Registration Fee Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap Subject Aliens, 46460-46469 [2019-18962]

Download as PDF 46460 Proposed Rules Federal Register Vol. 84, No. 171 Wednesday, September 4, 2019 This section of the FEDERAL REGISTER contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final rules. DEPARTMENT OF HOMELAND SECURITY 8 CFR Part 103 [CIS No. 2645–19; DHS Docket No. USCIS– 2019–0006] RIN 1615–AC36 Table of Contents Registration Fee Requirement for Petitioners Seeking To File H–1B Petitions on Behalf of Cap Subject Aliens U.S. Citizenship and Immigration Services, DHS. ACTION: Notice of proposed rulemaking. AGENCY: The Department of Homeland Security (DHS) is proposing to amend its regulations to require petitioners seeking to file H–1B cap-subject petitions to pay a $10 fee for each registration they submit to U.S. Citizenship and Immigration Services (USCIS) for the H–1B cap selection process. SUMMARY: Written comments must be submitted on this rule on or before October 4, 2019. Comments on the Paperwork Reduction Act section of this rule (the information collections discussed therein) must be received on or before November 4, 2019. ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS– 2019–0006, by one of the following methods: • Federal eRulemaking Portal: http:// www.regulations.gov. Follow this site’s instructions for submitting comments. • Mail: Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW, Mailstop #2140, Washington, DC 20529–2140. To ensure proper handling, please reference DHS Docket No. USCIS–2019– 0006 in your correspondence. Mail must be postmarked by the comment submission deadline. Please note that we will not accept any comments that jbell on DSK3GLQ082PROD with PROPOSALS DATES: VerDate Sep<11>2014 16:53 Sep 03, 2019 are hand delivered or couriered. In addition, we will not accept any comments that are on removable media (e.g. thumb drives, CDs, etc.). All comments that are mailed must be addressed as specifically written above. FOR FURTHER INFORMATION CONTACT: Brian J. Hunt, Acting Chief, Business & Foreign Workers Division, Office of Policy & Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW, Washington, DC 20529– 2140, telephone (202) 272–8377. SUPPLEMENTARY INFORMATION: Jkt 247001 I. Public Participation II. Background III. Legal Authority IV. Proposed Fee V. Statutory and Regulatory Reviews A. Executive Orders 12866 and 13563 (Regulatory Planning and Review) B. Regulatory Flexibility Act C. Other Regulatory Requirements D. Expedited Comment Period E. Paperwork Reduction Act I. Public Participation DHS invites all interested parties to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this proposed rule. Comments providing the most assistance to DHS will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that supports the recommended change. Instructions: All submissions should include the agency name and DHS Docket No. USCIS–2019–0006 for this rulemaking. Providing comments is entirely voluntary. Regardless of how comments are submitted to DHS, all submissions will be posted, without change, to the Federal eRulemaking Portal at http://www.regulations.gov and will include any personal information provided by commenters. Because the information submitted will be publicly available, commenters should consider limiting the amount of personal information provided in each submission. 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. For additional information, please read the Privacy Act notice available through the PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 link in the footer of http:// www.regulations.gov. Docket: For access to the docket, go to http://www.regulations.gov and enter this rulemaking’s eDocket number: USCIS–2019–0006. II. Background DHS is proposing to amend its regulations to charge potential petitioners a fee for each registration submitted for the H–1B cap selection process. Proposed 8 CFR 103.7(b)(1)(i)(NNN). On January 31, 2019, DHS published a final rule requiring petitioners seeking to file H– 1B cap-subject petitions, including those eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period, unless the requirement is suspended (‘‘H–1B registration final rule’’).1 The H–1B registration final rule amended DHS regulations to codify the new registration requirement. See 8 CFR 214.2(h)(8)(iii)(A)(1). USCIS stated in the H–1B registration final rule that it was suspending the registration requirement for the fiscal year 2020 cap season to complete required user testing of the new H–1B registration system and otherwise ensure the system and process work correctly. Once USCIS implements the system and requires registration, USCIS will not consider an H–1B cap-subject petition to be properly filed unless it is based on a valid registration selection for the applicable fiscal year. See 8 CFR 214.2(h)(8)(iii)(A)(1) and (h)(8)(iii)(D). USCIS will reject or deny H–1B capsubject petitions that are not properly filed. 8 CFR 214.2(h)(8)(iii)(D). III. Legal Authority The Immigration and Nationality Act (INA) authorizes DHS to establish and collect fees for adjudication and naturalization services 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.’’ INA section 286(m), 8 U.S.C. 1356(m). Through the collection of fees established under that authority, USCIS is primarily funded by immigration and naturalization fees charged to applicants, petitioners, and other requestors. See INA sections 1 See E:\FR\FM\04SEP1.SGM 84 FR 888 (Jan. 31, 2019). 04SEP1 Federal Register / Vol. 84, No. 171 / Wednesday, September 4, 2019 / Proposed Rules 286(m) and (n), 8 U.S.C. 1356(m) and (n); 8 CFR 103.7(b)(1)(i) (USCIS fees). Fees collected from individuals and entities filing immigration benefit requests are deposited into the Immigration Examinations Fee Account (IEFA) and used to fund the cost of processing immigration benefit requests.2 Consistent with that authority and USCIS’s reliance on fees for its funding, DHS is proposing a fee for submitting H–1B registrations. IV. Proposed Fee DHS is proposing a $10 fee for each registration submitted to register for the H–1B cap selection process. Proposed 8 CFR 103.7(b)(1)(i)(NNN). DHS regulations require petitioners seeking to file H–1B petitions subject to the regular cap, including those eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period, unless the registration requirement is suspended. See 8 CFR 214.2(h)(8)(iii)(A)(1). When registration is required, an H–1B cap-subject petition must be based on a selected registration for the named beneficiary for the applicable fiscal year to be considered properly filed. 8 CFR 214.2(h)(8)(iii)(A)(1) and (h)(8)(iii)(D). Because USCIS operations are funded by fees collected for adjudication and naturalization services, and USCIS must expend resources to implement and maintain the registration system, DHS is proposing a fee for submitting H–1B registrations to recover those costs. Generally, DHS sets USCIS fees based on the revenue needed to recover the full cost of all USCIS operations, absent any known Congressional appropriations. See generally 81 FR 73292 (Oct. 24, 2016). DHS establishes IEFA fees by using a USCIS activitybased cost model for assigning all projected IEFA costs to specific benefit requests in a manner reasonably consistent with OMB Circular A–25. See OMB Circular A–25, User Charges (Revised), para. 6, 58 FR 38142 (July 15, 1993). USCIS costs that are not attributed to a specific adjudication and naturalization service are distributed among all fees.3 DHS then makes additional adjustments to effectuate jbell on DSK3GLQ082PROD with PROPOSALS 2 See 81 FR 26904, 26905 (May 4, 2016). USCIS model for IEFA fee calculations distributes indirect costs. Costs that are not assigned to specific fee-paying immigration benefit requests are reallocated to other fee-paying immigration benefit requests outside the model. For example, the model determines the direct and indirect costs for refugee workload. The costs associated with services provided for free, such as the refugee workload, are reallocated outside the model to fee-paying immigration benefit requests. 3 The VerDate Sep<11>2014 16:53 Sep 03, 2019 Jkt 247001 specific policy objectives.4 However, when DHS creates new USCIS programs through separate rulemakings that require adjudication resources, a fee is necessary to recover the costs of those resources even where the exact costs are difficult to estimate until the program is operational. For example, DHS created the Application for Provisional Unlawful Presence Waiver, Form I– 601A, and established the filing fee for the Form I–601A as the same fee as USCIS Form I–601, Application for Waiver of Ground of Inadmissibility, because the adjudication time required for both forms was thought to be the same. See, e.g., 77 FR 19902–01, at 19910 (Apr. 2, 2012). The actual burden of the Form I–601A adjudication was unknown because the program had not been implemented. Similarly, when DHS established the fee for the Application for Entrepreneur Parole, Form I–941, to recover the anticipated processing costs to USCIS, the fee was based on burden estimates and workload forecast provided by USCIS’ subject matter experts. See, 81 FR 60130–68, at 60159 fn. 93 (Aug. 31, 2016) (providing that the fee would be adjusted in the future based on the actual average completion rate). DHS is also not establishing the H–1B registration fee using the same method that it uses to establish the overall USCIS fee schedule because, as with any totally new program, the costs of the registration program are difficult to project. Infrastructure investments generally, including information technology platforms, usually serve multiple programs and functions across all business needs for USCIS. Those types of investments are not tracked as costs of a specific benefit request. In this case, the H–1B Registration system will not be a totally separate system and will be established within a platform that supports other USCIS functions. Nevertheless, as explained below, DHS knows that the registration program will require USCIS to incur certain costs and burdens for iterative development, correcting problems, handling help desk calls, and adding or maintaining infrastructure. Therefore, DHS is authorized by INA section 286(m), 8 U.S.C. 1356(m), to recover these costs through a fee. The H–1B registration final rule estimated that the H–1B registration process will be an overall cost savings 4 DHS may reasonably adjust fees based on value judgments and public policy reasons where a rational basis for the methodology is propounded in the rulemaking. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009); Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983). PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 46461 to the government. DHS estimated that H–1B registration will save an estimated $1.6 million annually when it is required.5 USCIS will, however, have to expend a total of about $1.5 million on the initial development of the registration website. This cost to the government is considered a one-time cost. At the time, DHS recognized that there may be a need to recover the costs of processing registrations as well as recover costs of building, operating, and maintaining the registration system or costs from refining the registration system in the future. See 84 FR 888, 903. DHS was not able to estimate these additional maintenance costs. Even if USCIS were not to collect the fee proposed in this rule, it would anticipate a net savings from the removal of costs associated with the management of the large volume of paper filings. USCIS continues to anticipate those cost savings. Regardless of the net benefits provided by the registration system over the current process, USCIS will still incur costs directly from operating the registration system. USCIS expects this $10 fee to help offset the startup costs, such as building the information technology platform. USCIS will not achieve the expected savings from the registration requirement during the implementation period, but USCIS will realize those savings in later years. The H–1B registration final rule also estimated that the H–1B registration process will result in an average undiscounted cost savings for all unselected petitioners ranging from $42.7 million to $66.8 million annually, depending on who petitioners use to submit the registration.6 In contrast, the H–1B registration final rule determined there would not be cost savings for petitioners whose registrations were selected; rather these petitioners would experience new opportunity costs ranging from between $6.2 million to $10.3 million annually due to the registration requirement.7 In this proposed rule’s Executive Order (E.O.) 12866 analysis, DHS estimates that the proposed $10 registration fee requirement would impose annual costs to registrants ranging from $2.3 million to $2.6 million, depending on who petitioners use to submit the 5 See 84 FR 888, 890. petitioners are those who submitted registrations but whose petitions were not selected toward the regular cap or toward the advanced degree exemption. See 84 FR at 940. Note: Following publication of the H–1B registration final rule, USCIS recognized a calculation error. The cost figures referenced in the paragraph above are the corrected cost savings. 7 See 84 FR at 938. 6 Unselected E:\FR\FM\04SEP1.SGM 04SEP1 46462 Federal Register / Vol. 84, No. 171 / Wednesday, September 4, 2019 / Proposed Rules jbell on DSK3GLQ082PROD with PROPOSALS registration. The total costs to petitioners for each registration would range from $15.63 to $30.80 for a registration, depending on who the petitioner uses to submit the registration. Therefore, DHS acknowledges that the proposed $10 fee for H–1B registrations would result in a marginal increase in costs for selected petitioners, and that the costs for such petitioners estimated in the H–1B registration final rule would now range from $8.5 million to $12.9 million,8 depending on who petitioners use to submit the registration. Likewise, the costs savings for unselected petitioners estimated in the H–1B registration final rule would decrease and now range from $40.4 million to $64.2 million.9 However, the H–1B registration process, even with the costs associated with the proposed registration fee requirement,10 would still result in net estimated cost savings for all unselected petitioners. Again, there are expected to be both initial start-up costs and recurring costs associated with the registration process. DHS intends for the registration system to be ready prior to the initial implementation of the H–1B registration process, which may be as soon as the H– 1B cap filing season for FY 2021.11 These initial costs will be funded by IEFA revenue from other fees. These initial costs will be sunk costs that will not reoccur annually.12 In addition to the estimated costs in the H–1B registration final rule, there 8 Calculations: $6.2 million (cost to selected petitioner, lower bound) + $2.3 million (total costs of added registration fee, lower bound) = $8.5 million (cost for selected petitioner with added $10 registration fee, lower bound). $10.3 million (cost to selected petitioner, upper bound) + $2.6 million (total costs of added registration fee, upper bound) = $12.9 million (cost for selected petitioner with added $10 registration fee, upper bound). 9 Calculations: $42.7 million (savings to unselected petitioner, lower bound)¥$2.3 million (total costs of added registration fee, lower bound) = $40.4 million (savings for unselected petitioner with added $10 registration fee, lower bound). $66.8 million (savings to unselected petitioner, upper bound)¥$2.6 million (total costs of added registration fee, upper bound) = $64.2 million (savings for unselected petitioner with added $10 registration fee, upper bound). 10 As explained later in the preamble, based on 2016 filings, every unique petitioning employer files requests for an average of slightly less than 5 H–1B cap-subject workers. The average petitioning employer therefore would incur fee costs of approximately $50 as a result of this proposed rule. 11 In the H–1B Registration final rule, DHS indicated that it is suspending the H–1B registration process for FY 2020, and indicated that it will publish a notice in the Federal Register in advance of the cap season in which it will first implement the H–1B registration process. 84 FR at 889. 12 In the H–1B Registration final rule, DHS indicated that USCIS will have to expend a total of about $1.5 million in the initial development of the registration website. This cost to the government is considered a one-time cost. See 84 FR 888. VerDate Sep<11>2014 16:53 Sep 03, 2019 Jkt 247001 would be recurring costs every year, such as information technology purchases, maintenance, and administrative costs. Administrative costs will include costs to implement the requirement that USCIS select a sufficient number of registrations, based on USCIS projections, for beneficiaries on whose behalf petitions will be filed under the H–1B regular cap or those who may be eligible for the advanced degree exemption from the submitted registrations. The selection process also includes administrative costs associated with monitoring the system for potential fraud and abuse (e.g. monitoring the system to determine if employers are submitting many registrations but filing petitions based on selected registrations at a significantly lower rate, which could reflect gaming of the system to unfairly improve their odds of being selected). The selection processes for the regular cap and the advanced degree exemption may occur multiple times in a fiscal year, depending on how many of the selected registrants file petitions.13 The proposed $10 fee would recover these reoccurring costs that were not included in the H–1B registration final rule. USCIS lacks sufficient data to estimate reoccurring costs for such items as associated employee salaries, benefits and training, hardware updates, and software maintenance.14 Therefore, DHS is proposing a $10 fee that would provide revenue to mitigate potential fiscal effects on USCIS.15 DHS estimated 192,918 H–1B cap-subject registrations annually.16 The proposed $10 fee accordingly would generate $1,929,180 in revenue. This registration revenue would avoid funding the process with 13 The H–1B registration final rule recognizes that some selected registrants might not ultimately file petitions. See 84 FR 888, 906. The final rule, therefore, provides that unselected registrations will remain on reserve in the system for the applicable fiscal year. See 8 CFR 214.2(h)(8)(iii)(A)(7). If USCIS determines that it needs to increase the number of registrations projected to meet the H–1B regular cap or advanced degree exemption allocation, and select additional registrations, USCIS would select from among the registrations that are on reserve a sufficient number to meet the revised projection(s) or re-open the registration period if additional registrations are needed to meet the revised projection(s). Id. 14 The H–1B registration process was recently established. See 84 FR 888 (Jan. 31, 2019). While the rule went into effect on April 1, 2019, the implementation of the registration process has been suspended for FY 2020 to allow USCIS to make modifications and fully test the electronic H–1B registration system. 15 Commenters on the proposed rule stated that they were concerned that the system would be flooded by frivolous registrations. See 84 FR 899. Thus, while the purpose of the fee is to recover the costs of the system, the registration fee may have an added benefit of deterring frivolous registrations. 16 See 84 FR at 925. PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 other IEFA fee revenue. While DHS does not know if the proposed $10 fee will fully fund the recurring costs of H–1B registration, we believe that proposing a small fee is better than funding the reoccurring costs with revenue from other fees. The U.S. Government Accountability Office (GAO), an independent, nonpartisan agency that works for Congress, describes equity of federal user fees 17 as a balancing act between two principles: • Beneficiary-pays; and • Ability-to-pay. Under the beneficiary-pays principle, the beneficiaries of a service pay for the cost of providing that service. If the general public benefits from the service, then taxes should pay for it. If a small subset of people benefit, then users should pay a fee for it. See GAO–08– 386SP at pg. 7–12. Under the ability-to-pay principle, those who are more capable of bearing the burden of fees should pay more for the service than those with less ability to pay. IEFA fee exemptions, fee waivers, and reduced fees for low income households adhere to this principle. See generally 8 CFR 103.7(b)(1), (c) (USCIS fees, exemptions and waivers). Applicants, petitioners, and requesters who pay a fee cover the cost of processing requests that are feeexempt, fee-waived, or fee-reduced. DHS believes the proposed $10 registration fee adheres to both of these user fee principles. Because this fee is designed to offset costs occurring with the new H–1B registration process, applying this fee at the point-ofregistration on a per registration basis ensures that the fee is incurred by users specifically benefitting from the use of the registration system—the beneficiary pays principle. DHS also believes that a $10 registration fee adheres to the ability-to-pay-principle because H–1B petitioners have demonstrated an ability and willingness to incur significant filing fees to petition for H–1B nonimmigrant workers. H–1B petitioners currently pay a $460 filing fee per petition. In addition to the filing fee, certain H–1B petitions may have to pay up to $6,000 in statutory fees. DHS does not have the authority to adjust the amount of these statutory fees. USCIS does not keep most of the revenue. CBP receives 50 percent of the $4,000 9–11 Response and Biometric Entry-Exit fee and the remaining 50 percent is deposited into the General Fund of the 17 U.S. Government Accountability Office, Federal User Fees: A Design Guide (May 29, 2008), available from https://www.gao.gov/products/GAO08-386SP, visited Mar. 14, 2019. E:\FR\FM\04SEP1.SGM 04SEP1 Federal Register / Vol. 84, No. 171 / Wednesday, September 4, 2019 / Proposed Rules Treasury. USCIS retains 5 percent of the $1,500 or $750 American Competitiveness and Workforce Improvement Act (ACWIA) fee. The remainder goes to the Department of Labor and the National Science Foundation. USCIS keeps one third of the $500 Fraud Detection and Prevention fee, while the remainder is split between the Department of State and the Department of Labor. These statutory fees are in addition to the current Form I–129 fee of $460 and optional premium processing fee of $1,410.18 Given the significant amount of fees H–1B petitioners already incur, DHS believes that the proposed $10 registration fee is de minimis and consistent with the ability-to-payprinciple. DHS acknowledges that if the proposed $10 fee is more than the cost to administer the registration process, then the fee would not adhere to the beneficiary-pays principle. In that case, the proposed $10 fee would subsidize other IEFA fees. Once the process is in place, USCIS will monitor registration volume and level of effort associated with registration selection. In accordance with the requirements and principles of the Chief Financial Officers Act (CFO Act) of 1990, 31 U.S.C. 901–03 and Office of Management and Budget (OMB) Circular A–25, USCIS conducts biennial reviews of the non-statutory fees deposited into the IEFA and proposes fee adjustments if necessary to ensure full cost recovery. If a registration fee is finalized as proposed, USCIS would evaluate the data on the registration fee during future biennial fee reviews to determine whether a fee adjustment is necessary to ensure full cost recovery. V. Statutory and Regulatory Reviews A. Executive Orders 12866 (Regulatory Planning and Review), and 13563 (Improving Regulation and Regulatory Review) Executive Orders 12866 and 13563 direct agencies to assess the costs, benefits, and transfers of available alternatives, and if regulation is jbell on DSK3GLQ082PROD with PROPOSALS 18 See USCIS, H and L Filing Fees for Form I–129, Petition for a Nonimmigrant Worker, https:// www.uscis.gov/forms/h-and-l-filing-fees-form-i-129petition-nonimmigrant-worker (last updated/ reviewed Feb. 20, 2018). VerDate Sep<11>2014 16:53 Sep 03, 2019 Jkt 247001 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. The Office of Information and Regulatory Affairs (OIRA) has designated this rule a ‘‘significant regulatory action’’—although not an economically significant regulatory action—under section 3(f) of Executive Order 12866. Accordingly, OIRA has reviewed this rule. 1. Summary DHS is proposing to amend its regulations to require a fee for each registration submitted to register for the H–1B cap selection process. DHS is proposing a fee of $10 per registration to recover some of the costs that are associated with implementing and maintaining the H–1B cap registration system. USCIS has suspended the registration requirement for the FY 2020 H–1B cap selection process. DHS recognizes that the registration requirement was established to provide efficiency savings to both USCIS and H– 1B cap-subject petitioners associated with the current paper-based petitioning process. In the H–1B registration final rule, DHS estimated significant cost savings for both USCIS and those H–1B petitioners. DHS stands by that analysis and believes that USCIS would still reap significant efficiency and cost savings when comparing an electronic registration process relative to the current paper filing process. DHS acknowledges that the $10 registration fee would reduce some of the estimated cost savings for unselected H–1B capsubject petitioners as described in the H–1B registration final rule. As discussed in the Regulatory Review section, DHS does not believe that the proposed registration fee would significantly factor into the decisionmaking of potential H–1B petitioners, nor does DHS believe that the proposed fee would be perceived as being costprohibitive by these potential H–1B petitioners. After the registration requirement is implemented and reviewed over the coming years, and if PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 46463 the proposed registration fee is finalized, DHS would consider the costs associated with the system as required during biennial fee reviews and adjust the registration fee accordingly via notice-and-comment rulemaking. 2. Analysis of Costs and Benefits When registration is required, all petitioners seeking to file an H–1B capsubject petition, including those eligible for the advanced degree exemption, must first electronically register with USCIS during a designated registration period. A separate registration must be submitted for each worker on whose behalf a petitioner seeks to file an H–1B cap-subject petition. Only those petitioners whose registrations are selected will be eligible to file an H–1B cap-subject petition during an associated filing period for the applicable fiscal year. Under this proposed rule, each registration would require the $10 proposed registration fee, which would be due and payable at the time of registration submission. A registration would not be considered as properly submitted until the fee is paid.19 In the analysis accompanying the H–1B registration final rule, DHS estimated that 192,918 H–1B cap-subject registrations will be submitted annually based on 5-year historical average Form I–129 petition filings.20 That estimate will form the baseline for the analysis of costs associated with the $10 registration fee being proposed. As DHS acknowledged in the H–1B registration final rule, the use of this historical average to form the baseline estimate does not factor in the possibility that the registration’s lower barrier to entry could result in increasing the number of registrations that USCIS receives.21 To account for this possibility, this analysis will present a range analysis of annual costs up through an escalator of 30 percent increase over the baseline estimate. Table 1 presents the annual, undiscounted, aggregate costs associated with the proposed $10 registration fee using a range of escalations over the baseline estimate of registrations. 19 See 8 CFR 103.2(a)(1) and 8 CFR 214.2(h)(8)(iii)(A)(1). 20 See 84 FR at 925. 21 Id. E:\FR\FM\04SEP1.SGM 04SEP1 46464 Federal Register / Vol. 84, No. 171 / Wednesday, September 4, 2019 / Proposed Rules TABLE 1—UNDISCOUNTED AGGREGATE COST ESTIMATES BY PROJECTED REGISTRATIONS Number of registrations Baseline Baseline Baseline Baseline ....................................................................................................................................................... Plus 10% ....................................................................................................................................... Plus 20% ....................................................................................................................................... Plus 30% ....................................................................................................................................... USCIS is required to review the cost of its operations on a biennial basis and recommend fee adjustments as necessary. USCIS may adjust the filing fees for immigration benefits and services through notice-and-comment rulemaking. DHS used a 5-year period of analysis to account for a potential time lag of the fee review and the actual adjustment that occurs during the rulemaking cycle. Therefore, it is reasonable to conclude that a 5-year period would be a sufficient period for DHS to base the analysis of the estimated impact of this proposed registration fee. In addition to the $10 registration fee, USCIS projects there would be a 7minute additional time burden associated with reading the instructions and completing the electronic fee payment. In the H–1B registration final rule, DHS monetized time burdens based on who is expected to submit the registration: A human resource (HR) specialist; an in-house lawyer; or an outsourced lawyer.22 The relevant wage is currently $32.11 23 per hour for an HR specialist and $69.34 24 per hour for an in-house lawyer. DHS accounts for worker benefits when estimating the opportunity cost of time by calculating a benefits-to-wage multiplier using the Department of Labor, BLS report detailing the average employer costs for employee compensation for all civilian workers in major occupational groups and industries. DHS estimates that the benefits-to-wage multiplier is 1.46 and, therefore, is able to estimate the full opportunity cost per applicant, including employee wages and salaries and the full cost of benefits such as paid leave, insurance, and retirement.25 DHS multiplied the average hourly U.S. wage rate for HR specialists and lawyers by 1.46 to account for the full cost of employee benefits and overhead, for a total of $46.88 26 per hour for an HR specialist and $101.24 27 per hour for an in-house lawyer. DHS recognizes that a firm may choose, but is not required, to outsource the preparation of these petitions and, therefore, has presented two wage rates for lawyers. To determine the full opportunity costs if a firm hired an outsourced lawyer, DHS multiplied the average hourly U.S. wage rate for lawyers by 2.5 for a total of $173.35 28 to approximate an hourly 192,918 212,210 231,502 250,793 Annual cost— undiscounted $1,929,180 2,122,100 2,315,020 2,507,930 billing rate for an outsourced lawyer.29 The monetized equivalent time burden for 7 minutes (0.12 hours) is $5.63,30 $12.15,31 and $20.80 32 for an HR specialist, in-house lawyer, and outsourced lawyer, respectively. Based on a review of historical filings, USCIS determined that approximately 75 percent of H–1B cap-subject petitions are filed by an attorney or accredited representative.33 This analysis will carry that finding forward in estimating the time burden costs for complying with the proposed registration fee requirement. In other words, the analysis of time burden costs presented assumes that 25 percent of the registrations will be completed by an HR specialist or representative, and 75 percent of the registrations will be completed by an attorney, either inhouse or outsourced. Table 2 presents the annual, undiscounted, time burden or opportunity costs associated with paying the registration fee electronically, assuming 7 minutes of time burden, over a range of estimated numbers of registrations and according to who submits the H–1B registration. TABLE 2—ANNUAL TIME BURDEN COST (UNDISCOUNTED) BY PROJECTED REGISTRATIONS & TYPE OF SUBMITTER, ROUNDED Number of registrations Baseline Baseline Baseline Baseline ................................................................................... Plus 10% ................................................................... Plus 20% ................................................................... Plus 30% ................................................................... 22 See 84 FR at 929. of Labor Statistics, U.S. Department of Labor, ‘‘Occupational Employment Statistics, May 2018, Human Resources Specialist’’: https:// www.bls.gov/oes/2018/may/oes131071.htm. Visited April 26, 2019. 24 Bureau of Labor Statistics, U.S. Department of Labor, ‘‘Occupational Employment Statistics, May 2017, Lawyers’’: https://www.bls.gov/oes/2018/ may/oes231011.htm. Visited April 26, 2019. 