system would require staff dedicated to income 
verification and necessitate significant information system changes to 
accommodate multiple fee scenarios for every form. The costs and 
administrative burden associated with implementing such a system would 
require additional overall fee revenue. As a result, DHS does not 
support making the entire fee schedule contingent on income or cost of 
living and DHS has made no changes in this final rule as a result of 
these comments.
5. Reduction in USCIS Costs
    A number of commenters recommended that USCIS reduce costs 
internally instead of raising fees to fully recover costs. For 
instance, some commenters stated that USCIS employees' salaries were 
too high. No commenters proposed a methodology that DHS could use to 
adjust the proposed fee schedule to account for unrealized cost 
reductions.
    USCIS is continually exploring opportunities to increase efficiency 
and reduce unnecessary costs without negatively affecting the delivery 
of benefits. Although USCIS will continue seeking out cost reductions, 
and may incorporate the results of such cost reductions in future fee 
reviews, DHS cannot set aside the need for full cost recovery 
indefinitely. Accordingly, DHS made no changes in this final rule as a 
result of these comments.

I. Dishonored Payments

    In the NPRM, in a set of proposals separate and distinct from the 
proposed fee schedule, DHS proposed to eliminate three rules requiring 
that cases be held while deficient payments are corrected. See proposed 
8 CFR 103.2(a)(7)(ii), 103.7(a)(2); 81 FR 26936; see also previous 8 
CFR 103.2(a)(7)(ii), (a)(2); 8 CFR 103.17(b)(1). Instead, DHS proposed 
that if a financial instrument used to pay a fee were returned as 
unpayable after one re-presentment, USCIS would reject the filing and 
impose a standard $30 charge. The purpose of the proposed change was to 
reduce the USCIS administrative costs for holding and tracking 
immigration benefit requests when the accompanying payment has already 
been rejected.
    DHS received several comments concerning these proposed changes. 
Some commenters suggested that USCIS maintain the current procedure or 
allow for several attempts to process a payment. These commenters noted 
that some payment problems are due to circumstances beyond the filer's 
control. These commenters stated that dishonored payments may result 
from errors at a USCIS Lockbox facility or a temporary disruption to a 
bank or Automated Clearing House (ACH) \73\ network. These commenters 
also stated that the rejection of a benefit request can have serious 
repercussions for the filer. Commenters asserted that a payment failure 
may be especially disruptive if, for example, an underlying labor 
certification application for Form I-140 is about to expire, a 
derivative applicant is about to age out of eligibility, the priority 
date for an application for adjustment of status is scheduled to 
retrogress, or an applicant's current status will expire imminently and 
the pendency and approval of the application would otherwise result in 
an extension of status. These commenters stated that time-sensitive 
immigration benefit requests could be delayed by months or years 
because of the proposed changes. One commenter also noted that the 
rejected filings may require over a month to be returned to filers.
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    \73\ The ACH Network is a nationwide electronic fund transfer 
system that provides for the inter-bank clearing of electronic 
credit and debit transactions and for the exchange of payment-
related information among participating financial institutions.
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    DHS agrees that ACH and bank network outages can sometimes result 
in a rejection or delay payments for a few days.\74\ In the past, USCIS 
has addressed the possibility of ACH and network outages by arranging 
for the Department of the Treasury (Treasury) to automatically re-
present a rejected payment twice to see if it clears on the second or 
third attempt before sending the filer the bill for the rejected 
payment.\75\ Re-depositing a rejected

[[Page 73314]]

check, known as ``re-presentment,'' was not required by the 
regulations, but USCIS arranged for Treasury to do this as a courtesy 
to filers.\76\
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    \74\ Treasury notifies USCIS of the reasons the payment was 
dishonored. Sometimes the reason is a lack of funds and sometimes 
the reason is a system outage. DHS will apply the dishonored payment 
provisions in this rule to all dishonored payments, regardless of 
the reason provided by Treasury. DHS believes that the safeguards 
described in the remainder of this section appropriately balance the 
interests of applicants and beneficiaries, on the one hand, and 
USCIS's interest in sound and efficient administration, on the 
other.
    \75\ USCIS implemented this internal policy in an effort to 
reduce the number of bad checks under the assumption that the payor 
may deposit funds during the intervening period and to preclude the 
need for USCIS to hold the bad check case while the payor has 14 
days to correct it.
    \76\ DHS notes that the proposed rule's preamble erroneously 
stated that ``DHS is proposing that USCIS will not begin processing 
the benefit request until the payment has cleared.'' See 81 FR 
26920. No provisions were proposed that would require USCIS to hold 
cases. As in the past, USCIS strives to intake and begin processing 
every benefit request as soon as practicable, without regard for 
whether or not the payment has cleared.
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    To address the concerns raised by commenters that a dishonored 
payment may be due to circumstances beyond the filer's control, DHS has 
decided to continue this practice, and to codify it (with slight 
revision) in this final rule. To make sure that a payment rejection is 
the result of insufficient funds and not due to USCIS error or network 
outages, USCIS (through Treasury) will re-submit rejected payment 
instruments to the appropriate financial institution one time. See new 
8 CFR 103.2(a)(7)(ii)(D).\77\ In effect, DHS will implement as a 
regulatory requirement the current practice under which USCIS re-
presents rejected payments, but this rule will only require USCIS to 
re-submit the payment once, not twice. USCIS estimates that this 
change, based on its experience with how many days are required for 
financial instruments to clear, will provide a total of approximately 
10 days before Treasury notifies USCIS that the payment (including re-
presentment) has failed. The change codifies in regulation a practice 
that reduces instances in which requests are erroneously rejected 
because a bank erroneously rejects the relevant financial instrument.
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    \77\ This policy will not apply to credit card payments.
---------------------------------------------------------------------------

    This final rule also corrects an oversight in the NPRM related to 
how USCIS treats benefit requests that have already been approved when 
the agency learns that the financial instrument used to pay the 
associated fee is unpayable. Under current 8 CFR 103.2(a)(7)(ii), if 
USCIS has approved a benefit request before the payment has cleared, 
and the filer, having received notice of failed payment, fails to pay 
the filing fee and associated service charge within 14 days, USCIS 
automatically revokes the approval, or reopens and denies the request, 
due to improper filing. See, e.g., previous 8 CFR 103.2(a)(1) (``Each 
benefit request or other document must be filed with fee(s) as required 
by regulation.''); 8 CFR 103.5(a)(5). As a result, a filer could not 
retain an approved benefit if the financial instrument used to pay the 
fee was subsequently returned as unpayable.\78\ Unfortunately, the 
proposed rule erroneously omitted this existing regulatory authority, 
see proposed 8 CFR 103.2(a)(7)(ii); 81 FR 26936, and also erroneously 
failed to include conforming updates to a related provision, see 
previous 8 CFR 205.1(a)(2) (providing for automatic revocation of 
certain petitions ``[i]f the filing fee and associated service charge 
are not paid within 14 days of the notification to the remitter that 
his or her check or other financial instrument used to pay the filing 
fee has been returned as not payable'').
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    \78\ In such a case, USCIS would either (1) revoke the approval 
automatically, (2) send a notice of intent to revoke the approval, 
or (3) reopen the approved case and deny it. See, e.g., 8 CFR 
103.5(a)(5) (motion by Service officer); 205.1(a)(2) (automatic 
revocation of immigrant petitions); 205.2 (revocation on notice); 
214.2(h)(11)(iii)(A)(5), (l)(9)(iii)(A)(5), (o)(8)(iii)(A)(5), 
(p)(10)(iii)(A)(5), (q)(9)(iii)(D) & (r)(18)(iii)(A)(5); 274a.14(b) 
(revocation for erroneous approval); see also, e.g., 6 U.S.C. 112; 
INA secs. 103, 204, 205, 214, 216, 216A, 244, 274A, and 286; 8 
U.S.C. 1103, 1154, 1155, 1184, 1186a, 1186b, 1254a, 1324a, and 1356.
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    As the NPRM and this rule make clear, however, the ability of USCIS 
to collect fees is a fundamental aspect of its ability to function. 
USCIS must be able to continue requiring proper fee payments as a 
condition of eligibility for immigration benefits. Individuals who file 
a benefit request with a fee payment that is dishonored should, 
therefore, have no expectation that they might benefit from early 
processing of their filing.
    Given that background, the only alternative to continuing to 
provide for revocation would be for USCIS to hold each benefit request 
until the financial instrument used to pay the fee has finally cleared 
or been rejected. In the interest of administrative efficiency and 
prompt processing of benefit requests, DHS has rejected that 
alternative. Therefore, DHS has provided in this final rule that if a 
remittance in payment of any fee submitted with a request is not 
honored by the bank or financial institution on which it is drawn, and 
the request was approved, USCIS will initiate revocation of the 
approval by issuing a notice of intent to revoke (NOIR). See new 8 CFR 
103.7(a)(2)(iii).\79\ The applicant, petitioner or requestor will be 
provided an opportunity to respond to the NOIR with evidence that the 
payment was honored and the revocation would be in error. To assuage 
concerns about procedural safeguards in such a situation, USCIS has 
decided to provide a notice in advance of the revocation in response to 
public comments that stated that a mistake by USCIS or a contractor 
could result in a dishonored payment. The applicant, petitioner or 
requestor may not, however, pay the rejected fee in response to the 
NOIR.
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    \79\ DHS considers an NOIR process to provide superior notice to 
requestors, as compared to the automatic revocation provision in 
previous 8 CFR 103.2(a)(7)(ii).
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    DHS emphasizes that this provision applies if any fee submitted 
with a benefit request is returned as dishonored. If a benefit request 
requires multiple fees, all fee instruments submitted with the request 
must be honored by the remitting bank; if any one fee instrument is 
dishonored after approval of the request, USCIS will revoke the 
approval after notice and will retain any filing fees properly paid. 
For instance, for the past five fiscal years, an average of 231 
petitions per year were submitted with a Request for Premium Processing 
Service, Form I-907, accompanied by a check that was dishonored by the 
remitting bank. If a benefit approved under these circumstances is not 
revoked, petitioners would have the perverse incentive to request 
premium processing services in order to receive a swift approval, 
knowing they would not suffer any consequences once the bank dishonors 
the payment submitted for premium processing.\80\ If the bank dishonors 
the Form I-907 payment after USCIS has approved the benefit request 
underlying the Form I-907, USCIS may revoke the approval after notice 
and, in that event, would retain the filing fees for the underlying 
benefit.\81\
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    \80\ Currently, in the case of a request for premium processing, 
if the Form I-907 check is returned for insufficient funds, USCIS 
will process the case as a regular submission and will not revoke 
the approval even if the Form I-907 check is never honored. Unless 
DHS can also revoke the underlying petition, some premium processing 
requesters will benefit from a swift adjudication for which they 
have not paid.
    \81\ Just as USCIS does not refund filing fees for a denied 
benefit, USCIS will not refund filing fees for a revoked benefit. 
After USCIS has fully adjudicated the request, it will have 
performed the same amount of work and expended the same resources 
for the adjudication that it would have expended if the case had 
been approved or denied.
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    In short, USCIS is fee funded and it must be able to adjudicate 
requests, including those which it has committed to approve in an 
expedited manner, without concerns that the fee payment will be 
declined. Accordingly, under this final rule, USCIS will intake the 
benefit request, deposit the fee, and begin processing the filing. If 
the payment is rejected, Treasury will re-present the payment 
instrument on USCIS's behalf. If the payment is rejected on the second 
try, Treasury will notify USCIS and USCIS, solely under

[[Page 73315]]

its own authority, will reject the filing for fee non-payment. If the 
filing has been approved, USCIS will initiate revocation of the 
approval. See id. The elimination of the 14-day waiting period will 
reduce the need for special handling of cases involving a dishonored 
payment. The requirement to re-present rejected payments will address 
commenters' concerns about rejections that occur through no fault of 
the filer. And the requirement to revoke an approved request if the 
payment has ultimately been rejected will help ensure the integrity of 
the benefits adjudication system.

J. Refunds

    In the NPRM, DHS proposed a minor change in the provision regarding 
USCIS fee refunds. See proposed 8 CFR 103.2(a)(1); 81 FR 26936. In 
general, and except for a premium processing fee under 8 CFR 
103.7(e)(2)(i), USCIS does not refund a fee regardless of the decision 
on the immigration benefit. However, USCIS will refund a fee if the 
agency determines that an administrative error occurred resulting in 
the incorrect collection of a fee. See 81 FR 26920-26921. DHS proposed 
to revise 8 CFR 103.2(a)(1) to provide that fees are ``generally'' not 
refunded. This would address concerns that the current regulatory text 
does not explicitly permit refunds at DHS discretion. DHS currently 
grants such refunds because as electronic filings and associated 
electronic payments have increased, there has been an increase in the 
number of erroneous payments where refunds are appropriate.
    Some commenters stated that they supported the regulatory change to 
clarify that USCIS does not generally allow refunds, but that a refund 
may occur as a result of administrative error or unnecessary payment. 
See 81 FR 26936. DHS has made no change based on these comments. DHS is 
finalizing this provision as proposed.

K. Visa Allocation

    Some commenters wrote that they generally opposed the fee increases 
in the proposed rule due to long waits for immigrant visas. Although 
these long waits are due to visa retrogression in oversubscribed 
categories, some attributed it to USCIS processing inefficiencies and 
questioned a fee hike in the face of such delays.\82\ Some commenters 
stated that USCIS should be able to move visa priority dates forward if 
fee increases are implemented.
---------------------------------------------------------------------------

    \82\ Visa retrogression occurs when more people apply for a visa 
in a particular category or country than there are visas available 
for that month https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/visa-retrogression.
---------------------------------------------------------------------------

    Significant improvements have been made in the visa coordination 
process between DHS and the Department of State (DOS). In September 
2015, DOS, in coordination with DHS, revised the procedures for 
determining immigrant visa availability and authorization for issuance 
for both employment-based and family-sponsored applicants for 
adjustment of status in the United States. See Department of State Visa 
Bulletin for October 2015.\83\ These revisions were made to better 
align with DOS' immigrant visa overseas consular processing application 
procedures and to enhance DOS' ability to better predict overall 
immigrant visa demand and determine cut-off dates for visa issuance 
published in the Visa Bulletin. Id.
---------------------------------------------------------------------------

    \83\ Available at https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2016/visa-bulletin-for-october-2015.html.
---------------------------------------------------------------------------

    DHS appreciates the concerns raised by individuals who may have 
been affected by long visa waits and visa retrogression. However, 
requests to make further revisions to the visa allocation process and 
priority dates must be done in coordination with DOS and are outside 
the scope of this rulemaking.

L. Credit Card Payments

    Finally, some commenters criticized USCIS for not allowing credit 
card payments for additional immigration benefit requests. USCIS 
accepts credit card payments made in person at all domestic field 
offices that accept payments.\84\ USCIS began allowing credit card 
payments for paper-filed Applications for Naturalization, Forms N-400, 
on September 19, 2015.\85\ Currently, this is the only immigration 
benefit that can be paid for with a credit card when filed by mail. 
USCIS also accepts credit card payments for immigration benefit 
requests made through the electronic immigration system. DHS made no 
changes in this final rule as a result of these comments. Nonetheless, 
in the future, USCIS will allow credit cards payments for all 
immigration benefit request fees when they are filed at a Lockbox 
facility as soon as this capability can be made available.
---------------------------------------------------------------------------

    \84\ See U.S. Citizenship and Immigration Services, Paying 
Immigration Fees (7/7/2014), available at https://www.uscis.gov/forms/paying-immigration-fees.
    \85\ See USCIS to Welcome More Than 36,000 Citizens During 
Annual Constitution Day and Citizenship Day Celebrations (9/17/
2015), available at https://www.uscis.gov/news/news-releases/uscis-welcome-more-36000-citizens-during-annual-constitution-day-and-citizenship-day-celebrations.
---------------------------------------------------------------------------

V. Statutory and Regulatory Reviews

A. Regulatory Flexibility Act--Final Regulatory Flexibility Analysis

    In accordance with the Regulatory Flexibility Act (RFA), 5 U.S.C. 
601(6), DHS examined the impact of this rule on small entities. A small 
entity may be a small business (defined as any independently owned and 
operated business not dominant in its field that qualifies as a small 
business per the Small Business Act, 15 U.S.C. 632), a small not-for-
profit organization, or a small governmental jurisdiction (locality 
with fewer than 50,000 people). Below is a summary of the small entity 
analysis. A more detailed analysis is available in the rulemaking 
docket at http://www.regulations.gov.
    Individuals rather than entities submit the majority of immigration 
and naturalization benefit applications and petitions. Entities that 
will be affected by this rule are those that file and pay the fees for 
certain immigration benefit applications and petitions. There are four 
categories of benefits that DHS analyzed in the Initial Regulatory 
Flexibility Analysis (IRFA) for this rule: Petition for a Nonimmigrant 
Worker, Form I-129; Immigrant Petition for an Alien Worker, Form I-140; 
Application for Civil Surgeon Designation, Form I-910; and the 
Application for Regional Center Designation Under the Immigrant 
Investor Program, Form I-924.\86\ Additionally, DHS has analyzed as 
part of the following Final Regulatory Flexibility Analysis (FRFA) 
requests related to genealogy information, Forms G-1041 and G-1041A, 
and the Petition for Amerasian Widow(er) or Special Immigrant, Form I-
360, in response to public comment on the impact to small entities that 
file these forms.
---------------------------------------------------------------------------

    \86\ Also captured in the dataset for Form I-924 is the 
Supplement Form I-924A, which regional centers must file annually to 
certify their continued eligibility for regional center designation.
---------------------------------------------------------------------------

    Following the review of available data, DHS does not believe that 
the increase in fees in this final rule will have a significant 
economic impact on a substantial number of small entities that are 
filing Form I-129, Form I-140, or Form I-910. However, DHS does not 
have sufficient data on the revenue collected through administrative 
fees by regional centers to definitively determine the economic impact 
on small entities that may file Form I-924. DHS also does not have 
sufficient data on the requestors that file genealogy forms to 
determine whether such filings were made by entities or individuals,

[[Page 73316]]

and thus is unable to determine if the fee increase for genealogy 
searches is likely to have a significant economic impact on a 
substantial number of small entities. Finally, DHS has added in this 
FRFA an analysis of the effects on small entities from the fee increase 
for Form I-360 and does not believe that the increase in fees will have 
a significant economic impact on these small entities. DHS is 
publishing this FRFA to respond to public comments, and provide further 
information on the likely impact of this rule on small entities.
1. A Statement of the Need for, and Objectives of, the Rule
    DHS issues this final rule consistent with INA section 286(m),\87\ 
which authorizes DHS to charge fees for adjudication and naturalization 
services at a level to ``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,'' and the CFO 
Act,\88\ which requires each agency's CFO to review, on a biennial 
basis, the fees imposed by the agency for services it provides, and to 
recommend changes to the agency's fees. DHS is adjusting the fee 
schedule for DHS immigration and naturalization benefit applications 
after conducting a comprehensive fee review for the FY 2016/2017 
biennial period and determining that current fees do not recover the 
full costs of services provided. DHS has determined that adjusting the 
fee schedule is necessary to fully recover costs and maintain adequate 
service.
---------------------------------------------------------------------------

    \87\ See 8 U.S.C. 1356(m).
    \88\ See 31 U.S.C. 901-03.
---------------------------------------------------------------------------

2. A Statement of the Significant Issues Raised by the Public Comments 
in Response to the Initial Regulatory Flexibility Analysis, A Statement 
of the Assessment of the Agency of Such Issues, and A Statement of Any 
Changes Made in the Proposed Rule as a Result of Such Comments
    DHS published the NPRM along with the IRFA on May 4, 2016 (81 FR 
26903) with the comment period ending July 6, 2016. During the 60-day 
comment period, DHS received 475 comments from interested individuals 
and organizations. DHS received several comments that directly or 
indirectly referred to aspects of the small entity analysis or IRFA 
presented with the NPRM. The comments, however, did not result in any 
major revisions to the small entity analysis in this final rule that 
are relevant to the effects on small businesses, small organizations, 
and small governmental jurisdictions presented in this FRFA. DHS 
summarizes and responds to these comments in this Final Rule.
a. Comments on Form I-129
    One commenter wrote about the 42-percent increase ($135) of the fee 
for the Petition for a Nonimmigrant Worker, Form I-129. The commenter 
explained that such a significant increase in visa fees for H-2A 
category visas for temporary agricultural workers will negatively 
affect the ability of both large and small farmers to use those visas 
to ensure a sufficient and stable work force. Form I-129, which is used 
to petition for H-2A workers, is often used by a large and an 
increasing portion of small business employers according to this 
commenter. The commenter discussed the impact this 42-percent increase 
has on an employer hiring only one employee compared to an employer 
hiring 100 employees. This commenter was especially concerned with the 
impact of this rule on smaller farmers, many of whom petition for 1 to 
5 workers, but whose farming operations could not continue without 
these workers. This commenter also stated that the impact of the rule 
on small entities was not quantitatively considered and/or disclosed.
    Several other commenters wrote about the fee increase for Form I-
129 and its impact on small entities in terms of small traveling 
musicians that cross over the border, particularly those along the 
United States and Canadian border. The commenters stated that these 
musicians routinely perform in small venues or small festivals and it 
currently takes about 3 separate performances to recoup the expenses of 
the current fee for Form I-129. The commenters stated that this 
increase in fees presents considerable hardship for these small 
performers and also compromises the ability to organize small tours 
that would result in break-even revenues.
    Other commenters also wrote about the increase for Form I-129 and 
its impact on small religious orders and communities who petition for 
foreign-born religious workers. The commenters stated that this 
increase is particularly burdensome since extensions have to 
continually be filed for work authorizations as well. They noted that 
these added costs impact smaller parishes and lower-income 
neighborhoods disproportionately. In addition to the fee increases for 
Form I-129, these commenters also expressed similar concern for Forms 
I-360 and I-485.
    DHS respectfully disagrees with the commenter who stated that the 
impact of the rule on small entities was not quantitatively considered 
and/or disclosed. DHS used recent data to examine the direct impacts to 
small entities for Forms I-129, I-140, I-910, and I-924. DHS prepared 
an IRFA that complied with the Regulatory Flexibility Act (RFA) and 
that was published with the NPRM. DHS also published a more 
comprehensive small entity analysis of the potential impact of the Form 
I-129 fee increase on www.regulations.gov in the docket for this rule 
along with other supporting documentation. DHS has also added an 
analysis of Forms G-1041, G-1041A, and I-360 in this FRFA in response 
to public comments.
    In terms of the range for Form I-129, among the 284 small entities 
with reported revenue data identified in the small entity analysis, all 
experienced an economic impact of considerably less than 1.0 percent of 
revenue in the analysis, with the exception of two entities. Using the 
methodology described in the comprehensive small entity analysis, the 
greatest economic impact imposed by this fee change totaled 2.55 
percent. This small entity with the highest economic impact imposed by 
the fee increase is in the theater companies and dinner theaters 
industry, which submitted 18 of the total 482,190 Form I-129 petitions 
in the 12-month period analyzed. The small entity with the second 
highest economic impact (2.05 percent) imposed by the fee increase is 
in the custom computer programming services industry, which submitted 
50 of the total 482,190 Form I-129 petitions. DHS notes that out of the 
10 small entities that face the highest economic impact due to this fee 
increase, a majority are in industries that are not related to 
musicians, farmers, or religious organizations. Table 2 shows the 
industry in which these top 10 impacted small entities belong, as well 
as the number of petitions submitted by each entity.

[[Page 73317]]



    Table 2--Form I-129 NAICS Industry of the Small Entities With the
          Highest Economic Impact Imposed by the Fee Increase *
------------------------------------------------------------------------
                                                             Economic
                                                             impact on
                                             Number of       entity's
             NAICS Industry                  petitions        revenue
                                             submitted    imposed by fee
                                                             increase
                                                             (percent)
------------------------------------------------------------------------
Theater Companies and Dinner Theaters...              18            2.55
Custom Computer Programming Services....              50            2.05
All Other Business Support Services.....               2            0.90
Dance Companies.........................               4            0.90
Other Scientific and Technical                         7            0.53
 Consulting Services....................
Computer Systems Design Services........               2            0.46
All Other Business Support Services.....               1            0.45
Custom Computer Programming Services....               3            0.37
All Other Business Support Services.....               2            0.34
All Other Business Support Services.....               2            0.34
------------------------------------------------------------------------
Source: DHS, USCIS, Office of Performance and Quality.
* North American Industry Classification System (NAICS).

    DHS also analyzed the 284 small entities with reported revenue data 
in our sample of Form I-129 petitions to see how many small entities 
were specifically in NAICS codes related to musicians, farmers, or 
religious organizations. Of these small entities, a total of 26 small 
entities were found in one of these related NAICS, 3 of the small 
entities were in the agricultural industry; 8 small entities were in 
the performing arts, spectator sports, and related industries; and 15 
small entities were religious organizations. Looking only at this 
subset of 26 entities, only one small entity had an economic impact 
above 1 percent with one other small entity just under 1 percent, both 
of which were in the performing arts industries. The 24 other small 
entities in these categories had economic impacts that were well below 
1 percent. Twelve of these small entities had an economic impact 
between 0.34 percent and 0.10 percent, while the remaining 12 small 
entities had economic impacts below 0.10 percent. Therefore, while DHS 
sympathizes with small farmers, small traveling musicians, and small 
religious entities, the evidence suggests that the additional fee 
imposed by this rule does not represent a significant economic impact 
on most of these types of entities.
b. Comments on Forms I-360 and I-485
    DHS also received comments about the impact of this rule on small 
religious organizations who file on behalf of religious workers 
utilizing Forms I-485 and I-360. Form I-485, Application to Register 
Permanent Residence or Adjust Status, was not considered in this small 
entity analysis because it is submitted by individuals seeking to 
receive benefits, not entities. DHS selected forms that are filed by 
entities for the small entity analysis in the NPRM. DHS recognizes, 
however, that entities may also file the Petition for Amerasian, 
Widow(er), or Special Immigrant, Form I-360, on behalf of a religious 
worker and acknowledges it is appropriate to include Form I-360 in the 
small entity analysis for the final rule.
    The fee for Form I-360 will increase from $405 to $435, a $30 (7 
percent) increase. DHS was able to obtain internal data on petitioners 
who file Form I-360 for Special Immigrant Religious Workers provided by 
the Office of Performance and Quality for this final rule. There were a 
total of 4,399 religious foreign worker Form I-360 petitions submitted 
in FY 2015 by 1,890 unique entities. Of these 1,890 unique entities, 
approximately 96 percent were churches, mosques, synagogues, temples, 
or other places of worship. Due to the overwhelming number of entities 
that were places of worship and therefore, likely designated as non-
profit organizations, DHS assumed that all 1,890 entities are small.
    Of the unique entities, about 51 percent of entities had submitted 
just one petition in the FY 2015 (Table 3). Over 83 percent submitted 
only one or two petitions. At the other end of scale, only about half a 
percent of entities submitted more than 20 petitions. An average of 2.4 
petitions per entity was submitted in FY 2015. Based on a $30 increase 
in fees per petition for Form I-360, the average additional cost to 
these entities is $72.\89\
---------------------------------------------------------------------------

    \89\ Calculation: 2.4 average petitions per entity x $30 
increase in fees = $72 average additional cost to entities.

                                    Table 3--Form I-360 Petitions per Entity
----------------------------------------------------------------------------------------------------------------
                                                                                   Percentage of    Cumulative
                      Petitions per entity                           Entities          total        percentage
                                                                                     (percent)       (percent)
----------------------------------------------------------------------------------------------------------------
1...............................................................             959            50.7            50.7
2...............................................................             617            32.6            83.3
3...............................................................              91             4.8            88.2
4...............................................................              78             4.1            92.3
5...............................................................              21             1.1            93.4
6 to 10.........................................................              87             4.6            98.0
11 to 20........................................................              30             1.6            99.6
21 to 50........................................................               5             0.3            99.9

[[Page 73318]]

 
51+.............................................................               2             0.1           100.0
                                                                 -----------------------------------------------
    Total.......................................................           1,890           100.0
----------------------------------------------------------------------------------------------------------------
Source: DHS, USCIS, Office of Performance and Quality.