25 The benefits-to-wage multiplier is calculated as follows: (Total Employee Compensation per hour)/ (Wages and Salaries per hour). See Economic News Release, U.S. Dep’t of Labor, Bureau of Labor Statistics, 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 (September 2018), available at https://www.bls.gov/news.release/ jbell on DSK3GLQ082PROD with PROPOSALS 23 Bureau VerDate Sep<11>2014 16:53 Sep 03, 2019 Jkt 247001 192,918 212,210 231,502 250,793 HR Specialist 34 $271,532 298,686 325,839 352,991 archives/ecec_12142018.pdf (viewed March 8, 2019). The ECEC measures the average cost to employers for wages and salaries and benefits per employee hour worked. 26 Calculation: $32.11 * 1.46 = $46.88 total wage rate for HR specialist. 27 Calculation: $69.34 * 1.46 = $101.24 total wage rate for in-house lawyer. 28 Calculation: $69.34 * 2.5 = $173.35 total wage rate for an outsourced lawyer. 29 See 83 FR at 24914 (May 31, 2018). The DHS analysis in, ‘‘Exercise of Time-Limited Authority To Increase the Fiscal Year 2018 Numerical Limitation for the H–2B Temporary Nonagricultural Worker Program’’ used a multiplier of 2.5 to convert inhouse attorney wages to the cost of outsourced attorney wages. DHS believes the methodology used in the Final Small Entity Impact Analysis remains PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 In-house lawyer 35 $1,757,965 1,933,764 2,109,562 2,285,351 Outsourced lawyer 36 $3,009,521 3,310,476 3,611,431 3,912,371 sound for using 2.5 as a multiplier for outsourced labor wages in this rule. 30 Calculation: $46.88 hourly wage rate for HR specialist * 0.12 hours = $5.63. 31 Calculation: $101.24 hourly wage rate for inhouse lawyer * 0.12 hours = $12.15. 32 Calculation: $173.35 hourly wage rate for outsourced lawyer * 0.12 hours = $20.80. 33 See 84 FR at 925. 34 Calculation: Number of Registrations * 25 percent * $5.63 (figures presented in the table are rounded to the nearest dollar). 35 Calculation: Number of Registrations * 75 percent * $12.15 (figures presented in the table are rounded to the nearest dollar). 36 Calculation: Number of Registrations * 75 percent * $20.80 (figures presented in the table are rounded to the nearest dollar). E:\FR\FM\04SEP1.SGM 04SEP1 46465 Federal Register / Vol. 84, No. 171 / Wednesday, September 4, 2019 / Proposed Rules Note that the cost estimates in Table 2 are overstated because they do not account for the scenario of fewer unique entities submitting registrations for multiple workers. DHS assumes that in those cases, the registration submissions would be done at the same time so the fee payment could be bundled. The DHS analysis in the H–1B registration final rule found that, on average, each employer submitted five petitions.37 Thus, the estimate of undiscounted costs in Table 2, which is based on the assumption of one petitioning employer filing one petition, is likely overstated by approximately 80 percent. Estimates that are more likely to reflect the current business behavior of five petitions per employer, are presented in Table 3. TABLE 3—ANNUAL TIME BURDEN COST (UNDISCOUNTED) BY PROJECTED REGISTRATIONS & TYPE OF SUBMITTER, LESS 80% Number of registrations Baseline Baseline Baseline Baseline ................................................................................... Plus 10% ................................................................... Plus 20% ................................................................... Plus 30% ................................................................... Therefore, the total, undiscounted, aggregate annual costs of both the proposed fee and time burden costs are presented in Table 4. The figures in Table 4 are found by adding the In-house lawyer HR Specialist 192,918 212,210 231,502 250,793 $54,306 59,737 65,168 70,598 proportional costs presented in Table 1 (i.e. assume 25% of registrations are completed by HR specialist and 75 percent of registrations are completed by lawyers either in-house or Outsourced lawyer $351,593 386,753 421,912 457,070 $601,904 662,095 722,286 782,474 outsourced) with the estimated costs for entities submitting registrations in Table 3. TABLE 4—AGGREGATE COST (UNDISCOUNTED) BY PROJECTED REGISTRATIONS & TYPE OF SUBMITTER HR specialist (table 3 + 25% of table 1) Number of registrations Baseline Baseline Baseline Baseline ................................................................................... Plus 10% ................................................................... Plus 20% ................................................................... Plus 30% ................................................................... The lower bound aggregate cost estimate of complying with the proposed registration fee requirement is found by summing the estimated cost of using an HR specialist with the cost estimate of using in-house lawyers to 192,918 212,210 231,502 250,793 In-house lawyer (table 3 + 75% of table 1) $536,601 590,262 643,923 697,581 complete the registration. The upper bound aggregate cost estimate is found by summing the estimated cost of using an HR specialist with the cost estimate of using outsourced lawyers to complete the registration. Table 5 presents the Outsourced lawyer (table 3 + 75% of table 1) $1,798,478 1,978,328 2,158,177 2,338,018 $2,048,789 2,253,670 2,458,551 2,663,422 lower bound and upper bound aggregate cost estimates over the projected number of registrations for a 5-year period, discounted at 3 and 7 percent. TABLE 5—TRANSFER COST ESTIMATES BY PROJECTED REGISTRATIONS OVER 5-YEAR PERIOD, DISCOUNTED AT 3% AND 7% 5-year discounted costs, 3%, ($ millions) Number of registrations Lower bound jbell on DSK3GLQ082PROD with PROPOSALS Baseline Baseline Baseline Baseline ............................................................................... Plus 10% ............................................................... Plus 20% ............................................................... Plus 30% ............................................................... 192,918 212,210 231,502 250,793 5-year discounted costs, 7%, ($ millions) Upper bound $10.7 11.8 12.8 13.9 $11.8 13.0 14.2 15.4 Lower bound $9.6 105.0 11.5 12.4 Upper bound $10.6 11.7 12.7 13.8 As discussed previously, while this proposed fee may not recover the full costs associated with implementing and maintaining the H–1B registration system, it would allow for USCIS to recover some of the costs, thus lessening the fiscal impact to USCIS. DHS does not anticipate this proposed registration fee to represent a significant business expense for those employers that seek to employ cap-subject H–1B workers. The total costs for each registration would range from $15.63 to $30.80 for a registration, depending on who the petitioner uses to submit the registration. Even with this proposed registration fee requirement, as discussed previously in the preamble, the registration process is still anticipated to result in a net benefit 37 See 84 FR at 948 (January 31, 2019) for the FY 2016 cohort of H–1B cap-subject petitions selected. Of the 95,839 petitions selected, there were only 20,046 unique entities that filed those petitions. Calculation: 95,839/20,046 = 4.78. VerDate Sep<11>2014 16:53 Sep 03, 2019 Jkt 247001 PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 E:\FR\FM\04SEP1.SGM 04SEP1 46466 Federal Register / Vol. 84, No. 171 / Wednesday, September 4, 2019 / Proposed Rules relative to the paper-based petition process. This proposed fee may also provide some unquantified benefits to the extent that the fee may deter frivolous registrations. DHS makes no conclusions on the impact that a $10 fee would have on the number of registrations and has no way to estimate such an impact. As stated in the H–1B registration final rule, however, commenters on the H–1B registration proposed rule expressed various concerns about potential ‘‘flooding’’ of the registration system. While there is no way to estimate if a small fee would further deter such acts, beyond the measures identified in the H–1B registration final rule (e.g., the attestation requirement), DHS believes that it is reasonable to conclude that the existence of a $10 fee would reduce the likelihood that frivolous registrations would be submitted to flood or otherwise game the registration system. In any event, such a benefit would only be tangential to the fee’s primary purpose of recovering USCIS costs. B. Regulatory Flexibility Act The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601–612, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104–121 (March 29, 1996), requires Federal agencies to consider the potential impact of regulations on small entities during the development of their rules. The term ‘‘small entities’’ comprises of small businesses, not-forprofit organizations that are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. An ‘‘individual’’ is not defined by the RFA as a small entity and costs to an individual from a rule are not considered for RFA purposes. In addition, the courts have held that the RFA requires an agency to perform a regulatory flexibility analysis of small entity impacts only when a rule directly regulates small entities. Consequently, any indirect impacts from a rule to a small entity are not considered as costs for RFA purposes. This proposed rule would have direct impacts to those entities that petition on behalf of H–1B cap-subject workers. Generally, H–1B petitions are filed by a sponsoring employer; by proxy, once the online registration requirement is implemented, registrations would likewise be submitted by a sponsoring employer or their authorized representative. The employer intending to petition for an H–1B cap-subject worker would incur the registration fee costs of $10 per registration as proposed. Therefore, DHS examines the direct impact of this proposed rule on small entities in the analysis that follows. DHS estimated that approximately 78 percent of selected H–1B petitioners were small entities after conducting an analysis of a statistically significant sample.38 Therefore, DHS believes it is reasonable to carry this finding through and assume that approximately 78 percent, a majority, of H–1B registrations would be submitted by small entities. Thus, for purposes of the RFA, this proposed rule would impact a ‘‘substantial’’ number of small entities. To determine whether the impact of the proposed registration filing fee would be ‘‘significant,’’ DHS must consider the estimated fee impacts of individual petitioning small entities. In the H–1B registration final rule, DHS found that the majority of petitioning employers tended to submit petitions for multiple employees. Based on a review of filings received in 2016, DHS determined that for every one unique petitioning employer, there were an average of 4.78 petitions submitted.39 For purposes of this analysis, DHS is rounding that figure up to form a baseline assumption that for every one petitioning employer, a total of five H– 1B cap-subject workers are requested. Therefore, it is reasonable to conclude that on average each petitioning employer that is a small entity would face a total fee impact of $50, plus a one-time monetized time burden impact ranging from $5.58 to $20.47, as a result of this proposed H–1B registration fee.40 In that same statistically valid sample study, DHS was able to determine the top 10 industries that petitioned for capsubject H–1B workers.41 The industry data, using the North American Industry Classification System (NAICS), is selfreported on USCIS Form I–129, Petition for Nonimmigrant Worker, which petitioning employers use to petition for H–1B workers. Table 6 shows a list of the top 10 NAICS industries that submitted H–1B cap-subject petitions in the sample study, and the corresponding size standard according to the SBA. TABLE 6—TOP 10 NAICS INDUSTRIES SUBMITTING FORM I–129, SMALL ENTITY ANALYSIS RESULTS Rank jbell on DSK3GLQ082PROD with PROPOSALS 1 ............... 