    DHS also analyzed the costs imposed by this rule on the petitioning 
entities relative to the costs of the typical employee's salary. 
Guidelines suggested by the Small Business Administration (SBA) Office 
of Advocacy indicate that the impact of a rule could be significant if 
the cost of the regulation exceeds 5 percent of the labor costs of the 
entities in the sector.\90\ According to the Bureau of Labor Statistics 
(BLS), the mean annual salary is $48,150 for clergy,\91\ $45,160 for 
directors of religious activities and education,\92\ and $35,160 for 
all other religious workers.\93\ Based on an average of 2.4 religious 
workers petitioned-for per entity, the additional average annual cost 
will be $72 per entity.\94\ Thus, the additional costs per entity 
imposed by this rule represent only 0.15 percent of the average salary 
for clergy, 0.16 percent of the average salary for directors of 
religious of activities and education, and 0.20 percent of the average 
salary for all other religious workers. Therefore, using average annual 
labor cost guidelines, the additional regulatory compliance costs 
imposed by this rule are not significant.
---------------------------------------------------------------------------

    \90\ Office of Advocacy, Small Business Administration, ``A 
Guide for Government Agencies, How to Comply with the Regulatory 
Flexibility Act'': https://www.sba.gov/sites/default/files/rfaguide_0512_0.pdf.
    \91\ Bureau of Labor Statistics, U.S. Department of Labor, 
``Occupational Employment Statistics, May 2015, ``Clergy'': http://www.bls.gov/oes/current/oes212011.htm.
    \92\ Bureau of Labor Statistics, U.S. Department of Labor, 
``Occupational Employment Statistics, May 2015, ``Directors of 
Religious Activities and Education'': http://www.bls.gov/oes/current/oes212021.htm.
    \93\ Bureau of Labor Statistics, U.S. Department of Labor, 
``Occupational Employment Statistics, May 2015, ``Religious Workers, 
All Other'': http://www.bls.gov/oes/current/oes212099.htm.
    \94\ Calculation: 2.4 average petitions per entity x $30 new 
petition fee = $72 additional total cost per entity.
---------------------------------------------------------------------------

c. Comments on Forms G-1041 and G-1041A
    Several commenters also expressed concern about the impact the 
proposed increase in fees related to genealogy searches would have on 
individual businesses. The commenters stated that such large increases 
in fees would be prohibitive to many individual genealogists that 
submit requests. Some commenters suggested that the fee increase should 
be phased-in over several years to help mitigate the impact of this 
total cost increase.
    DHS appreciates the comments on the impact this fee increase will 
have on the individual businesses who request information from the 
genealogy program. The fee for Genealogy Index Search Request, Form G-
1041, will increase from $20 to $65 (a 225 percent increase). The fee 
for Genealogy Index Search Request, Form G-1041, will increase from $20 
to $65 (a 225 percent increase). Currently there are two fees for the 
Genealogy Records Request, Form G-1041A; the appropriate fee depends on 
whether the filing requests copies from microfilm (currently $20) or 
copies from textual records (currently $35). The new fee for Form G-
1041A will increase to $65, regardless of the type of media involved. 
This represents a fee increase of 86 to 225 percent over current fee 
levels.
    Based on DHS records related to the genealogy program, an average 
of 4,022 Index Search requests and 2,166 Records requests were made 
annually over the 4 calendar year span from 2012 to 2015 (Table 4). 
However, DHS does not have sufficient data on these requests to 
determine whether they were submitted by entities or individuals. 
Additionally, DHS cannot break out how many Genealogy Records Requests 
are copies from microfilm or from textual records. The case management 
tracking system used by DHS for these genealogy requests does not allow 
for requestor data to be readily pulled, nor does it allow for a break 
out in the Form G-1041A requests by record type.

                                        Table 4--Genealogy Form Receipts
                                                 [Calendar Year]
----------------------------------------------------------------------------------------------------------------
            Form Type                  2012            2013            2014            2015           Average
----------------------------------------------------------------------------------------------------------------
Genealogy Index Search Request,             3361            3662            4167            4897            4022
 Form G-1041....................
Genealogy Records Request, Form             2066            2219            2036            2344            2166
 G-1041A........................
----------------------------------------------------------------------------------------------------------------
Source: DHS, USCIS, Immigration Records and Identity Services Directorate.

    DHS has previously determined that requests for historical records 
are usually made by individuals.\95\ If professional genealogists and 
researchers submitted such requests in the past, they did not identify 
themselves as commercial requesters and thus could not be segregated in 
the data. Genealogists typically advise clients on how to submit their 
own requests. For those that submit requests on behalf of clients, DHS 
does not know the extent to which they can pass along the fee increases 
to their individual clients. Therefore, DHS does not currently have 
sufficient data to definitively assess the impact on small entities for 
these requests.
---------------------------------------------------------------------------

    \95\ See ``Establishment of a Genealogy Program; Proposed 
Rule,'' 8 CFR 103, 299 (Apr. 20, 2006), available at https://www.regulations.gov/document?D=USCIS-2006-0013-0001.
---------------------------------------------------------------------------

    DHS has decided to recover the full cost of the genealogy program 
from the genealogy program fees. As previously stated in this final 
rule, reducing the filing fee for any one benefit request submitted to 
DHS simply transfers the additional cost to process this request to 
other immigration and naturalization filing fees. Furthermore, DHS is 
not able

[[Page 73319]]

to accommodate a phased-in approach of costs over several years due to 
the statutory guidelines on how DHS is able to increase its fees.
d. Comments on Form I-924A
    One commenter indicated that fees for the new Form I-924A would 
create particular burdens on regional centers with less than 30 
investors. The new fee for the annual filings of Supplement Form I-924A 
is $3,035.
    As discussed in the small entity analysis of this final rule, while 
DHS cannot definitively claim that there is no significant economic 
impact to these small entities based on existing information at the 
time of this final rule, DHS would assume existing regional centers 
that have revenues equal to or less than $303,500 per year \96\ (some 
of which DHS assumes would be derived from administrative fees charged 
to individual investors) could experience a significant economic impact 
if DHS assumes a fee increase that represents 1 percent of annual 
revenue is a ``significant'' economic burden under the RFA. DHS also 
assumes newly designated regional centers that have revenues equal to 
or less than $1,779,500 per year \97\ could also experience a 
significant impact.
---------------------------------------------------------------------------

    \96\ Calculation: 1 percent of $303,500 = $3,035 (the new 
proposed fee for Form I-924A).
    \97\ Calculation: 1 percent of $1,779,500 = $17,995 (the new 
proposed fee for Form I-924).
---------------------------------------------------------------------------

    Searching through several public Web sites, DHS gathers that 
administrative fees charged to investors could range between $30,000 
and $100,000 per investor.\98\ DHS was able to obtain some sample data 
on 440 regional centers operating 5,886 projects. These 5,886 projects 
had a total of 54,506 investors, averaging 124 investors per regional 
center.\99\ Assuming an average of 124 investors is a representative 
proxy for regional centers, and that $30,000 is the minimum 
administrative fee charged by regional centers, then such fees would 
represent approximately $3,720,000 in revenue. In that case, DHS 
expects that the proposed filing fee increase for Form I-924 and the 
creation of a new fee for Form I-924A would not cause a significant 
economic impact to these entities.
---------------------------------------------------------------------------

    \98\ Yen, Christine et al., ``A Report on Source of Funds: 
Perils of the Administrative Fee.'' EB5 Investors Magazine (Aug. 20, 
2015), available at: http://www.eb5investors.com/magazine/article/A-Report-on-Source-of-Funds; see also Green, Merritt. ``The Costs of 
an EB-5 Regional Center Project Investment.'' (June 27, 2014), 
available at: http://www.generalcounsellaw.com/the-cost-of-an-eb-5-regional-center-project-investment/.
    \99\ Department of Homeland Security, USCIS, Immigrant Investor 
Program Office.
---------------------------------------------------------------------------

    DHS does not currently have information on how many regional 
centers may have 30 or fewer investors. However, DHS expects that the 
fee for the annual filing of Form I-924A is greater than 1 percent of 
annual revenue for only those regional centers with 10 or fewer 
investors.\100\ Regional centers with 11 or more investors are not 
likely to experience a significant economic impact due to this rule. 
While DHS cannot definitively state the number of regional centers that 
have fewer than 10 investors, we do not believe it is a substantial 
number of regional centers.
---------------------------------------------------------------------------

    \100\ Assuming $30,000 administrative fee x 10 investors = 
$300,000 regional center revenue.
---------------------------------------------------------------------------

3. The Response of the Agency to Any Comments Filed by the Chief 
Counsel for Advocacy of the Small Business Administration in Response 
to the Proposed Rule, and a Detailed Statement of Any Change Made to 
the Proposed Rule in the Final Rule as a Result of the Comments
    No comments were filed by the Chief Counsel for Advocacy of SBA.
4. A Description of and an Estimate of the Number of Small Entities To 
Which the Rule Will Apply or an Explanation of Why No Such Estimate is 
Available
    Entities affected by this final rule are those that file and pay 
fees for certain immigration benefit applications and petitions on 
behalf of a foreign national. These applications include Petition for 
Nonimmigrant Worker, Form I-129; Immigrant Petition for Alien Worker, 
Form I-140; Civil Surgeon Designation, Form I-910; Application for 
Regional Center Designation Under the Immigrant Investor Program, Form 
I-924; and Petition for Amerasian, Widow(er), or Special Immigrant, 
Form I-360. Annual numeric estimates of small entities affected by this 
fee increase total (in parentheses): Form I-129 (70,211), Form I-140 
(17,812), Form I-910 (589), Form I-924 (412), and Form I-360 (1,890).
    This rule applies to small entities including businesses, not-for-
profit organizations, and governmental jurisdictions filing for the 
above benefits. Form I-129 and Form I-140 will see a number of industry 
clusters affected by this rule (see Appendix A of the Small Entity 
Analysis for a list of affected industry codes). Of the total 444 small 
entities in the sample for Form I-129, most entities were small 
businesses (401), with 41 small not-for-profit entities and only 2 
small governmental jurisdictions. Similarly, of the total 393 small 
entities in the sample for Form I-140, most entities were small 
businesses (364), with 26 small not-for-profit entities and 3 small 
governmental jurisdictions. The fee for the Application for Civil 
Surgeon Designation, Form I-910, will apply to physicians requesting 
such designation. There were 322 small entities in the sample for Form 
I-910, consisting of two small governmental jurisdictions and 320 small 
entities that were either small businesses or small not-for-profits. 
DHS was unable to further break down the composition of small entities 
between small businesses and small not-for-profits due to difficulties 
in determining the structure of these small entities. The Form I-924 
will apply to any entity requesting approval and designation as a 
regional center under the Immigrant Investor Program or filing an 
amendment to an approved regional center application. Also captured in 
the dataset for Form I-924 is the Supplement Form I-924A, which 
regional centers must file annually to certify their continued 
eligibility for regional center designation. The Form I-360 will apply 
to any entity petitioning on behalf of a religious worker.
    DHS does not have sufficient data on the requestors for the 
genealogy forms, Forms G-1041 and G-1041A, to determine if entities or 
individuals submitted these requests. DHS has previously determined 
that requests for historical records are usually made by 
individuals.\101\ If professional genealogists and researchers 
submitted such requests in the past, they did not identify themselves 
as commercial requesters and thus could not be segregated in the data. 
Genealogists typically advise clients on how to submit their own 
requests. For those that submit requests on behalf of clients, DHS does 
not know the extent to which they can pass along the fee increases to 
their individual clients. Therefore, DHS does not currently have 
sufficient data to definitively assess the estimate of small entities 
for these requests.
---------------------------------------------------------------------------

    \101\ See ``Establishment of a Genealogy Program; Proposed 
Rule,'' 8 CFR 103, 299 (Apr. 20, 2006), available at: https://www.regulations.gov/document?D=USCIS-2006-0013-0001.
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a. Petition for a Nonimmigrant Worker, Form I-129
    The fee for the Petition for a Nonimmigrant Worker, Form I-129, 
will increase from $325 to $460, a $135 (42 percent) increase. DHS used 
a 12-month period of data on filings of Form I-129 from September 1, 
2014 to August 31, 2015, to collect internal data for each filing 
organization including the name, Employer Identification Number, city, 
state, ZIP Code, and number/type of filings. Each entity may make 
multiple filings; for instance, there were 482,190 Form I-129 
petitions, but only 84,490

[[Page 73320]]

unique entities that filed those petitions. Since the filing statistics 
do not contain information such as the revenue of the business, DHS 
looked for this information by researching databases from third-party 
sources. DHS used the subscription-based online database from Hoover's, 
as well as three open-access databases from Manta, Cortera, and 
Guidestar, to help determine an organization's small entity status and 
apply SBA size standards.
    DHS devised a methodology to conduct the small entity analysis 
based on a representative sample of the affected population for each 
form. To achieve a 95 percent confidence level and a 5 percent 
confidence interval on a population of 84,490 unique entities for Form 
I-129, DHS used the standard statistical formula to determine a minimum 
sample size of 382 entities was necessary. Based on past experience, 
DHS expected to find about 40 to 50 percent of the filing organizations 
in the online subscription and public databases. Accordingly, DHS 
selected a sample size approximately 40 percent larger than the minimum 
necessary in order to allow for non-matches (filing organizations that 
could not be found in any of the four databases). Therefore, DHS 
conducted searches on 534 randomly selected entities from the 
population of 84,490 unique entities for Form I-129.
    The 534 searches for Form I-129 resulted in 444 small entities, 287 
of which were determined to be small entities based on their reported 
revenue or employee count and their NAICS code. Combining non-matches 
(130), matches missing data (27), and small entity matches (287), 
enables us to classify 444 of the 534 entities as small for Form I-129.
    With an aggregated total of 444 out of a sample size of 534 
entities searched, DHS inferred that a majority, or 83.1 percent, of 
the entities filing Form I-129 petitions during the period were small 
entities. Furthermore, 284 of the 534 entities searched were small 
entities with the sales revenue data needed to estimate the economic 
impact of the rule. Because these 284 small entities were a subset of 
the random sample of 534 searches, they were statistically significant 
in the context of this research. In order to calculate the economic 
impact of this rule, DHS estimated the total costs associated with the 
fee increase annually for each entity, divided by the annual sales 
revenue of that entity.\102\ Based on the fee increase of $135 for Form 
I-129, this will amount to an average impact of 0.08 percent on all 284 
small entities with reported revenue data.
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    \102\ Total Cost to Entity = (Number of Petitions x $135)/Entity 
Sales Revenue.
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    In terms of range, among the 284 small entities with reported 
revenue data, all experienced an economic impact of considerably less 
than 1.0 percent in the analysis, with the exception of two entities. 
Using the above methodology, the greatest economic impact imposed by 
this fee change totaled 2.55 percent and the smallest totaled 0.0001 
percent.
    The evidence suggests that the additional fee imposed by this rule 
does not represent a significant economic impact on these entities.
b. Immigrant Petition for an Alien Worker, Form I-140
    The fee for the Immigrant Petition for an Alien Worker, Form I-140, 
will increase from $580 to $700, a $120 (21 percent) increase. Using a 
12-month period of data on filings of Form I-140 petitions from 
September 1, 2014 to August 31, 2015, DHS collected internal data 
similar to that of Form I-129. There were 101,245 Form I-140 petitions, 
but only 23,284 unique entities that filed those petitions. Again, DHS 
used the third party sources of data mentioned previously to search for 
revenue and employee count information.
    DHS used the same methodology as with Form I-129 to conduct the 
small entity analysis based on a representative sample of the affected 
population. To achieve a 95 percent confidence level and a 5 percent 
confidence interval on a population of 23,284 unique entities for Form 
I-140, DHS used the standard statistical formula to determine that a 
minimum sample size of 378 entities was necessary. Again, based on past 
experience, DHS expected to find about 40 to 50 percent of the filing 
organizations in the online subscription and public databases. 
Accordingly, DHS oversampled in order to allow for non-matches (filing 
organizations that could not be found in any of the four databases).
    DHS conducted searches on 514 randomly selected entities from the 
population of 23,284 unique entities for Form I-140. The 514 searches 
resulted in 430 instances where the name of the filing organization was 
successfully matched in the databases and 84 instances where the name 
of the filing organization was not found in the databases. Based on 
previous experience conducting regulatory flexibility analyses, DHS 
assumes filing organizations not found in the online databases are 
likely to be small entities. In order not to underestimate the number 
of small entities affected by this rule, DHS makes the conservative 
assumption to consider all of the non-matched entities as small 
entities for the purpose of this analysis. Among the 430 matches for 
Form I-140, 290 were determined to be small entities based on their 
reported revenue or employee count and their NAICS code. Combining non-
matches (84), matches missing data (19), and small entity matches 
(290), enables us to classify 393 of 514 entities as small for Form I-
140.
    With an aggregated total of 393 out of a sample size of 514 
entities searched, DHS inferred that a majority, or 76.5 percent, of 
the entities filing Form I-140 petitions during the period were small 
entities. Furthermore, 287 of the 514 entities searched were small 
entities with the sales revenue data needed to estimate the economic 
impact of the rule. Because these 287 small entities were a subset of 
the random sample of 514 searches, they were statistically significant 
in the context of this research. Similar to the analysis involving Form 
I-129, DHS estimated the total costs associated with the Form I-140 fee 
increase annually for each entity, divided by the annual sales revenue 
of that entity in order to calculate the economic impact of this rule.
    Among the 287 small entities with reported revenue data, all 
experienced an economic impact considerably less than 1.0 percent in 
the analysis. Using the above methodology, the greatest economic impact 
imposed by this fee change totaled 0.68 percent and the smallest 
totaled 0.000002 percent. The average impact on all 287 small entities 
with revenue data was 0.04 percent. The evidence suggests that the 
additional fee imposed by this rule does not represent a significant 
economic impact on these entities.
    Additionally, DHS analyzed any cumulative impacts to small entities 
resulting from the fee increases to both Forms I-129 and I-140. DHS 
isolated those entities that overlapped in both samples of Forms I-129 
and I-140 by Employer Identification Number (EIN). Only three entities 
had EINs that overlapped in both samples. Of these three entities, two 
of them were small entities and one was not a small entity. Only one 
entity submitted multiple Form I-129 petitions, while all three 
entities submitted multiple Form I-140 petitions. Due to little overlap 
in entities in the samples and the relatively minor impacts on revenue 
of fee increases of Forms I-129 and I-140, DHS does not expect the 
combined impact of these two forms to be an economically significant 
burden on a substantial number of small entities.

[[Page 73321]]

c. Application for Civil Surgeon Designation, Form I-910
    The fee for the Application for Civil Surgeon Designation, Form I-
910, will increase from $615 to $785, a $170 (28 percent) increase. 
Using a 12-month period of August 1, 2014 to July 31, 2015, DHS 
collected internal data on applicants of this form. There were 719 Form 
I-910 applications, but only 602 unique entities that filed such 
applications. Again, DHS used third party sources of data mentioned 
previously to search for revenue and employee count information.
    Using the same methodology employed with Forms I-129 and I-140, DHS 
conducted the small entity analysis based on a representative sample, 
with a 95 percent confidence level and a 5 percent confidence interval, 
of the population of 602 unique entities for Form I-910. DHS determined 
that a minimum sample size of 235 entities was necessary. DHS 
oversampled and conducted searches on 329 randomly selected entities 
for Form I-910.
    The 329 searches for Form I-910 resulted in 252 instances in which 
the name of the filing organization was successfully matched in the 
databases and 77 instances in which the name of the filing organization 
was not found in the databases. DHS assumed again that filing 
organizations not found in the online databases are likely to be small 
entities, so DHS considered all of the non-matched entities as small 
entities for the purpose of this analysis. Among the 252 matches for 
Form I-910, 240 were determined to be small entities based on their 
reported revenue or employee count and their NAICS code. Combining non-
matches (77), matches missing data (5), and small entity matches (240), 
DHS classified 322 of 329 entities as small for Form I-910.
    With an aggregated total of 322 out of a sample size of 329 
entities searched, DHS inferred that a majority, or 97.9 percent, of 
the entities filing Form I-910 applications were small entities. 
Furthermore, 238 of the 329 entities searched were small entities with 
the sales revenue data needed in order to estimate the economic impact 
of the rule. Because these 238 small entities were a subset of the 
random sample of 329 searches, they were statistically significant in 
the context of this research.
    Similar to the analysis involving Forms I-129 and I-140, DHS 
estimated the total costs associated with the Form I-910 fee increase 
for each entity. Among the 238 small entities with reported revenue 
data, all experienced an economic impact considerably less than 1.0 
percent in the analysis. The greatest economic impact imposed by this 
fee change totaled 0.61 percent and the smallest totaled 0.00002 
percent. The average impact on all 238 small entities with revenue data 
was 0.09 percent. The evidence suggests that the additional fee imposed 
by this rule does not represent a significant economic impact on these 
entities.
d. Regional Center Designation Under the Immigrant Investor Program, 
Forms I-924 and I-924A
    Congress created the EB-5 Program in 1990 under section 203(b)(5) 
of the INA to stimulate the U.S. economy through job creation and 
capital investment by foreign investors. Foreign investors have the 
opportunity to obtain LPR status in the United States for themselves, 
their spouses, and their minor unmarried children through a certain 
level of capital investment and associated job creation or 
preservation. There are two distinct EB-5 pathways for a foreign 
investor to gain LPR status: The Basic Program and the Regional Center 
Program. Both options require a capital investment from the foreign 
investor in a new commercial enterprise located within the United 
States. The capital investment amount is generally set at $1,000,000, 
but may be reduced to $500,000 if the investment is made in a 
``Targeted Employment Area.''
    A regional center is an economic entity, public or private, that 
promotes economic growth, regional productivity, job creation, and 
increased domestic capital investment. Regional centers pool funds into 
development loans or equity for commercial and real estate development 
projects. As of July 15, 2016, there were 847 DHS-approved regional 
centers.\103\ Entities seeking designation as regional centers file 
Form I-924 along with supporting materials. Approved regional centers 
are currently required to file the Supplement to Form I-924, Form I-
924A, on an annual basis to demonstrate continued eligibility for 
regional center designation. DHS is proposing to change the name of the 
Form I-924A annual filing to ``Annual Certification of Regional 
Center.''
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    \103\ USCIS Immigrant Investor Regional Centers: http://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/immigrant-investor-regional-centers#table.
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    DHS is increasing the fee for the Application for Regional Center 
Designation Under the Immigrant Investor Program, Form I-924, from 
$6,230 to $17,795, an $11,565 (186 percent) increase. Additionally, DHS 
introduces a filing fee of $3,035 for Form I-924A. In establishing this 
fee, DHS is also clarifying the related regulations that provide for 
the annual regional center review related to Form I-924A. Currently, 
there is no procedure for regional centers seeking to withdraw their 
designation and discontinue their participation in the program. Formal 
termination is currently processed by DHS issuing a Notice of Intent to 
Terminate and a subsequent termination notice. The withdrawal procedure 
will allow a regional center to proactively request withdrawal without 
the need for the more formal notices sent out by DHS. This procedure 
will reduce administrative costs and time for the Department, while 
timely clarifying status to the requesting regional center. Over a 13-
month period of August 1, 2014 through August 31, 2015, DHS received a 
total of 412 Form I-924 applications.\104\ These applications include 
the request for newly designated regional centers, as well as requests 
for continued designation for existing regional centers.
---------------------------------------------------------------------------

    \104\ Supplemental Form I-924A (Supplement to Form I-924) is 
captured in this dataset.
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    DHS was not able to determine the numbers of regional centers that 
are considered small entities. Regional centers are difficult to assess 
because there is a lack of official data on employment, income, and 
industry classification for these entities. Regional centers also pose 
a challenge for analysis as their structure is often complex and can 
involve many related business and financial activities not directly 
involved with EB-5 activities. Regional centers can be made up of 
several layers of business and financial activities that focus on 
matching foreign investor funds to development projects to capture 
above market return differentials. While DHS attempted to treat the 
regional centers similar to the other entities in this analysis, we 
were not able to identify most of the entities in any of the online 
databases. Furthermore, while regional centers are an integral 
component of the EB-5 program, DHS does not collect data on the 
administrative fees the regional centers charge to the foreign 
investors who are investing in one of their projects. DHS did not focus 
on the bundled capital investment amounts (either $1 million or 
$500,000 per investor) that the regional center invests into a new 
commercial enterprise. Such investment amounts are not necessarily 
indicative of whether the regional center is appropriately 
characterized as a small entity for purposes of the RFA.
    Due to the lack of regional center revenue data, DHS assumes 
regional centers collect revenue through the

[[Page 73322]]

administrative fees charged to investors. Searching through several 
public Web sites, DHS gathers that administrative fees charged to 
investors could range between $30,000 and $100,000 per investor.\105\ 
DHS assumes administrative fees charged to investors are $30,000 per 
investor for the purposes of this analysis. DHS does not know the 
extent to which these regional centers can pass along fee increases to 
individual investors. Passing along the costs from this rule could 
reduce or eliminate the economic impacts to the regional centers. While 
DHS cannot definitively state there is no significant economic impact 
to these small entities based on existing information, DHS assumes 
existing regional centers that have revenues equal to or less than 
$303,500 per year \106\ (some of which we assume will be derived from 
administrative fees charged to individual investors) could experience a 
significant economic impact if we assume a fee increase that represents 
1 percent of annual revenue is a ``significant'' economic burden under 
the RFA. DHS also assumes newly designated regional centers that have 
revenues equal to or less than $1,779,500 per year \107\ could also 
experience a significant impact.
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    \105\ See Yen, Christine et al., ``A Report on Source of Funds: 
Perils of the Administrative Fee.'' EB5 Investors Magazine (Aug. 20, 
2015), available at: http://www.eb5investors.com/magazine/article/A-Report-on-Source-of-Funds; see also Green, Merritt. ``The Costs of 
an EB-5 Regional Center Project Investment.'' (June 27, 2014), 
available at: http://www.generalcounsellaw.com/the-cost-of-an-eb-5-regional-center-project-investment/.
    \106\ Calculation: 1 percent of $303,500 = $3,035 (the new fee 
for Form I-924A).
    \107\ Calculation: 1 percent of $1,779,500 = $17,995 (the new 
fee for Form I-924).
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    DHS was able to obtain some sample data on 440 regional centers 
operating 5,886 projects. These 5,886 projects had a total of 54,506 
investors, averaging 124 investors per regional center.\108\ Assuming 
an average of 124 investors is a representative proxy of the regional 
centers, and that $30,000 is the minimum administrative fee charged by 
regional centers, then such fees will represent approximately $3.7 
million in revenue. In that case, DHS expects that the filing fee 
increase for Form I-924 and the creation of a new fee for Form I-924A 
will not cause a significant economic impact to these entities.
---------------------------------------------------------------------------

    \108\ DHS, USCIS, Immigrant Investor Program Office.
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e. Petition for Amerasian, Widow(er), or Special Immigrant, Form I-360
    As previously described in this analysis, the fee for Form I-360 
will increase from $405 to $435, a $30 (7 percent) increase. DHS was 
able to obtain internal data for FY 2015 showing 1,890 unique entities 
submitted 4,399 Form I-360 petitions for religious workers. Of these 
1,890 unique entities, approximately 96 percent were churches, mosques, 
synagogues, temples, or other places of worship, and DHS thus chose to 
consider all 1,890 entities to be small entities. Most entities only 
submitted 1 or 2 petitions. As previously described, DHS analysis 
showed that the costs per entity imposed by this rule represent only 
0.15 percent of the average salary for clergy; 0.16 percent of the 
average salary for directors of religious of activities and education, 
and 0.20 percent of the average salary for all other religious workers. 
As all of these are under the 5 percent average annual labor cost SBA 
guidelines, DHS determined that the additional regulatory costs imposed 
by this rule are not significant.
5. A Description of the Projected Reporting, Recordkeeping and Other 
Compliance Requirements of the Rule, Including an Estimate of the 
Classes of Small Entities Which Will Be Subject to the Requirement and 
the Type of Professional Skills Necessary for Preparation of the Report 
or Record
    This final rule imposes higher fees for filers of Forms I-129, I-
140, I-910, I-924, I-924A, and I-360. The new fee structure, as it 
applies to the small entities outlined above, results in the following 
fees: Form I-129 ($460), Form I-140 ($700), Form I-910 ($785), Form I-
924 ($17,795), Form I-924A ($3,035), and Form I-360 ($435). This final 
rule does not require any new professional skills for reporting.
6. A Description of the Steps the Agency Has Taken To Minimize the 
Significant Economic Impact on Small Entities Consistent With the 
Stated Objectives of Applicable Statutes, Including a Statement of the 
Factual, Policy, and Legal Reasons for Selecting the Alternative 
Adopted in the Final Rule and Why Each One of the Other Significant 
Alternatives to the Rule Considered by the Agency Which Affect the 
Impact on Small Entities Was Rejected
    The INA 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 applicants. In addition, DHS must 
fund the costs of providing services without charge by using a portion 
of the filing fees collected for other immigration benefits. Without an 
increase in fees, DHS will not be able to maintain the level of service 
for immigration and naturalization benefits that it now provides. DHS 
has considered the alternative of maintaining fees at the current level 
with reduced services and increased processing times, but has 
determined that this will not be in the interest of applicants and 
petitioners. Therefore, this alternative was rejected.
    While most immigration benefit fees apply to individuals, as 
described previously, some also apply to small entities. DHS seeks to 
minimize the impact on all parties, but in particular small entities. 
Another alternative to the increased economic burden of the fee 
adjustment is to maintain fees at their current level for small 
entities. The strength of this alternative is that it assures that no 
additional fee-burden is placed on small entities; however, small 
entities will experience negative effects due to the service reductions 
that will result in the absence of the fee adjustments in this final 
rule.
    Without the fee adjustments provided in this rule, significant 
operational changes to DHS would be necessary. Given current filing 
volume and other economic considerations, DHS requires additional 
revenue to prevent immediate and significant cuts in planned spending. 
These spending cuts would include reductions in areas such as Federal 
and contract staff, infrastructure spending on information technology 
and facilities, and training. Depending on the actual level of workload 
received, these operational changes would result in longer processing 
times, a degradation in customer service, and reduced efficiency over 
time. These cuts would ultimately represent an increased cost to small 
entities by causing delays in benefit processing and reductions in 
customer service.

B. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (UMRA) requires certain 
actions to be taken before an agency promulgates any notice of 
rulemaking ``that is likely to result in promulgation of any rule that 
includes any Federal mandate that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year.\109\ While this rule may result in the 
expenditure of more than $100 million by the private sector annually, 
the rulemaking is not a ``Federal

[[Page 73323]]

mandate'' as defined for UMRA purposes,\110\ as the payment of 
immigration benefit fees by individuals or other private sector 
entities is, to the extent it could be termed an enforceable duty, one 
that arises from participation in a voluntary Federal program, applying 
for immigration status in the United States.\111\ Therefore, no actions 
were deemed necessary under the provisions of the UMRA.
---------------------------------------------------------------------------

    \109\ See 2 U.S.C. 1532(a).
    \110\ See 2 U.S.C. 658(6).
    \111\ See 2 U.S.C. 658(7)(A)(ii).
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C. Small Business Regulatory Enforcement Fairness Act

    This rulemaking is a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. This rulemaking will 
result in an annual effect on the economy of more than $100 million 
(adjusted annually for inflation) in order to generate the revenue 
necessary to fully fund all adjudication and naturalization services. 
The increased costs will be recovered through the fees charged for 
various immigration benefit requests. As small businesses may be 
impacted under this regulation, DHS has prepared a RFA analysis.

D. Congressional Review Act

    The Congressional Review Act \112\ requires rules to be submitted 
to Congress before taking effect. DHS will submit a report regarding 
the issuance of this final rule before its effective date, as required 
by 5 U.S.C. 801 to Congress and the Comptroller General of the United 
States. This rule is deemed a major rule and will therefore have a 60-
day delayed effective date.
---------------------------------------------------------------------------

    \112\ See 5 U.S.C. 801 et seq.
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E. Executive Orders 12866 and 13563 (Regulatory Planning and Review)

1. Background and Purpose of the Final Rule
    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available alternatives, and if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety 
effects, distributive impacts, and equity). Executive Order 13563 
emphasizes the importance of quantifying both costs and benefits, of 
reducing costs, of harmonizing rules, and of promoting flexibility. 
This final rule has been designated an ``economically significant 
regulatory action'' under section 3(f)(1) of Executive Order 12866. 
Accordingly, OMB has reviewed this final rule.
    DHS projects an annual budget of $3.038 billion in FY 2016/2017, a 
$767 million (34 percent) increase over the FY 2010/FY 2011 fee review-
adjusted annual budget of $2.271 billion. This final rule is estimated 
to provide DHS with an average of $546 million in annual fee revenue 
above the FY 2010/FY 2011 levels, based on a projected annual fee-
paying volume of 4.9 million immigrant benefit requests and 2.6 million 
requests for biometric services.\113\ DHS will use this increase in 
revenue under subsections 286(m) and (n) of the INA, 8 U.S.C. 1356(m) 
and (n), to fund the full costs of processing immigration benefit 
requests and associated support benefits; the full cost of providing 
similar benefits to asylum and refugee applicants at no charge; and the 
full cost of providing similar benefits to others at no charge.
---------------------------------------------------------------------------

    \113\ This estimate is based on FY 2016/FY 2017 fee study volume 
projections.
---------------------------------------------------------------------------

    If DHS does not adjust the current fees to recover the full costs 
of processing immigration benefit requests, it will be forced to make 
reductions in services provided to applicants and petitioners. These 
will reverse the considerable progress DHS has made over the last 
several years to reduce the backlogs of immigration benefit filings, to 
increase the integrity of the immigration benefit system, and to 
protect national security and public safety. The revenue increase is 
based on DHS costs and volume projections available at the time the 
rule was drafted. DHS has placed in the rulemaking docket a detailed 
analysis that explains the basis for the annual fee increase.
    DHS has included an accounting statement detailing the annualized 
impacts of the rule in Table 5 below. DHS makes a correction from the 
NPRM by adding in the opportunity costs of time for filing Form I-942 
as discussed later in this analysis. Thus, DHS notes the higher cost in 
this final rule.

         Table 5--Accounting Statement, FY 2016 Through FY 2017
------------------------------------------------------------------------
          Category              Primary estimate      Maximum estimate
------------------------------------------------------------------------
Benefits:
    Un-quantified Benefits..    Maintain current level of service with
                                 respect to processing times, customer
                                    service, and efficiency levels.
------------------------------------------------------------------------
Costs:
    Quantified Costs........  $717,724............  $717,724
------------------------------------------------------------------------
Transfers:
    Annualized Monetized      546,429,650.........  546,429,650
     Transfers at 3 percent.
    Annualized Monetized      546,429,650.........  546,429,650
     Transfers at 7 percent.
------------------------------------------------------------------------
          Category                   Effects               Source
------------------------------------------------------------------------
Effects on State, local, and/ For those state,      Final Rule,
 or tribal governments.        local, and/or         Executive Order
                               tribal governments    12866/13563
                               that submit           Analysis.
                               petitions for
                               nonimmigrant and
                               immigrant workers,
                               they will face an
                               increase in filing
                               fees.
Effects on small businesses.  For those small       Final Rule,
                               businesses that       Executive Order
                               submit petitions      12866/13563
                               for nonimmigrant      Analysis, Small
                               and immigrant         Entity Analysis.
                               workers, they will
                               face an increase in
                               filing fees.
------------------------------------------------------------------------


[[Page 73324]]

2. Amendments and Impacts of Regulatory Change
    This rule is intended to adjust current fees to ensure that DHS is 
able to recover the full costs of the immigration services it provides 
and maintain adequate service.\114\ In addition to increasing fees, 
this final rule includes the following provisions: Provisions that DHS 
will reject an immigration benefit request paid with a dishonored 
check; provisions that DHS will reject an application that does not 
include the required biometric services fee; the institution of a 
reduced fee for the Application for Naturalization, Form N-400; and 
provisions that DHS will provide fee refunds at its discretion.
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    \114\ For comparison between current fees, USCIS estimates for 
costs of underlying services, and changes to fees, see Appendix VI, 
Table 4 in the supporting documentation.
---------------------------------------------------------------------------

a. Dishonored Payments
    This final rule changes how DHS will treat a benefit request filing 
accompanied by fee payment (in the form of check or other financial 
instrument) that is subsequently returned as not payable.\115\ Current 
regulations provide that when a check or other financial instrument 
used to pay a filing fee is subsequently returned as not payable, the 
remitter will be notified and requested to pay the filing fee and 
associated service charge within 14 calendar days, without 
extension.\116\ If the benefit request is pending and these charges are 
not paid within 14 days, the benefit request will be rejected as 
improperly filed. In addition, a receipt issued by a DHS officer for 
any remittance will not be binding upon DHS if the remittance is found 
uncollectable, and legal and statutory deadlines will not be deemed to 
have been met if payment is not made within 10 business days after 
notification by DHS of the dishonored payment.\117\ In accordance with 
these current provisions, when a payment is returned as not payable, 
DHS places the immigration benefit request on hold, and suspends 
adjudication. If payment fails, DHS assesses a $30 penalty and pursues 
the unpaid fee and penalty using administrative debt collection 
procedures.\118\ If payment (the unpaid fee plus $30) is made within 
the allotted 14 day time period, DHS resumes processing the benefit 
request. If a payment is not corrected by the applicant, DHS rejects 
the filing for nonpayment.\119\
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    \115\ USCIS will immediately reject and not accept for 
processing any applications and petitions submitted with invalid 
payments, e.g., an unsigned check or invalid bank account on an 
electronic payment. The subsequent identification as not payable 
will occur when an attempt is made to process the payment through a 
bank, but the bank does not honor the payment (e.g., because of 
insufficient funds).
    \116\ See 8 CFR 103.2(a)(7)(ii).
    \117\ See 8 CFR 103.2(a)(7)(ii), 103.7(a)(2).
    \118\ See 8 CFR 103.7(a)(2).
    \119\ See 8 CFR 103.2(a)(7)(ii).
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    In this final rule, DHS is eliminating provisions that require 
USCIS to hold benefit request filings while deficient payments are 
corrected. Under the amendment, if a check or other financial 
instrument used to pay a filing fee is subsequently returned as not 
payable, DHS will now reject the filing when Treasury notifies DHS that 
the payment has failed; USCIS will no longer hold the filing and 
provide 14 days for the deficient payment to be corrected.
    To ensure that a payment rejection is the result of insufficient 
funds and not due to ACH and bank network outages, DHS has made a minor 
revision to the proposed amendment in the NPRM. Under the final rule, 
DHS will submit all rejected payments to the applicant's bank two times 
(once upon original deposit and once again if the original attempt to 
deposit the payment is unsuccessful). Based on the typical time 
required for a payment instrument to clear a financial institution, 
this will allow approximately 5 additional days for payments to 
clear.\120\ DHS estimates the new mandatory rejected payment re-
presentment requirement will therefore provide approximately 10 days 
for payments to be corrected before DHS receives notification that the 
payment has failed and rejects the filing or imposes the $30 returned 
check fee.\121\
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    \120\ See 8 CFR 103.2(a)(7)(ii)(D).
    \121\ A commenter wrote that a fee payment may be submitted even 
when the applicant knows the account lacks the funds to cover the 
payment because a document is due to expire or a deadline is 
approaching.
---------------------------------------------------------------------------

    Under the new process, DHS will continue to intake benefit 
requests, attempt to deposit fees, and begin processing filings as soon 
as possible.\122\ In cases where the payment is initially rejected, 
Treasury will re-attempt to deposit the payment. However, if the 
payment is rejected a second time, Treasury will notify DHS and DHS, 
solely under its own authority, will reject the filing for non-payment 
of the required fee. In such cases where the benefit request has 
already been approved when DHS is notified of the failed payment, DHS 
will send the approved applicant or petitioner a notice of intent to 
revoke the approval. Regardless of the disposition of the benefit 
request, if the payment to DHS is rejected, the remitter will be 
charged a $30 returned check service charge.\123\ In order to estimate 
the number of applicants who will make a payment that is ultimately 
dishonored, DHS analyzed the count of all returned and subsequently 
corrected payments of a credit card or check from fiscal years 2012 to 
2015.\124\ In FY 2015, a total of 10,818 payments were returned (Table 
6). Of those 10,818 returned payments, 6,399 (59.2 percent) were later 
corrected. The average annual number of returned payments from FY 2012 
to FY 2015 was 9,781 with an annual average of 6,478 payments (66.2 
percent) later corrected. Assuming all included the current service fee 
of $30, the resulting total annual cost to applicants for returned 
payments is $293,430.\125\
---------------------------------------------------------------------------

    \122\ USCIS will not store and hold any case. The adjudicator 
will intake and begin processing every benefit request as soon as 
practicable and will presume that all fee payments are valid. If the 
payment is rejected (which could take 10-days to know) and the 
adjudicator has not approved the request, Treasury will notify USCIS 
of the rejected payment, and USCIS will collect the request package 
and reject it. If the fees have been deposited and the benefit 
request has not yet been adjudicated, USCIS will process a refund. 
If the request is approved, USCIS may revoke after notice without a 
refund.
    \123\ See amended 8 CFR 103.7(a)(2).
    \124\ Corrected payments include any payment collected by USCIS 
after the return of an initial payment.
    \125\ Calculation: 9,781 (average number of returned payments) x 
$30 (current service fee charge) = $293,430 (total cost for returned 
payments)).

                Table 6--Count of Returned and Corrected Credit Card/Check Payments, FY 2012-2015
----------------------------------------------------------------------------------------------------------------
                                                                                       Total       Percentage of
                              Year                                Total returned     corrected       corrected
                                                                     payments        payments        payments
----------------------------------------------------------------------------------------------------------------
2015............................................................          10,818           6,399            59.2
2014............................................................           9,200           6,467            70.3
2013............................................................           9,785           6,496            66.4
2012............................................................           9,322           6,550            70.3

[[Page 73325]]

 
Average.........................................................           9,781           6,478            66.2
----------------------------------------------------------------------------------------------------------------
Source: Department of Homeland Security, Immigration and Customs Enforcement, Burlington Finance Center.

    As stated previously, with the implementation of this final rule, 
the regulations will no longer require DHS to hold benefit requests, 
and applicants will no longer be allowed to correct payments directly. 
Instead, all rejected payments will be re-presented to the relevant 
financial institution a second time, which will allow approximately 
another 5 days for it to clear.\126\ DHS' current policy is to re-
present a rejected payment twice to see if it clears on the second or 
third attempt before sending the filer the bill for the rejected 
payment. Under this final rule, Treasury will only re-present the 
payment on one occasion to save time. The average 9,781 returned 
payments (Table 6) will now be rejected unless the payments clear when 
re-presented by Treasury. This re-presentation by Treasury has no 
additional cost since Treasury currently includes this step in the 
process to deposit DHS fee payments. DHS anticipates that the prospect 
of rejection will encourage filers to provide the correct filing fees 
at the time they submit their benefit requests. However, DHS recognizes 
that there will continue to be filers who file benefit requests with 
incorrect or deficient fees.
---------------------------------------------------------------------------

    \126\ See 8 CFR 103.2(a)(7)(ii)(D).
---------------------------------------------------------------------------