2 ............... 3 ............... 4 ............... 5 ............... 6 ............... 7 ............... 8 ............... 9 ............... 10 ............. NAICS U.S. industry title Size standards in millions of dollars Size standards in number of employees Custom Computer Programming Services ............................................................ Computer Systems Design Services .................................................................... All Other Business Support Services .................................................................... Engineering Services ............................................................................................ Software Publishers .............................................................................................. Administrative Management and General Management Consulting Services ..... Semiconductor and Related Device Manufacturing .............................................. Other Management Consulting Services .............................................................. Other Scientific and Technical Consulting Services ............................................. Pharmaceutical Preparation Manufacturing .......................................................... $27.5 27.5 15.0 15.0 38.5 15.0 ........................ 15.0 15.0 ........................ ........................ ........................ ........................ ........................ ........................ ........................ 1,250 ........................ ........................ 1,250 NAICS code 541511 541512 561499 541330 511210 541611 334413 541618 541690 325412 Source: USCIS analysis based on small business size standards. Note: The Small Business Administration (SBA) has developed size standards to carry out the purposes of the Small Business Act and those size standards can be found in 13 CFR, section 121.201. 38 See 84 FR at 948–49. 84 FR at 948, explaining that, for the FY 2016 cohort, 20,046 unique entities filed the 95,839 39 See VerDate Sep<11>2014 16:53 Sep 03, 2019 Jkt 247001 H–1B cap-subject petitions that were selected. Calculation: 95,839/20,046 = 4.78. 40 Calculation: $10 (proposed registration fee) × 5 registrations (one for each H–1B worker being PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 entered into the registration) = $50 total fee impact for employers. 41 See 84 FR at 950. E:\FR\FM\04SEP1.SGM 04SEP1 Federal Register / Vol. 84, No. 171 / Wednesday, September 4, 2019 / Proposed Rules jbell on DSK3GLQ082PROD with PROPOSALS SBA’s monetary size standard is based on the average annual receipts of the business entity. As discussed previously, DHS has determined that the majority of H–1B petitioning employers would be classified as ‘‘small’’ for purposes of the RFA. However, comparing the expected total fee impact of $55.58 on the low-end for every small entity (assuming each entity submits approximately five registrations) results in a negligible cost impact relative to average annual receipts. In fact, for a cost of $55.58, a company would need to have annual receipts of only $5,558 for the cost of the fee to equal 1% of the annual receipts. If a company used an outsourced lawyer to petition for a visa at a cost of $152.35 ($30.47 filing fee plus time burden costs × 5 registrations) the company would need to have annual receipts of only $15,235 for the cost of the fee to equal 1% of the annual receipts. SBA guidance on additional measures to determine whether a rule would have a significant impact suggest comparing the compliance cost to the labor costs.42 In that guidance, SBA states that an impact could be significant if the compliance cost ‘‘exceeds 5 percent of the labor costs of the entities in that sector.’’ 43 In the annual report to Congress on the characteristics of H–1B workers for fiscal year 2017, USCIS determined the median annual compensation for initial employment across all occupations was $75,000.44 Furthermore, the median annual compensation for initial employment across known occupations ranged from a low of $42,000 to a high of $160,000.45 This proposed rule is estimated to result in compliance costs that represent much less than 5 percent of the H–1B labor costs. Based on these findings, DHS certifies that while this proposed rule could impact a substantial number of small entities, the impact that would arise from the proposed $10 registration fee would not result in a significant impact. Therefore, the Secretary certifies that 42 See U.S. Small Business Administration, A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act, The RFA threshold analysis: Can we certify? at Pg. 19, https://www.sba.gov/sites/default/files/advocacy/ How-to-Comply-with-the-RFA-WEB.pdf. Visited Apr. 16, 2019. 43 Id. 44 See U.S. Citizenship and Immigration Services, Characteristics of H–1B Specialty Occupation Workers, Fiscal Year 2017 Annual Report to Congress, at Table 11, https://www.uscis.gov/sites/ default/files/reports-studies/Characteristics-ofSpecialty-Occupation-Workers-H-1B-Fiscal-Year2017.pdf. Visited Apr. 16, 2019. 45 Id. VerDate Sep<11>2014 16:53 Sep 03, 2019 Jkt 247001 this proposal would not cause a significant impact to a substantial number of small entities. C. Other Regulatory Requirements This proposed rule is not a ‘‘major rule’’ as defined by the Congressional Review Act, 5 U.S.C. 804(2), and thus is not subject to a 60-day delay in the rule becoming effective. This action is not subject to the written statement requirements of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104–4). Nor does it require prior consultation with State, local, and tribal government officials as specified by Executive Orders 13132 or 13175. This proposed rule also does not require an Environmental Assessment (EA) or Environmental Impact Statement (EIS). 40 CFR 1507.3(b)(2)(ii) and 1508.4. This action would not affect the quality of the human environment and fits within Categorical Exclusion number A3(d) in Dir. 023–01 Rev. 01, Appendix A, Table 1, for rules that interpret or amend an existing regulation without changing its environmental effect. D. Expedited Comment Period Section 6(a)(1) of E.O. 12866 requires an agency to afford the public a meaningful opportunity to comment on any proposed regulation, which in most cases should include a comment period of not less than 60 days. DHS has found it necessary to provide a 30-day comment period for this proposed rule. USCIS intends for the fee proposed in this rule to be in place before the H–1B registration process is initially implemented, which may be as soon as the H–1B cap filing season for FY 2021.46 The requirements for developing, publishing and responding to comments on a rulemaking will require much of the time that DHS needs to put the fee and registration process in place, and the additional 30days of comment period would put DHS at risk of not having the fee in place before the registration period begins. The population affected by this rule is not vast, and the issues addressed by it are relatively insular. Therefore, DHS has concluded that the need for the certainty in having the fee established or not, justifies a 30-day comment period. As discussed in the following section, as required by 5 CFR 1320.8(d)(1), DHS is providing a 60-day public comment period for the revisions to the approved collection of information that would be required by this rule. DHS will read, consider, draft responses, and revise the 46 USCIS will announce the start of the initial registration period at least 30 calendar days in advance of such date. See 84 FR at 898–99. 8 CFR 214.2(h)(8)(iii)(A)(3). PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 46467 rule as necessary while the additional comments on the registration system and information collections continue to be received. E. Paperwork Reduction Act Under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501–3512, all agencies are required to submit to OMB, for review and approval, any reporting requirements inherent in a rule. DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the Federal Register to obtain comments regarding the proposed edits to the respective information collections. DHS is revising the information collections for two USCIS currently approved OMB control numbers as follows. H–1B Registration Tool DHS and USCIS are revising this information collection to report a change in the estimated annual cost to the Federal government as a result of the proposed rule. Additionally, the information collection instrument has been revised to include language about the proposed fee. Comments are encouraged on the proposed revisions to the information collection instruments and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615–0144 in the body of the letter and the agency name. To avoid duplicate submissions, please use only one of the methods under the ADDRESSES and Public Participation section of this rule to submit comments. Comments on this information collection should address one or more of the following four points: (1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency’s estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, E:\FR\FM\04SEP1.SGM 04SEP1 46468 Federal Register / Vol. 84, No. 171 / Wednesday, September 4, 2019 / Proposed Rules e.g., permitting electronic submission of responses. Overview of information collection: (1) Type of Information Collection: Revision of a Currently Approved Collection. (2) Title of the Form/Collection: H–1B Registration Tool. (3) Agency form number, if any, and the applicable component of the DHS sponsoring the collection: No Agency Form Number; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Business or other forprofit. USCIS uses the data collected on this form to determine which employers will be informed that they may submit a USCIS Form I–129, Petition for a Nonimmigrant Worker, to petition for a beneficiary in the H–1B classification. (5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: The estimated total number of respondents for the information collection H–1B Registration Tool is 192,918 and the estimated hour burden per response is 0.5 hours. Any additional time burden for fee payment processing is captured in the information collection USCIS Electronic Fee Payment Processing (OMB 1615– 0131). (6) An estimate of the total public burden (in hours) associated with the collection: The total estimated annual hour burden associated with this collection is 96,459 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total cost burden for purchases of equipment or services to achieve compliance with the information collection requirements of this rule (not including providing information to or keeping records for the government, or kept as part of customary and usual business or private practices), are $0.47 There are no capital, start-up, operational or maintenance costs to respondents associated with this collection of information. jbell on DSK3GLQ082PROD with PROPOSALS USCIS Electronic Payment Processing DHS is revising this information collection to add an estimated 192,918 new respondents that would be required to utilize it to pay their H–1B Registration fee. Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615–0131 in 47 As stated elsewhere in this rule, the annual transfer cost for registrants associated with the proposed $10 fee is $1,929,180. VerDate Sep<11>2014 16:53 Sep 03, 2019 Jkt 247001 the body of the letter and the agency name. To avoid duplicate submissions, please use only one of the methods under the ADDRESSES and I. Public Participation section of this rule to submit comments. Comments on this information collection should address one or more of the following four points: (1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency’s estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. Overview of information collection: (1) Type of Information Collection: Revision of a Currently Approved Collection. (2) Title of the Form/Collection: USCIS Electronic Payment Processing. (3) Agency form number, if any, and the applicable component of the DHS sponsoring the collection: G–1450; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Business or other forprofit. USCIS allows for credit card payments via Form G–1450 and via the pay.gov online portal. Form G–1450 facilitates credit card payments for paper-filed benefit requests submitted through the USCIS Lockbox. Credit card information is collected on Form G– 1450 to allow USCIS to track payment of the fee necessitated by the respondent’s activity with USCIS, and to reconcile the payment received in the Treasury, Financial Management Service, Federal Financial Management System (FFMS) with the respondent’s file. Credit card payments for electronically filed benefit requests are handled through the pay.gov online portal. USCIS does not receive credit card information for respondents using the pay.gov portal. USCIS only receives confirmation of payment and tracking details to allow matching of the payment with the benefit request filed. H–1B registrations can only be submitted electronically, so all H–1B PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 registration fees will be processed through the pay.gov online portal. (5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: The estimated total number of respondents for the information collection USCIS Electronic Payment Processing, where respondents are individuals or households, is 1,805,284 and the estimated hour burden per response is 0.12 hours; the estimated total number of respondents for the information collection Form G–1450 is 1,017,839 and the estimated hour burden per response is 0.12 hours; the estimated total number of respondents for the information collection USCIS Electronic Payment Processing, where respondents are businesses or other small entities, is 658,548 and the estimated hour burden per response is 0.12 hours. (6) An estimate of the total public burden (in hours) associated with the collection: The total estimated annual hour burden associated with this collection is 417,800.52 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with the collection of information associated with this rulemaking, including purchases of equipment or services to achieve regulatory compliance, providing information to, or keeping records for the government are $0.48 There is no cost to respondents for paying a fee to USCIS. List of Subjects in 8 CFR Part 103 Administrative practice and procedure, Authority delegations (Government agencies), Freedom of information, Immigration, Privacy, Reporting and recordkeeping requirements. Accordingly, DHS is proposing to amend 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, 552a; 8 U.S.C. 1101, 1103, 1304, 1356, 1356b, 1372; 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, 125 Stat 550. 48 As stated elsewhere in this rule, the estimated opportunity cost for registrants to provide the information necessary to pay the proposed fee could range from $215,000 to $789,000 depending on who submits the payment. E:\FR\FM\04SEP1.SGM 04SEP1 Federal Register / Vol. 84, No. 171 / Wednesday, September 4, 2019 / Proposed Rules 2. Section 103.7 is amended by adding paragraph (b)(1)(i)(NNN) to read as follows: ■ § 103.7 Fees. * * * * * (b) * * * (1) * * * (i) * * * (NNN) Registration requirement for petitioners seeking to file H–1B petitions on behalf of cap-subject aliens. For each registration submitted to register for the H–1B cap or advanced degree exemption selection process: $10. This fee will not be refunded if the registration is not selected or is withdrawn. * * * * * Kevin K. McAleenan, Acting Secretary. [FR Doc. 2019–18962 Filed 9–3–19; 8:45 am] BILLING CODE 9111–97–P DEPARTMENT OF ENERGY 10 CFR Part 430 FOR FURTHER INFORMATION CONTACT: [EERE–2018–BT–TP–0004] RIN 1904–AE36 Energy Conservation Program: Test Procedures for Cooking Products Office of Energy Efficiency and Renewable Energy, Department of Energy. ACTION: Notice of public meeting and extension of public comment period. AGENCY: On August 9, 2019, the U.S. Department of Energy (‘‘DOE’’) published in the Federal Register a notice of proposed rulemaking (‘‘NOPR’’) to withdraw the test procedure for conventional cooking tops. The August 9, 2019 NOPR announced that the details of a public meeting would be provided in a subsequent notice published in the Federal Register and stated that public comments will be accepted until October 8, 2019. DOE is announcing that a public meeting will be held on October 9, 2019, which will also be available as a webinar. Given the date of the meeting, DOE is extending the public comment period for submitting comments and data on the NOPR by 14 days to October 22, 2019. DATES: Meeting: DOE will hold a public meeting on Wednesday, October 9, 2019, from 10:00 a.m. to 3:00 p.m. The meeting will also be broadcast as a webinar. In addition, the comment period for the NOPR published on August 9, 2019 (84 FR 39211), is jbell on DSK3GLQ082PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 16:53 Sep 03, 2019 extended. DOE will accept comments, data, and information regarding this proposed rulemaking received no later than October 22, 2019. ADDRESSES: The public meeting will be held at the U.S. Department of Energy, Forrestal Building, Room BE–089, 1000 Independence Avenue SW, Washington, DC 20585. Docket: The docket for this activity, which includes Federal Register notices, comments, and other supporting documents/materials, is available for review at http:// www.regulations.gov. All documents in the docket are listed in the http:// www.regulations.gov index. However, some documents listed in the index, such as those containing information that is exempt from public disclosure, may not be publicly available. The docket web page can be found at https://www.regulations.gov/ docket?D=EERE-2018-BT-TP-0004. The docket web page contains instructions on how to access all documents, including public comments, in the docket. Jkt 247001 Celia Sher, U.S. Department of Energy, Office of the General Counsel, GC–33, 1000 Independence Avenue SW, Washington, DC 20585–0121. Telephone: (202) 287–6122. Email: Celia.Sher@hq.doe.gov. For further information on how to submit a comment, review other public comments and the docket, or regarding a public meeting, contact the Appliance and Equipment Standards Program staff at (202) 287–1445 or by email: ApplianceStandardsQuestions@ ee.doe.gov. On August 9, 2019, the U.S. Department of Energy (‘‘DOE’’) published in the Federal Register a notice of proposed rulemaking (‘‘NOPR’’) and request for comment to withdraw the test procedure for conventional cooking tops. 84 FR 39211 The August 9, 2019 NOPR stated that the details of a public meeting would be provided in a subsequent notice published in the Federal Register and that public comments will be accepted until October 8, 2019. This notice announces that DOE will hold a public meeting to discuss the proposed withdrawal of the conventional cooking tops test procedures on October 9, 2019. The public meeting will also be available as a webinar. This notice extends the public comment period for submitting comments and data on the NOPR by 14 days to October 22, 2019. SUPPLEMENTARY INFORMATION: PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 46469 See section V, ‘‘Public Participation,’’ of the NOPR published on August 9, 2019, for additional information on submitting comments. Id. A. Participation in the Webinar The time and date of the webinar are listed in the DATES section at the beginning of this document. Webinar registration information, participant instructions, and information about the capabilities available to webinar participants will be published on DOE’s website: https://www.energy.gov/eere/ buildings/how-participate-or-comment. Participants are responsible for ensuring their systems are compatible with the webinar software. B. Attendance at Public Meeting The time, date, and location of the public meeting are listed in the DATES and ADDRESSES sections at the beginning of this document. If you plan to attend the public meeting, please notify the Appliance and Equipment Standards Program staff at (202) 287–1445 or by email: Appliance_Standards_Public_ Meetings@ee.doe.gov. Please note that foreign nationals visiting DOE Headquarters are subject to advance security screening procedures which require advance notice prior to attendance at the public meeting. If a foreign national wishes to participate in the public meeting, please inform DOE of this fact as soon as possible by contacting Ms. Regina Washington at (202) 586–1214 or by email: Regina.Washington@ee.doe.gov so that the necessary procedures can be completed. DOE requires visitors to have laptops and other devices, such as tablets, checked upon entry into the building. Any person wishing to bring these devices into the Forrestal Building will be required to obtain a property pass. Visitors should avoid bringing these devices, or allow an extra 45 minutes to check in. Please report to the visitor’s desk to have devices checked before proceeding through security. Due to the REAL ID Act implemented by the Department of Homeland Security (‘‘DHS’’), there have been recent changes regarding ID requirements for individuals wishing to enter Federal buildings from specific states and U.S. territories. DHS maintains an updated website identifying the State and territory driver’s licenses that currently are acceptable for entry into DOE facilities at https://www.dhs.gov/real-idenforcement-brief. Acceptable alternate forms of Photo-ID include a U.S. Passport or Passport Card; an Enhanced Driver’s License or Enhanced ID-Card E:\FR\FM\04SEP1.SGM 04SEP1