    For filers, filing fees are a required and fundamental aspect of 
the benefit being requested. By providing a 14-day window to correct 
dishonored payments, the regulation currently permits a benefit request 
paid with a dishonored payment instrument to secure a place in line 
ahead of a benefit request that was accompanied by a proper payment, 
including in programs that are time sensitive or involve numerically 
limited visas. In all cases, rejected filings may be refiled 
immediately with the proper payment but there are some slight 
differences depending on whether the submission is paper-based or 
electronically filed. The DHS online filing system will permit the 
rejected applications to remain accessible for the applicant to print 
and view. The original rejected electronic submission will not be 
available for resubmission with a new payment; however, the rejected 
submission may be used as a reference when a new application is being 
completed. In cases where the rejected submission is paper-based, the 
entire application/petition/request and supporting documentation are 
returned when rejected and can generally be refiled with the proper 
payment instrument.
    The changes in this final rule will provide several benefits to 
DHS. These changes lower DHS administrative costs for holding and 
tracking benefit requests during the 14-day period currently provided 
to correct dishonored payments. The holding and tracking of benefit 
requests requires physical storage space that will no longer be 
required with these revisions. DHS currently incurs administrative 
costs through tracking payments in postage costs and adjudicator time 
among other costs. This change in process also provides parity to those 
individuals who file benefit requests with the correct fees, 
particularly in programs that are time sensitive or involve numerically 
limited visas.
    DHS recognizes the unique impact that these changes may have in the 
context of the H-1B program regulations, which make visa numbers 
available to petitions in the order in which the petitions are 
filed.\127\ The H-1B regulations allow the final receipt date to be any 
of the first 5 business days on which petitions subject to the 
applicable numerical limit may be received. DHS then conducts a random 
selection among the petitions received during any of those 5 business 
days, known as the ``H-1B lottery.'' Currently, petitions remain 
eligible for the H-1B lottery despite having failed payments, as long 
as the payments are corrected within the provided 14-day or 10-day 
timeframe.\128\ Under the changes in this final rule, however, DHS will 
remove petitions from the H-1B lottery as soon as DHS receives 
notification of a failed payment, typically within 10 days of the 
receipt date. DHS does not have data at this time to estimate the 
impact on how many petitions may be affected by these changes. DHS is 
also unable to monetize the cost to the applicant of having a petition 
removed from selection for the H-1B lottery.
---------------------------------------------------------------------------

    \127\ See 8 CFR 214.2(h)(8)(ii)(B).
    \128\ See 8 CFR 103.2(a)(7)(ii).
---------------------------------------------------------------------------

b. Failure To Pay the Biometric Services Fees
    DHS is also eliminating provisions governing non-payment of the 
biometric services fee in this final rule. Currently, if a benefit 
request is received by DHS without the correct biometric services fee, 
DHS will notify the filer of the deficiency and take no further action 
on the benefit request until payment is received.\129\ Failure to 
submit the correct biometric services fee within the time allotted in 
the notice will result in denial of the benefit request. If the 
required biometric services fee is missing, DHS suspends adjudication 
and places the benefit request on hold. If payment is made within the 
allotted time, DHS resumes processing the benefit request. If the 
biometric services fee is not paid, the benefit request is denied as 
abandoned.
---------------------------------------------------------------------------

    \129\ See 8 CFR 103.17(b)(1).
---------------------------------------------------------------------------

    Through this final rule, DHS is deleting the regulatory provisions 
that permitted benefit requests to be held while deficient payments are 
corrected. As a result of these deletions, DHS will reject a benefit 
request if, for instance, it is received without the correct biometric 
services fee, as specified in the form instructions.
    In order to analyze the number of people who do not pay the correct 
biometric services fee, DHS updated the numbers from the NPRM with more 
recent data and gathered 7 months of data from DHS lockbox 
facilities.\130\ The data covers the period from December 1, 2015 to 
June 30, 2016. During this 7-month period, DHS lockbox facilities 
accepted 2,624,825 benefit requests. Of these, a total of 6,179 (.24 
percent) of filers were issued a notice alerting them that their 
biometric services fees were missing. Assuming this 7-month trend is 
typical of the number of deficient biometric services fee notices, the 
new provision will affect less than 1 percent of all benefit requests 
received at DHS lockbox facilities. As previously mentioned, rejected 
filings may be refiled immediately. While filers do not incur monetary 
costs (except for

[[Page 73326]]

additional postage fees) associated with the rejection of a benefit 
request, reapplying for benefits with the correct fees requires time. 
Again, DHS anticipates this new provision will encourage individuals to 
file with the appropriate fees.
---------------------------------------------------------------------------

    \130\ While USCIS prefers to base assumptions on a longer time 
period (ideally 5 years), 7 months was the longest time period for 
which this data was available.
---------------------------------------------------------------------------

    Additionally, this change will streamline DHS' process for handling 
benefit requests when biometrics services fees are not submitted when 
required. DHS costs are reduced by eliminating the administrative 
handling costs associated with holding cases while biometric services 
fees are collected.
c. Reduced Fee for Application for Naturalization
    The current fee for the Application for Naturalization, Form N-400, 
is $595. In most cases, applicants must also pay an $85 biometrics 
services fee, so the total cost for most applicants is $680. If an 
applicant cannot pay the fee, he or she can file a Request for Fee 
Waiver, Form I-912, along with their Form N-400. DHS considers anyone 
with a household income at or below 150 percent of the Federal Poverty 
Guidelines to be eligible for a fee waiver. If DHS approves an 
applicant's fee waiver, both the $595 Form N-400 fee and the $85 
biometrics services fee, where applicable, are waived.
    DHS will increase the Form N-400 fee from $595 to $640, a $45 (8 
percent) increase in this final rule. The biometric services fee will 
remain unchanged at $85. Therefore, the new costs of Form N-400 plus 
the biometric services fee will total $725. DHS is introducing an 
additional fee option for those non-military naturalization applicants 
with family incomes greater than 150 percent and not more than 200 
percent of the Federal Poverty Guidelines. Specifically, applicants 
will receive a 50 percent discount and only be required to pay a filing 
fee of $320 for the N-400, plus an additional $85 biometric services 
fee (for a total of $405). This reduced fee option is intended to limit 
any potential economic disincentives that some eligible naturalization 
applicants face when deciding whether or not to seek citizenship. The 
lower fee will help ensure that those who have worked hard to become 
eligible for naturalization are not limited by their economic means. In 
order to qualify for this fee, the eligible applicant will have to 
submit the newly created Form I-942, Request for Reduced Fee, along 
with their Form N-400. Form I-942 will require the names of everyone in 
the household and documentation of the household income to determine if 
the applicant's household income is greater than 150 and not more than 
200 percent of the Federal Poverty Guidelines.
    As described in the NPRM, DHS estimates that approximately 11 
percent of all Form N-400 applicants, excluding military applicants, 
could qualify for the reduced fee. Given the non-military Form N-400 
volume projection estimate of 821,500 annually, over the biennial 
period, DHS expects that 90,365 filers will be included in the 
population eligible for the fee reduction.\131\ While these 90,365 
filers represent only the current number of applicants who will be 
eligible for the fee reduction, DHS anticipates an increase in Form N-
400 filings as a result of the changes in this final rule. DHS 
anticipates that the reduced fee for applicants with qualifying incomes 
will remove economic barriers associated with the costs of associated 
fees and thus encourage more eligible applicants to file their Form N-
400 applications. While DHS anticipates an increase in Form N-400 
filings due to this fee reduction, we cannot predict how many more 
eligible applicants will file their N-400 applications at this time.
---------------------------------------------------------------------------

    \131\ Calculation: 821,500 * 11 percent.
---------------------------------------------------------------------------

    DHS has factored the estimated revenue loss from this product line 
into its fee model, so those costs are reallocated over other fee 
paying benefit requests. While the costs of the reduced fee are being 
reallocated to other fee-paying customers, DHS believes the benefits of 
facilitating access to citizenship outweighs the cost reallocation 
impacts.
    As previously mentioned, an eligible applicant will have to submit 
a Form I-942 along with a Form N-400 application to qualify for this 
reduced fee. While DHS is not imposing an additional fee for Form I-
942, DHS has estimated the opportunity cost of time to applicants to 
complete the form. The total annual opportunity cost of time for 
applicants will be $717,724, if all 90,365 eligible applicants apply 
for the reduced fee.\132\ The Federal minimum wage rate \133\ of $7.25 
was used as the hourly wage rate because the anticipated applicants are 
asserting they cannot afford to pay the full DHS fee and DHS thus 
assumes that such applicants earn less than average incomes. The BLS 
reports the average employer costs for employee compensation for all 
civilian workers in major occupational groups and industries. Using 
these data from BLS, DHS calculated compensation-to-wage multiplier of 
1.46 to estimate the full opportunity costs to applicants, including 
employee wages, salaries, and the full costs of benefits, such as paid 
leave, insurance, and retirement.\134\ To anticipate the full 
opportunity cost of time to applicants, we multiplied the Federal 
minimum wage rate by 1.46 to account for the full cost of employee 
benefits for a total of $10.59. The time burden estimate was developed 
by DHS with an average of 45 minutes (or .75 of an hour) to complete 
Form I-942, resulting in an opportunity cost of time per petition of 
$7.94.\135\ This additional burden is offset by the benefits received 
from the $320 fee reduction.
---------------------------------------------------------------------------

    \132\ Total Opportunity Costs of Time to Applicants = Expected 
Filers (90,365) * (Full Cost of Employee Benefits ($10.59) * Time 
Burden (.75 hr.)).
    \133\ U.S. Department of Labor, Wage and Hour Division. The 
minimum wage in effect as of July 13, 2016. See http://www.dol.gov/general/topic/wages/minimumwage.
    \134\ The compensation-to-wage multiplier is calculated as 
follows: (All Workers Total Employee Compensation per hour)/(Wages 
and Salaries per hour). See Economic News Release, U.S. Department 
of Labor, BLS, Table 1. Employer Costs per hour worked for employee 
compensation and costs as a percent of total compensation: Civilian 
workers, by major occupational and industry group (Sept. 2015), 
available at http://www.bls.gov/news.release/pdf/ecec.pdf.
    \135\ Calculation: $10.59 hourly wage rate * .75 hours.
---------------------------------------------------------------------------

d. Refunds. DHS is also amending regulations for fee refunds in this 
final rule. In general, and except for a premium processing fee under 8 
CFR 103.7(e)(2)(i), DHS does not refund a fee regardless of the 
decision on the immigration benefit request. DHS makes very rare 
exceptions when DHS determines that an administrative error occurred 
resulting in the inadvertent collection of a fee. DHS errors may 
include:
     Unnecessary filings. Cases in which DHS (or DOS in the 
case of an immigration benefit request filed overseas) erroneously 
requests that an individual file an unnecessary form along with the 
associated fee; and
     Accidental Payments. Cases in which an individual pays a 
required fee more than once or otherwise pays a fee in excess of the 
amount due and DHS (or the DOS in the case of an immigration benefit 
request filed overseas) erroneously accepts the erroneous fee.
    DHS is codifying the process of continuing to provide these refunds 
in cases involving obvious DHS error. Individuals will continue to 
request a refund through the current established process, which 
requires calling the customer service line or submitting a written 
request for a refund to the office having jurisdiction over the 
relevant immigration benefit request.
    Any DHS refunds provided are generally due to obvious DHS errors 
resulting from electronic system

[[Page 73327]]

behavior issues or human error. The anticipation of increased 
electronic filings in the future also spurs the need for this 
provision. Currently, DHS provides fee refunds to applicants as shown 
in Table 7. Over the past 3 fiscal years, DHS issued an annual average 
of 5,363 refunds, resulting in an average of $2.1 million refunded. 
This is approximately $396 per refund. These numbers and amounts of 
refunds do not include premium processing refunds regulated under 8 CFR 
103.7(e)(2)(i). In the context of the total number of fees collected by 
DHS across all benefits, this average amount of refunds is still less 
than 1 percent of the total fees collected.

       Table 7--Amount and Number of Fee Refunds Provided by USCIS
------------------------------------------------------------------------
                                              Amount         Number of
               Fiscal year                   refunded         refunds
------------------------------------------------------------------------
2013....................................      $2,674,290           7,405
2014....................................       1,805,006           4,198
2015....................................       1,890,638           4,485
Average.................................       2,123,311           5,363
------------------------------------------------------------------------
Source: Department of Homeland Security, U.S. Immigration and Customs
  Enforcement, Burlington Finance Center.

    The changes in the final rule will benefit applicants who 
accidently submit payments twice. DHS anticipates this to be a bigger 
issue as more forms and associated fees begin to be collected through 
electronic means. Applicants will recoup any fees that were submitted 
erroneously due to electronic systems issues. DHS benefits by having 
clear regulatory authority concerning the relatively few cases in which 
refunds are provided.
    There may be some administrative costs associated with the issuance 
of refunds. DHS may see a potential initial increase in requests for 
refunds due to the visibility of this rule; however, DHS does not 
anticipate a sustained increase as DHS is not anticipating any changes 
to the conditions for issuing refunds. There may also be a potential 
increase in the time burden costs for DHS adjudicators to process these 
potential initial increases in refund requests. DHS does not have cost 
estimates at this time indicating the number of hours required to 
process and issue these refunds. There may also be some opportunity 
costs of time to filers who submit refund requests; however, DHS 
anticipates this cost is offset by the benefit gained in receiving a 
refund.

F. Executive Order 13132 (Federalism)

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

G. Executive Order 12988 (Civil Justice Reform)

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

H. Family Assessment

    DHS has determined that this rule will not affect family well-being 
within the meaning of section 654 of the Treasury and General 
Government Appropriations Act, 1999, Public Law 105-277, 112 Stat. 2681 
(1998). By increasing immigration benefit request fees, this action 
will impose a slightly higher financial burden on some families that 
petition for family members to join them in the United States. On the 
other hand, the rule will provide USCIS with the funds necessary to 
carry out adjudication and naturalization services and provide similar 
services for free to disadvantaged populations, including asylees, 
refugees, individuals with Temporary Protected Status, and victims of 
human trafficking. DHS has determined that the benefits of the action 
justify the financial impact that it will place on some families.