Agencies

[Federal Register Volume 84, Number 171 (Wednesday, September 4, 2019)]
[Proposed Rules]
[Pages 46460-46469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18962]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 84, No. 171 / Wednesday, September 4, 2019 / 
Proposed Rules

[[Page 46460]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 103

[CIS No. 2645-19; DHS Docket No. USCIS-2019-0006]
RIN 1615-AC36


Registration Fee Requirement for Petitioners Seeking To File H-1B 
Petitions on Behalf of Cap Subject Aliens

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security (DHS) is proposing to 
amend its regulations to require petitioners seeking to file H-1B cap-
subject petitions to pay a $10 fee for each registration they submit to 
U.S. Citizenship and Immigration Services (USCIS) for the H-1B cap 
selection process.

DATES: Written comments must be submitted on this rule on or before 
October 4, 2019. Comments on the Paperwork Reduction Act section of 
this rule (the information collections discussed therein) must be 
received on or before November 4, 2019.

ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2019-0006, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow this site's instructions for submitting comments.
     Mail: Samantha Deshommes, Chief, Regulatory Coordination 
Division, Office of Policy and Strategy, U.S. Citizenship and 
Immigration Services, Department of Homeland Security, 20 Massachusetts 
Avenue NW, Mailstop #2140, Washington, DC 20529-2140. To ensure proper 
handling, please reference DHS Docket No. USCIS-2019-0006 in your 
correspondence. Mail must be postmarked by the comment submission 
deadline. Please note that we will not accept any comments that are 
hand delivered or couriered. In addition, we will not accept any 
comments that are on removable media (e.g. thumb drives, CDs, etc.). 
All comments that are mailed must be addressed as specifically written 
above.

FOR FURTHER INFORMATION CONTACT: Brian J. Hunt, Acting Chief, Business 
& Foreign Workers Division, Office of Policy & Strategy, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
20 Massachusetts Avenue NW, Washington, DC 20529-2140, telephone (202) 
272-8377.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation
II. Background
III. Legal Authority
IV. Proposed Fee
V. Statutory and Regulatory Reviews
    A. Executive Orders 12866 and 13563 (Regulatory Planning and 
Review)
    B. Regulatory Flexibility Act
    C. Other Regulatory Requirements
    D. Expedited Comment Period
    E. Paperwork Reduction Act

I. Public Participation

    DHS invites all interested parties to participate in this 
rulemaking by submitting written data, views, or arguments on all 
aspects of this proposed rule. Comments providing the most assistance 
to DHS will reference a specific portion of the proposed rule, explain 
the reason for any recommended change, and include data, information, 
or authority that supports the recommended change.
    Instructions: All submissions should include the agency name and 
DHS Docket No. USCIS-2019-0006 for this rulemaking. Providing comments 
is entirely voluntary. Regardless of how comments are submitted to DHS, 
all submissions will be posted, without change, to the Federal 
eRulemaking Portal at http://www.regulations.gov and will include any 
personal information provided by commenters. Because the information 
submitted will be publicly available, commenters should consider 
limiting the amount of personal information provided in each 
submission. 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. For additional information, 
please read the Privacy Act notice available through the link in the 
footer of http://www.regulations.gov.
    Docket: For access to the docket, go to http://www.regulations.gov 
and enter this rulemaking's eDocket number: USCIS-2019-0006.

II. Background

    DHS is proposing to amend its regulations to charge potential 
petitioners a fee for each registration submitted for the H-1B cap 
selection process. Proposed 8 CFR 103.7(b)(1)(i)(NNN). On January 31, 
2019, DHS published a final rule requiring petitioners seeking to file 
H-1B cap-subject petitions, including those eligible for the advanced 
degree exemption, to first electronically register with USCIS during a 
designated registration period, unless the requirement is suspended 
(``H-1B registration final rule'').\1\ The H-1B registration final rule 
amended DHS regulations to codify the new registration requirement. See 
8 CFR 214.2(h)(8)(iii)(A)(1). USCIS stated in the H-1B registration 
final rule that it was suspending the registration requirement for the 
fiscal year 2020 cap season to complete required user testing of the 
new H-1B registration system and otherwise ensure the system and 
process work correctly.
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    \1\ See 84 FR 888 (Jan. 31, 2019).
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    Once USCIS implements the system and requires registration, USCIS 
will not consider an H-1B cap-subject petition to be properly filed 
unless it is based on a valid registration selection for the applicable 
fiscal year. See 8 CFR 214.2(h)(8)(iii)(A)(1) and (h)(8)(iii)(D). USCIS 
will reject or deny H-1B cap-subject petitions that are not properly 
filed. 8 CFR 214.2(h)(8)(iii)(D).

III. Legal Authority

    The Immigration and Nationality Act (INA) authorizes DHS to 
establish and collect fees for adjudication and naturalization services 
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.'' INA section 286(m), 8 U.S.C. 
1356(m). Through the collection of fees established under that 
authority, USCIS is primarily funded by immigration and naturalization 
fees charged to applicants, petitioners, and other requestors. See INA 
sections

[[Page 46461]]

286(m) and (n), 8 U.S.C. 1356(m) and (n); 8 CFR 103.7(b)(1)(i) (USCIS 
fees). Fees collected from individuals and entities filing immigration 
benefit requests are deposited into the Immigration Examinations Fee 
Account (IEFA) and used to fund the cost of processing immigration 
benefit requests.\2\ Consistent with that authority and USCIS's 
reliance on fees for its funding, DHS is proposing a fee for submitting 
H-1B registrations.
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    \2\ See 81 FR 26904, 26905 (May 4, 2016).
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IV. Proposed Fee

    DHS is proposing a $10 fee for each registration submitted to 
register for the H-1B cap selection process. Proposed 8 CFR 
103.7(b)(1)(i)(NNN). DHS regulations require petitioners seeking to 
file H-1B petitions subject to the regular cap, including those 
eligible for the advanced degree exemption, to first electronically 
register with USCIS during a designated registration period, unless the 
registration requirement is suspended. See 8 CFR 
214.2(h)(8)(iii)(A)(1). When registration is required, an H-1B cap-
subject petition must be based on a selected registration for the named 
beneficiary for the applicable fiscal year to be considered properly 
filed. 8 CFR 214.2(h)(8)(iii)(A)(1) and (h)(8)(iii)(D). Because USCIS 
operations are funded by fees collected for adjudication and 
naturalization services, and USCIS must expend resources to implement 
and maintain the registration system, DHS is proposing a fee for 
submitting H-1B registrations to recover those costs. Generally, DHS 
sets USCIS fees based on the revenue needed to recover the full cost of 
all USCIS operations, absent any known Congressional appropriations. 
See generally 81 FR 73292 (Oct. 24, 2016). DHS establishes IEFA fees by 
using a USCIS activity-based cost model for assigning all projected 
IEFA costs to specific benefit requests in a manner reasonably 
consistent with OMB Circular A-25. See OMB Circular A-25, User Charges 
(Revised), para. 6, 58 FR 38142 (July 15, 1993). USCIS costs that are 
not attributed to a specific adjudication and naturalization service 
are distributed among all fees.\3\ DHS then makes additional 
adjustments to effectuate specific policy objectives.\4\ However, when 
DHS creates new USCIS programs through separate rulemakings that 
require adjudication resources, a fee is necessary to recover the costs 
of those resources even where the exact costs are difficult to estimate 
until the program is operational. For example, DHS created the 
Application for Provisional Unlawful Presence Waiver, Form I-601A, and 
established the filing fee for the Form I-601A as the same fee as USCIS 
Form I-601, Application for Waiver of Ground of Inadmissibility, 
because the adjudication time required for both forms was thought to be 
the same. See, e.g., 77 FR 19902-01, at 19910 (Apr. 2, 2012). The 
actual burden of the Form I-601A adjudication was unknown because the 
program had not been implemented. Similarly, when DHS established the 
fee for the Application for Entrepreneur Parole, Form I-941, to recover 
the anticipated processing costs to USCIS, the fee was based on burden 
estimates and workload forecast provided by USCIS' subject matter 
experts. See, 81 FR 60130-68, at 60159 fn. 93 (Aug. 31, 2016) 
(providing that the fee would be adjusted in the future based on the 
actual average completion rate). DHS is also not establishing the H-1B 
registration fee using the same method that it uses to establish the 
overall USCIS fee schedule because, as with any totally new program, 
the costs of the registration program are difficult to project. 
Infrastructure investments generally, including information technology 
platforms, usually serve multiple programs and functions across all 
business needs for USCIS. Those types of investments are not tracked as 
costs of a specific benefit request. In this case, the H-1B 
Registration system will not be a totally separate system and will be 
established within a platform that supports other USCIS functions. 
Nevertheless, as explained below, DHS knows that the registration 
program will require USCIS to incur certain costs and burdens for 
iterative development, correcting problems, handling help desk calls, 
and adding or maintaining infrastructure. Therefore, DHS is authorized 
by INA section 286(m), 8 U.S.C. 1356(m), to recover these costs through 
a fee.
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    \3\ The USCIS model for IEFA fee calculations distributes 
indirect costs. Costs that are not assigned to specific fee-paying 
immigration benefit requests are reallocated to other fee-paying 
immigration benefit requests outside the model. For example, the 
model determines the direct and indirect costs for refugee workload. 
The costs associated with services provided for free, such as the 
refugee workload, are reallocated outside the model to fee-paying 
immigration benefit requests.
    \4\ DHS may reasonably adjust fees based on value judgments and 
public policy reasons where a rational basis for the methodology is 
propounded in the rulemaking. See FCC v. Fox Television Stations, 
Inc., 556 U.S. 502, 515 (2009); Motor Vehicle Mfrs. Ass'n v. State 
Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).
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    The H-1B registration final rule estimated that the H-1B 
registration process will be an overall cost savings to the government. 
DHS estimated that H-1B registration will save an estimated $1.6 
million annually when it is required.\5\ USCIS will, however, have to 
expend a total of about $1.5 million on the initial development of the 
registration website. This cost to the government is considered a one-
time cost. At the time, DHS recognized that there may be a need to 
recover the costs of processing registrations as well as recover costs 
of building, operating, and maintaining the registration system or 
costs from refining the registration system in the future. See 84 FR 
888, 903. DHS was not able to estimate these additional maintenance 
costs. Even if USCIS were not to collect the fee proposed in this rule, 
it would anticipate a net savings from the removal of costs associated 
with the management of the large volume of paper filings. USCIS 
continues to anticipate those cost savings. Regardless of the net 
benefits provided by the registration system over the current process, 
USCIS will still incur costs directly from operating the registration 
system. USCIS expects this $10 fee to help offset the startup costs, 
such as building the information technology platform. USCIS will not 
achieve the expected savings from the registration requirement during 
the implementation period, but USCIS will realize those savings in 
later years.
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    \5\ See 84 FR 888, 890.
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    The H-1B registration final rule also estimated that the H-1B 
registration process will result in an average undiscounted cost 
savings for all unselected petitioners ranging from $42.7 million to 
$66.8 million annually, depending on who petitioners use to submit the 
registration.\6\ In contrast, the H-1B registration final rule 
determined there would not be cost savings for petitioners whose 
registrations were selected; rather these petitioners would experience 
new opportunity costs ranging from between $6.2 million to $10.3 
million annually due to the registration requirement.\7\ In this 
proposed rule's Executive Order (E.O.) 12866 analysis, DHS estimates 
that the proposed $10 registration fee requirement would impose annual 
costs to registrants ranging from $2.3 million to $2.6 million, 
depending on who petitioners use to submit the