I. Paperwork Reduction Act--Comments on the Proposed Information 
Collection Changes

    Under the Paperwork Reduction Act of 1995, all Departments are 
required to submit to OMB, for review and approval, any reporting and 
recordkeeping requirements inherent in a rule. See 44 U.S.C. 3507. This 
final rule requires changes to OMB control number 1615-0052, the 
Application for Naturalization, Form N-400, to collect information 
necessary to document the applicant's eligibility for the reduced fee 
proposed in this final rule at 8 CFR 103.7(b)(1)(i)(AAA)(1); OMB 
control number 1615-0061, Annual Certification of Regional Center, Form 
I-924A, and the Application for Regional Center Designation Under the 
Immigrant Investor Program, Form I-924, to add the instructions 
necessary to require the annual fee; and OMB control number 1615-NEW, 
Request for Reduced Fee, Form I-942, to document the applicant's 
eligibility for the reduced fee. DHS specifically requested public 
comments on the proposed changes to the forms and form instructions in 
the NPRM in accordance with 5 CFR 1320.11(a). OMB reviewed the request 
filed in connection with the NPRM and also filed comments in accordance 
with 5 CFR 1320.11(c). DHS summarized the comments received from the 
public and responded below:
1. Request for Reduced Fee, Form I-942
    USCIS received some comments on the Request for Reduced Fee, Form 
I-942, which was part of the NPRM docket. USCIS proposed to require 
Form I-942 for an applicant to request the $320 reduced fee for the 
Application for Naturalization. The comments indicated that the Form I-
942's sections related to preparer and interpreter certifications were 
unnecessarily lengthy, as was the section for signatures of additional 
family members. The comments stated that these sections make the form 
appear longer and more onerous than it needs to be. The commenters also 
recommended that the form be optional, similar to the optional Request 
for Fee Waiver, Form I-912.
    USCIS designed the Request for Reduced Fee to be very similar to 
the Request for Fee Waiver. USCIS anticipates that preparers will 
benefit from having similar forms with similar formats. Additionally, 
USCIS does not believe that Form I-942 should be optional for reduced 
fee requests in the same way that Form I-912 is optional. With respect 
to Form I-912, USCIS recognizes that applicants may be able to address 
certain criteria, such as financial hardship, in a letter more

[[Page 73328]]

easily than through a form. However, the proposed sole basis for 
submitting a Request for Reduced Fee is the applicant's household 
income level. See 81 FR 26916. To qualify for the reduced fee, an 
applicant's household income must be greater than 150 and not more than 
200 percent of the Federal Poverty Guidelines. Id. USCIS believes that 
such income information is more easily conveyed to the agency, and 
accessed by the agency, if it is presented in a uniform manner through 
a form, rather than through a letter. To provide additional flexibility 
to reduced fee applicants, USCIS has also decided to permit multiple 
family members living in the same household who are each submitting an 
Application for Naturalization, and who are each within the relevant 
income levels for the reduced fee, to jointly submit one Form I-942 
with their naturalization applications.\136\ USCIS determined that 
permitting multiple requests on one form would impose less of a burden 
overall than requiring multiple members of the same household to file 
separate reduced fee requests. As a result of these comments, DHS 
changed the form to permit multiple family members to file on Form I-
942 with respect to multiple naturalization applications.
---------------------------------------------------------------------------

    \136\ In such cases, each family member who is requesting a 
reduced fee for their Application for Naturalization must sign the 
Form I-942. Applicants must submit the Form I-942 in the same 
envelope as the naturalization applications for which they are 
requesting fee waivers.
---------------------------------------------------------------------------

2. Annual Certification of Regional Center, Form I-924A
    At least one commenter recommended standardizing the questions for 
Form I-924A and indicated that the form provides little to no value to 
USCIS. USCIS believes the revised form and instructions better explain 
the annual reporting process and requirements, and provide more useful 
information to USCIS, than the previous version of the form. In 
addition, USCIS believes the revised forms address the commenter's 
concerns by eliminating many redundant and lengthy questions and 
instructions. While the form contains new questions, it is intended to 
result in more comprehensive reviews and to require fewer and simpler 
follow-up inquiries from USCIS in response to annual I-924A filings. 
DHS made no changes to the draft form or the proposed rule as a result 
of these comments. The form and fee are finalized as proposed. New CFR 
204.6(m).

List of Subjects

8 CFR Part 103

    Administrative practice and procedures, Authority delegations 
(government agencies), Freedom of Information, Privacy, Reporting and 
recordkeeping requirements, and Surety bonds.

8 CFR Part 204

    Administrative practice and procedure, Immigration, Reporting and 
recordkeeping requirements.

8 CFR Part 205

    Administrative practice and procedure, Immigration.

    Accordingly, DHS amends chapter I of title 8 of the Code of Federal 
Regulations as follows:

PART 103--IMMIGRATION BENEFITS; BIOMETRIC REQUIREMENTS; 
AVAILABILITY OF RECORDS

0
1. The authority citation for part 103 continues to read as follows:

    Authority: 5 U.S.C. 301, 552, 552(a); 6 U.S.C. 112, 8 U.S.C. 
1101, 1103, 1154, 1155, 1185, 1186a, 1186b, 1254a, 1304, 1324a, 
1356; 31 U.S.C. 9701; Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 1 et 
seq.); E.O. 12356, 47 FR 14874, 15557; 3 CFR, 1982 Comp., p. 166; 8 
CFR part 2; Pub. L. 112-54.


0
2. Section 103.2 is amended by:
0
a. Revising paragraph (a)(1);
0
b. Revising paragraph (a)(7); and
0
c. Revising paragraph (b)(9).
    The revisions read as follows:


Sec.  103.2  Submission and adjudication of benefit requests.

    (a) * * *
    (1) Preparation and submission. Every form, benefit request, or 
other document must be submitted to DHS and executed in accordance with 
the form instructions regardless of a provision of 8 CFR chapter I to 
the contrary. The form's instructions are hereby incorporated into the 
regulations requiring its submission. Each form, benefit request, or 
other document must be filed with the fee(s) required by regulation. 
Filing fees generally are non-refundable and, except as otherwise 
provided in this chapter I, must be paid when the benefit request is 
filed.
* * * * *
    (7) Benefit requests submitted. (i) USCIS will consider a benefit 
request received and will record the receipt date as of the actual date 
of receipt at the location designated for filing such benefit request 
whether electronically or in paper format.
    (ii) A benefit request which is rejected will not retain a filing 
date. A benefit request will be rejected if it is not:
    (A) Signed with valid signature;
    (B) Executed;
    (C) Filed in compliance with the regulations governing the filing 
of the specific application, petition, form, or request; and
    (D) Submitted with the correct fee(s). If a check or other 
financial instrument used to pay a fee is returned as unpayable, USCIS 
will re-submit the payment to the remitter institution one time. If the 
instrument used to pay a fee is returned as unpayable a second time, 
the filing will be rejected and a charge will be imposed in accordance 
with 8 CFR 103.7(a)(2).
    (iii) A rejection of a filing with USCIS may not be appealed.
    (b) * * *
    (9) Appearance for interview or biometrics. USCIS may require any 
applicant, petitioner, sponsor, beneficiary, or individual filing a 
benefit request, or any group or class of such persons submitting 
requests, to appear for an interview and/or biometric collection. USCIS 
may require the payment of the biometric services fee in 8 CFR 
103.7(b)(1)(i)(C) or that the individual obtain a fee waiver. Such 
appearance and fee may also be required by law, regulation, form 
instructions, or Federal Register notice applicable to the request 
type. USCIS will notify the affected person of the date, time and 
location of any required appearance under this paragraph. Any person 
required to appear under this paragraph may, before the scheduled date 
and time of the appearance, either:
    (i) Appear before the scheduled date and time;
    (ii) For good cause, request that the biometric services 
appointment be rescheduled; or
    (iii) Withdraw the benefit request.
* * * * *

0
4. Section 103.7 is amended by revising paragraphs (a)(2) and (b)(1) to 
read as follows:


Sec.  103.7  Fees.

* * * * *
    (a) * * *
    (2) Remittances must be drawn on a bank or other institution 
located in the United States and be payable in United States currency. 
Remittances must be made payable in accordance with the guidance 
specific to the applicable U.S. Government office when submitting to a 
Department of Homeland Security office located outside of the United 
States. Remittances to the Board of Immigration Appeals must be made 
payable to the ``United States Department of Justice,'' in accordance 
with 8 CFR 1003.8. If a remittance in payment of a fee or any

[[Page 73329]]

other matter is not honored by the bank or financial institution on 
which it is drawn:
    (i) A charge of $30.00 will be imposed;
    (ii) The provisions of 8 CFR 103.2(a)(7)(ii) apply, no receipt will 
be issued, and if a receipt was issued, it is void and the benefit 
request loses its receipt date; and
    (iii) If the benefit request was approved, the approval may be 
revoked upon notice. If the approved benefit request requires multiple 
fees, this provision will apply if any fee submitted is not honored. 
Other fees that were paid for a benefit request that is revoked under 
this provision will be retained and not refunded. A revocation of an 
approval because the fee submitted is not honored may be appealed to 
the USCIS Administrative Appeals Office, in accordance with 8 CFR 103.3 
and the applicable form instructions.
    (b) Amounts of fees--(1) Established fees and charges--(i) USCIS 
fees. A request for immigration benefits submitted to USCIS must 
include the required fee as established under this section. The fees 
established in this section are associated with the benefit, the 
adjudication, or the type of request and not solely determined by the 
form number listed below. The term ``form'' as defined in 8 CFR part 1, 
may include a USCIS-approved electronic equivalent of such form as 
USCIS may provide on its official Web site at http://www.uscis.gov.
    (A) Certification of true copies: $2.00 per copy.
    (B) Attestation under seal: $2.00 each.
    (C) Biometric services fee. For capturing, storing, and using 
biometric information (Biometric Fee). A service fee of $85 will be 
charged to pay for background checks and have their biometric 
information captured, stored, and used for any individual who is 
required to submit biometric information for an application, petition, 
or other request for certain immigration and naturalization benefits 
(other than asylum or refugee status) or actions. USCIS will not charge 
a biometric services fee when:
    (1) An applicant under 8 CFR 204.3 submits to USCIS a written 
request for an extension of the approval period of an Application for 
Advance Processing of an Orphan Petition (Application), if the request 
is submitted before the approval period expires and the applicant has 
not yet filed a Petition to Classify Orphan as an Immediate Relative 
(Petition) in connection with the approved Application. The applicant 
may submit only one extension request without having to pay an 
additional biometric services fee. If the extension of the approval 
expires before the applicant files an associated Petition, then the 
applicant must file either a new Application or a Petition, and pay a 
new filing fee and a new biometric services fee.
    (2) The application or petition fee for the associated request has 
been waived under paragraph (c) of this section; or
    (3) The associated benefit request is one of the following:
    (i) Application for Posthumous Citizenship, Form N-644;
    (ii) Refugee/Asylee Relative Petition, Form I-730;
    (iii) Application for T Nonimmigrant Status, Form I-914;
    (iv) Petition for U Nonimmigrant Status, Form I-918;
    (v) Application for Naturalization, Form N-400, by an applicant who 
meets the requirements of sections 328 or 329 of the Act with respect 
to military service under paragraph (b)(1)(i)(WW) of this section;
    (vi) Application to Register Permanent Residence or Adjust Status, 
Form I-485, from an asylee under paragraph (b)(1)(i)(U) of this 
section;
    (vii) Application To Adjust Status under Section 245(i) of the Act, 
Supplement A to Form I-485, from an unmarried child less than 17 years 
of age, or when the applicant is the spouse, or the unmarried child 
less than 21 years of age of a legalized foreign national and who is 
qualified for and has applied for voluntary departure under the family 
unity program from an asylee under paragraph (b)(1)(i)(V) of this 
section; or
    (viii) Petition for Amerasian, Widow(er), or Special Immigrant, 
Form I-360, meeting the requirements of paragraphs (b)(1)(i)(T)(1), 
(2), (3) or (4) of this section.
    (D) USCIS Immigrant Fee. For DHS domestic processing and issuance 
of required documents after an immigrant visa is issued by the U.S. 
Department of State: $220.
    (E) Request for a search of indices to historical records to be 
used in genealogical research, Form G-1041: $65. The search request fee 
is not refundable.
    (F) Request for a copy of historical records to be used in 
genealogical research, Form G-1041A: $65. USCIS will refund the records 
request fee only when it is unable to locate the file previously 
identified in response to the index search request.
    (G) Application to Replace Permanent Resident Card, Form I-90. For 
filing an application for a Permanent Resident Card, Form I-551, to 
replace an obsolete card or to replace one lost, mutilated, or 
destroyed, or for a change in name: $455.
    (H) Application for Replacement/Initial Nonimmigrant Arrival-
Departure Document, Form I-102. For filing a petition for an 
application for Arrival/Departure Record Form I-94, or Crewman's 
Landing Permit Form I-95, to replace one lost, mutilated, or destroyed: 
$445.
    (I) Petition for a Nonimmigrant Worker, Form I-129. For filing a 
petition for a nonimmigrant worker: $460.
    (J) Petition for Nonimmigrant Worker in CNMI, Form I-129CW. For an 
employer to petition on behalf of one or more beneficiaries: $460 plus 
a supplemental CNMI education funding fee of $150 per beneficiary per 
year. The CNMI education funding fee cannot be waived.
    (K) Petition for Alien fiancé(e), Form I-129F. For filing a 
petition to classify a nonimmigrant as a fiancée or 
fiancé under section 214(d) of the Act: $535; there is no fee 
for a K-3 spouse as designated in 8 CFR 214.1(a)(2) who is the 
beneficiary of an immigrant petition filed by a United States citizen 
on a Petition for Alien Relative, Form I-130.
    (L) Petition for Alien Relative, Form I-130. For filing a petition 
to classify status of a foreign national relative for issuance of an 
immigrant visa under section 204(a) of the Act: $535.
    (M) Application for Travel Document, Form I-131. For filing an 
application for travel document:
    (1) $135 for a Refugee Travel Document for an individual age 16 or 
older.
    (2) $105 for a Refugee Travel Document for a child under the age of 
16.
    (3) $575 for advance parole and any other travel document.
    (4) No fee if filed in conjunction with a pending or concurrently 
filed Form I-485 with fee that was filed on or after July 30, 2007.
    (N) Immigrant Petition for Alien Worker, Form I-140. For filing a 
petition to classify preference status of an alien on the basis of 
profession or occupation under section 204(a) of the Act: $700.
    (O) Application for Advance Permission to Return to Unrelinquished 
Domicile, Form I-191. For filing an application for discretionary 
relief under section 212(c) of the Act: $930.
    (P) Application for Advance Permission to Enter as a Nonimmigrant, 
Form I-192. For filing an application for discretionary relief under 
section 212(d)(3) of the Act, except in an emergency case or where the 
approval of the application is in the interest of

[[Page 73330]]

the United States Government: $930. If filed with and processed by CBP: 
$585.
    (Q) Application for Waiver for Passport and/or Visa, Form I-193. 
For filing an application for waiver of passport and/or visa: $585.
    (R) Application for Permission to Reapply for Admission into the 
United States After Deportation or Removal, Form I-212. For filing an 
application for permission to reapply for an excluded, deported or 
removed alien, an alien who has fallen into distress, an alien who has 
been removed as an alien enemy, or an alien who has been removed at 
government expense instead of deportation: $930.
    (S) Notice of Appeal or Motion, Form I-290B. For appealing a 
decision under the immigration laws in any type of proceeding over 
which the Board of Immigration Appeals does not have appellate 
jurisdiction: $675. The fee will be the same for appeal of a denial of 
a benefit request with one or multiple beneficiaries. There is no fee 
for an appeal or motion associated with a denial of a petition for a 
special immigrant visa filed by or on behalf of an individual seeking 
special immigrant visa or status as an Iraqi or Afghan national who was 
employed by or on behalf of the U.S. Government in Iraq or Afghanistan.
    (T) Petition for Amerasian, Widow(er), or Special Immigrant, Form 
I-360. For filing a petition for an Amerasian, Widow(er), or Special 
Immigrant: $435. The following requests are exempt from this fee:
    (1) A petition seeking classification as an Amerasian;
    (2) A self-petition for immigrant status as a battered or abused 
spouse, parent, or child of a U.S. citizen or lawful permanent 
resident; or
    (3) A petition for special immigrant juvenile status; or
    (4) A petition seeking special immigrant visa or status an Iraqi or 
Afghan national who was employed by or on behalf of the U.S. Government 
in Iraq or Afghanistan.
    (U) Application to Register Permanent Residence or Adjust Status, 
Form I-485. For filing an application for permanent resident status or 
creation of a record of lawful permanent residence:
    (1) $1,140 for an applicant 14 years of age or older; or
    (2) $750 for an applicant under the age of 14 years who submits the 
application concurrently with the Form I-485 of a parent.
    (3) There is no fee if an applicant is filing as a refugee under 
section 209(a) of the Act.
    (V) Application to Adjust Status under Section 245(i) of the Act, 
Supplement A to Form I-485. Supplement to Form I-485 for persons 
seeking to adjust status under the provisions of section 245(i) of the 
Act: $1,000. There is no fee when the applicant is an unmarried child 
less than 17 years of age, when the applicant is the spouse, or the 
unmarried child less than 21 years of age of an individual with lawful 
immigration status and who is qualified for and has applied for 
voluntary departure under the family unity program.
    (W) Immigrant Petition by Alien Entrepreneur, Form I-526. For 
filing a petition for an alien entrepreneur: $3,675.
    (X) Application To Extend/Change Nonimmigrant Status, Form I-539. 
For filing an application to extend or change nonimmigrant status: 
$370.
    (Y) Petition to Classify Orphan as an Immediate Relative, Form I-
600. For filing a petition to classify an orphan as an immediate 
relative for issuance of an immigrant visa under section 204(a) of the 
Act. Only one fee is required when more than one petition is submitted 
by the same petitioner on behalf of orphans who are brothers or 
sisters: $775.
    (Z) Application for Advance Processing of Orphan Petition, Form I-
600A. For filing an application for advance processing of orphan 
petition. (When more than one petition is submitted by the same 
petitioner on behalf of orphans who are brothers or sisters, only one 
fee will be required.): $775. No fee is charged if Form I-600 has not 
yet been submitted in connection with an approved Form I-600A subject 
to the following conditions:
    (1) The applicant requests an extension of the approval in writing 
and the request is received by USCIS before the expiration date of 
approval; and
    (2) The applicant's home study is updated and USCIS determines that 
proper care will be provided to an adopted orphan.
    (3) A no fee extension is limited to one occasion. If the Form I-
600A approval extension expires before submission of an associated Form 
I-600, then a complete application and fee must be submitted for any 
subsequent application.
    (AA) Application for Waiver of Ground of Inadmissibility, Form I-
601. For filing an application for waiver of grounds of 
inadmissibility: $930.
    (BB) Application for Provisional Unlawful Presence Waiver, Form I-
601A. For filing an application for provisional unlawful presence 
waiver: $630.
    (CC) Application for Waiver of the Foreign Residence Requirement 
(under Section 212(e) of the Immigration and Nationality Act, as 
Amended), Form I-612. For filing an application for waiver of the 
foreign-residence requirement under section 212(e) of the Act: $930.
    (DD) Application for Status as a Temporary Resident under Section 
245A of the Immigration and Nationality Act, Form I-687. For filing an 
application for status as a temporary resident under section 245A(a) of 
the Act: $1,130.
    (EE) Application for Waiver of Grounds of Inadmissibility under 
Sections 245A or 210 of the Immigration and Nationality Act, Form I-
690. For filing an application for waiver of a ground of 
inadmissibility under section 212(a) of the Act as amended, in 
conjunction with the application under sections 210 or 245A of the Act, 
or a petition under section 210A of the Act: $715.
    (FF) Notice of Appeal of Decision under Sections 245A or 210 of the 
Immigration and Nationality Act (or a petition under section 210A of 
the Act), Form I-694. For appealing the denial of an application under 
sections 210 or 245A of the Act, or a petition under section 210A of 
the Act: $890.
    (GG) Application to Adjust Status from Temporary to Permanent 
Resident (Under Section 245A of Pub. L. 99-603), Form I-698. For filing 
an application to adjust status from temporary to permanent resident 
(under section 245A of Pub. L. 99-603): $1,670. The adjustment date is 
the date of filing of the application for permanent residence or the 
applicant's eligibility date, whichever is later.
    (HH) Petition to Remove Conditions on Residence, Form I-751. For 
filing a petition to remove the conditions on residence based on 
marriage: $595.
    (II) Application for Employment Authorization, Form I-765. $410. No 
fee if filed in conjunction with a pending or concurrently filed Form 
I-485 with fee that was filed on or after July 30, 2007.
    (JJ) Petition to Classify Convention Adoptee as an Immediate 
Relative, Form I-800.
    (1) There is no fee for the first Form I-800 filed for a child on 
the basis of an approved Application for Determination of Suitability 
to Adopt a Child from a Convention Country, Form I-800A, during the 
approval period.
    (2) If more than one Form I-800 is filed during the approval period 
for different children, the fee is $775 for the second and each 
subsequent petition submitted.
    (3) If the children are already siblings before the proposed 
adoption, however, only one filing fee of $775 is required,

[[Page 73331]]

regardless of the sequence of submission of the immigration benefit.
    (KK) Application for Determination of Suitability to Adopt a Child 
from a Convention Country, Form I-800A. For filing an application for 
determination of suitability to adopt a child from a convention 
country: $775.
    (LL) Request for Action on Approved Application for Determination 
of Suitability to Adopt a Child from a Convention Country, Form I-800A, 
Supplement 3. This filing fee is not charged if Form I-800 has not been 
filed based on the approval of the Form I- 800A, and Form I-800A 
Supplement 3 is filed in order to obtain a first extension of the 
approval of the Form I-800A: $385.
    (MM) Application for Family Unity Benefits, Form I-817. For filing 
an application for voluntary departure under the Family Unity Program: 
$600.
    (NN) Application for Temporary Protected Status, Form I-821. For 
first time applicants: $50. There is no fee for re-registration.
    (OO) Application for Action on an Approved Application or Petition, 
Form I-824. For filing for action on an approved application or 
petition: $465.
    (PP) Petition by Entrepreneur to Remove Conditions, Form I-829. For 
filing a petition by entrepreneur to remove conditions: $3,750.
    (QQ) Application for Suspension of Deportation or Special Rule 
Cancellation of Removal (Pursuant to Section 203 of Pub. L. 105-100), 
Form I-881:
    (1) $285 for adjudication by DHS, except that the maximum amount 
payable by family members (related as husband, wife, unmarried child 
under 21, unmarried son, or unmarried daughter) who submit applications 
at the same time will be $570.
    (2) $165 for adjudication by the Immigration Court (a single fee of 
$165 will be charged whenever applications are filed by two or more 
foreign nationals in the same proceedings).
    (3) The $165 fee is not required if the Form I-881 is referred to 
the Immigration Court by DHS.
    (RR) Application for Authorization to Issue Certification for 
Health Care Workers, Form I-905: $230.
    (SS) Request for Premium Processing Service, Form I-907. $1,225. 
The Request for Premium Processing Service fee:
    (1) Must be paid in addition to, and in a separate remittance from, 
other filing fees.
    (2) May be adjusted annually by notice in the Federal Register 
based on inflation according to the Consumer Price Index (CPI).
    (3) May not be waived.
    (TT) Application for Civil Surgeon Designation, Form I-910. For 
filing an application for civil surgeon designation: $785. There is 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 and veterans of the Armed Forces and their dependents at a 
military, Department of Veterans Affairs, or U.S. Government facility 
in the United States.
    (UU) Application for T Nonimmigrant Status, Form I-914. No fee.
    (VV) Application for U Nonimmigrant Status, Form I-918. No fee.
    (WW) Application for Regional Center Designation under the 
Immigrant Investor Program, Form I-924. For filing an application for 
regional center designation under the Immigrant Investor Program: 
$17,795.
    (XX) Annual Certification of Regional Center, Form I-924A. To 
provide updated information and certify that an Immigrant Investor 
Regional Center has maintained their eligibility: $3,035.
    (YY) Petition for Qualifying Family Member of a U-1 Nonimmigrant, 
Form I-929. For U-1 principal applicant to submit for each qualifying 
family member who plans to seek an immigrant visa or adjustment of U 
status: $230.
    (ZZ) Application to File Declaration of Intention, Form N-300. For 
filing an application for declaration of intention to become a U.S. 
citizen: $270.
    (AAA) Request for a Hearing on a Decision in Naturalization 
Proceedings (Under section 336 of the Act), Form N-336. For filing a 
request for hearing on a decision in naturalization proceedings under 
section 336 of the Act: $700. There is no fee if filed on or after 
October 1, 2004, by an applicant who has filed an Application for 
Naturalization under sections 328 or 329 of the Act with respect to 
military service and whose application has been denied.
    (BBB) Application for Naturalization, Form N-400. For filing an 
application for naturalization: $640. Except:
    (1) The fee for an applicant whose documented income is greater 
than 150 percent and not more than 200 percent of the Federal poverty 
level is $320.
    (2) No fee is charged an applicant who meets the requirements of 
sections 328 or 329 of the Act with respect to military service.
    (CCC) Application to Preserve Residence for Naturalization 
Purposes, Form N-470. For filing an application for benefits under 
section 316(b) or 317 of the Act: $355.
    (DDD) Application for Replacement Naturalization/Citizenship 
Document, Form N-565. For filing an application for a certificate of 
naturalization or declaration of intention in place of a certificate or 
declaration alleged to have been lost, mutilated, or destroyed; for a 
certificate of citizenship in a changed name under section 343(c) of 
the Act; or for a special certificate of naturalization to obtain 
recognition as a citizen of the United States by a foreign state under 
section 343(b) of the Act: $555. There is no fee when this application 
is submitted under 8 CFR 338.5(a) or 343a.1 to request correction of a 
certificate that contains an error.
    (EEE) Application for Certificate of Citizenship, Form N-600. For 
filing an application for a certificate of citizenship under section 
309(c) or section 341 of the Act: $1,170. There is no fee for any 
application filed by a member or veteran of any branch of the United 
States Armed Forces.
    (FFF) Application for Citizenship and Issuance of Certificate under 
section 322 of the Act, Form N-600K. For filing an application for 
citizenship and issuance of certificate under section 322 of the Act: 
$1,170.
    (GGG) American Competitiveness and Workforce Improvement Act 
(ACWIA) fee. For filing certain H-1B petitions as described in 8 CFR 
214.2(h)(19) and USCIS form instructions: $1,500 or $750.
    (HHH) Fraud detection and prevention fee. For filing certain H-1B 
and L petitions, and $150 for H-2B petitions as described in 8 CFR 
214.2(h)(19): $500.
    (III) 9-11 Response and Biometric Entry-Exit Fee for H-1B Visa. For 
certain petitioners who employ 50 or more employees in the United 
States if more than 50 percent of the petitioner's employees are in H-
1B, L-1A or L-1B nonimmigrant status: $4,000. Collection of this fee is 
scheduled to end on September 30, 2025.
    (JJJ) 9-11 Response and Biometric Entry-Exit Fee for L-1 Visa. For 
certain petitioners who employ 50 or more employees in the United 
States, if more than 50 percent of the petitioner's employees are in H-
1B, L-1A or L-1B nonimmigrant status: $4,500. Collection of this fee is 
scheduled to end on September 30, 2025.
* * * * *

0
5. Section 103.16 is amended by revising the first sentence of 
paragraph (a) to read as follows:


Sec.  103.16  Collection, use and storage of biometric information.

    (a) Use of biometric information. An individual may be required to 
submit biometric information by law, regulation, Federal Register 
notice or

[[Page 73332]]

the form instructions applicable to the request type or if required in 
accordance with 8 CFR 103.2(b)(9). * * *
* * * * *

0
6. Section 103.17 is amended by revising paragraph (b) to read as 
follows:


Sec.  103.17   Biometric services fee.

* * * * *
    (b) Non-payment. If a benefit request is received by DHS without 
the correct biometric services fee as provided in the form 
instructions, DHS will reject the benefit request.

PART 204--IMMIGRANT PETITIONS

0
7. The authority citation for part 204 continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1184, 
1186a, 1255, 1641; 8 CFR part 2.


0
8. Section 204.6 is amended by revising paragraph (m)(6) to read as 
follows:


Sec.  204.6  Petitions for employment creation aliens.

* * * * *
    (m) * * *
    (6) Continued participation requirements for regional centers. (i) 
Regional centers approved for participation in the program must:
    (A) Continue to meet the requirements of section 610(a) of the 
Appropriations Act.
    (B) Provide USCIS with updated information annually, and/or as 
otherwise requested by USCIS, to demonstrate that the regional center 
is continuing to promote economic growth, including increased export 
sales, improved regional productivity, job creation, and increased 
domestic capital investment in the approved geographic area, using a 
form designated for this purpose; and
    (C) Pay the fee provided by 8 CFR 103.7(b)(1)(i)(XX).
    (ii) USCIS will issue a notice of intent to terminate the 
designation of a regional center in the program if:
    (A) A regional center fails to submit the information required in 
paragraph (m)(6)(i)(B) of this section, or pay the associated fee; or
    (B) USCIS determines that the regional center no longer serves the 
purpose of promoting economic growth, including increased export sales, 
improved regional productivity, job creation, and increased domestic 
capital investment.
    (iii) A notice of intent to terminate the designation of a regional 
center will be sent to the regional center and set forth the reasons 
for termination.
    (iv) The regional center will be provided 30 days from receipt of 
the notice of intent to terminate to rebut the ground or grounds stated 
in the notice of intent to terminate.
    (v) USCIS will notify the regional center of the final decision. If 
USCIS determines that the regional center's participation in the 
program should be terminated, USCIS will state the reasons for 
termination. The regional center may appeal the final termination 
decision in accordance with 8 CFR 103.3.
    (vi) A regional center may elect to withdraw from the program and 
request a termination of the regional center designation. The regional 
center must notify USCIS of such election in the form of a letter or as 
otherwise requested by USCIS. USCIS will notify the regional center of 
its decision regarding the withdrawal request in writing.
* * * * *

PART 205--REVOCATION OF APPROVAL OF PETITIONS

0
9. The authority citation for part 205 continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1155, 1182, 
and 1186a.


0
10. Section 205.1 is amended by removing and reserving paragraph 
(a)(2).


Sec.  205.1   Automatic revocation.

    (a) * * *
    (2) [Reserved]
* * * * *

Jeh Charles Johnson,
Secretary.
[FR Doc. 2016-25328 Filed 10-21-16; 8:45 am]
BILLING CODE 4410-10-P