[[Page 46462]]

registration. The total costs to petitioners for each registration 
would range from $15.63 to $30.80 for a registration, depending on who 
the petitioner uses to submit the registration. Therefore, DHS 
acknowledges that the proposed $10 fee for H-1B registrations would 
result in a marginal increase in costs for selected petitioners, and 
that the costs for such petitioners estimated in the H-1B registration 
final rule would now range from $8.5 million to $12.9 million,\8\ 
depending on who petitioners use to submit the registration. Likewise, 
the costs savings for unselected petitioners estimated in the H-1B 
registration final rule would decrease and now range from $40.4 million 
to $64.2 million.\9\ However, the H-1B registration process, even with 
the costs associated with the proposed registration fee 
requirement,\10\ would still result in net estimated cost savings for 
all unselected petitioners.
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    \6\ Unselected petitioners are those who submitted registrations 
but whose petitions were not selected toward the regular cap or 
toward the advanced degree exemption. See 84 FR at 940. Note: 
Following publication of the H-1B registration final rule, USCIS 
recognized a calculation error. The cost figures referenced in the 
paragraph above are the corrected cost savings.
    \7\ See 84 FR at 938.
    \8\ Calculations: $6.2 million (cost to selected petitioner, 
lower bound) + $2.3 million (total costs of added registration fee, 
lower bound) = $8.5 million (cost for selected petitioner with added 
$10 registration fee, lower bound). $10.3 million (cost to selected 
petitioner, upper bound) + $2.6 million (total costs of added 
registration fee, upper bound) = $12.9 million (cost for selected 
petitioner with added $10 registration fee, upper bound).
    \9\ Calculations: $42.7 million (savings to unselected 
petitioner, lower bound)-$2.3 million (total costs of added 
registration fee, lower bound) = $40.4 million (savings for 
unselected petitioner with added $10 registration fee, lower bound). 
$66.8 million (savings to unselected petitioner, upper bound)-$2.6 
million (total costs of added registration fee, upper bound) = $64.2 
million (savings for unselected petitioner with added $10 
registration fee, upper bound).
    \10\ As explained later in the preamble, based on 2016 filings, 
every unique petitioning employer files requests for an average of 
slightly less than 5 H-1B cap-subject workers. The average 
petitioning employer therefore would incur fee costs of 
approximately $50 as a result of this proposed rule.
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    Again, there are expected to be both initial start-up costs and 
recurring costs associated with the registration process. DHS intends 
for the registration system to be ready prior to the initial 
implementation of the H-1B registration process, which may be as soon 
as the H-1B cap filing season for FY 2021.\11\ These initial costs will 
be funded by IEFA revenue from other fees. These initial costs will be 
sunk costs that will not reoccur annually.\12\
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    \11\ In the H-1B Registration final rule, DHS indicated that it 
is suspending the H-1B registration process for FY 2020, and 
indicated that it will publish a notice in the Federal Register in 
advance of the cap season in which it will first implement the H-1B 
registration process. 84 FR at 889.
    \12\ In the H-1B Registration final rule, DHS indicated that 
USCIS will have to expend a total of about $1.5 million in the 
initial development of the registration website. This cost to the 
government is considered a one-time cost. See 84 FR 888.
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    In addition to the estimated costs in the H-1B registration final 
rule, there would be recurring costs every year, such as information 
technology purchases, maintenance, and administrative costs. 
Administrative costs will include costs to implement the requirement 
that USCIS select a sufficient number of registrations, based on USCIS 
projections, for beneficiaries on whose behalf petitions will be filed 
under the H-1B regular cap or those who may be eligible for the 
advanced degree exemption from the submitted registrations. The 
selection process also includes administrative costs associated with 
monitoring the system for potential fraud and abuse (e.g. monitoring 
the system to determine if employers are submitting many registrations 
but filing petitions based on selected registrations at a significantly 
lower rate, which could reflect gaming of the system to unfairly 
improve their odds of being selected). The selection processes for the 
regular cap and the advanced degree exemption may occur multiple times 
in a fiscal year, depending on how many of the selected registrants 
file petitions.\13\ The proposed $10 fee would recover these 
reoccurring costs that were not included in the H-1B registration final 
rule.
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    \13\ The H-1B registration final rule recognizes that some 
selected registrants might not ultimately file petitions. See 84 FR 
888, 906. The final rule, therefore, provides that unselected 
registrations will remain on reserve in the system for the 
applicable fiscal year. See 8 CFR 214.2(h)(8)(iii)(A)(7). If USCIS 
determines that it needs to increase the number of registrations 
projected to meet the H-1B regular cap or advanced degree exemption 
allocation, and select additional registrations, USCIS would select 
from among the registrations that are on reserve a sufficient number 
to meet the revised projection(s) or re-open the registration period 
if additional registrations are needed to meet the revised 
projection(s). Id.
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    USCIS lacks sufficient data to estimate reoccurring costs for such 
items as associated employee salaries, benefits and training, hardware 
updates, and software maintenance.\14\ Therefore, DHS is proposing a 
$10 fee that would provide revenue to mitigate potential fiscal effects 
on USCIS.\15\ DHS estimated 192,918 H-1B cap-subject registrations 
annually.\16\ The proposed $10 fee accordingly would generate 
$1,929,180 in revenue. This registration revenue would avoid funding 
the process with other IEFA fee revenue. While DHS does not know if the 
proposed $10 fee will fully fund the recurring costs of H-1B 
registration, we believe that proposing a small fee is better than 
funding the reoccurring costs with revenue from other fees.
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    \14\ The H-1B registration process was recently established. See 
84 FR 888 (Jan. 31, 2019). While the rule went into effect on April 
1, 2019, the implementation of the registration process has been 
suspended for FY 2020 to allow USCIS to make modifications and fully 
test the electronic H-1B registration system.
    \15\ Commenters on the proposed rule stated that they were 
concerned that the system would be flooded by frivolous 
registrations. See 84 FR 899. Thus, while the purpose of the fee is 
to recover the costs of the system, the registration fee may have an 
added benefit of deterring frivolous registrations.
    \16\ See 84 FR at 925.
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    The U.S. Government Accountability Office (GAO), an independent, 
nonpartisan agency that works for Congress, describes equity of federal 
user fees \17\ as a balancing act between two principles:
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    \17\ U.S. Government Accountability Office, Federal User Fees: A 
Design Guide (May 29, 2008), available from https://www.gao.gov/products/GAO-08-386SP, visited Mar. 14, 2019.
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     Beneficiary-pays; and
     Ability-to-pay.
    Under the beneficiary-pays principle, the beneficiaries of a 
service pay for the cost of providing that service. If the general 
public benefits from the service, then taxes should pay for it. If a 
small subset of people benefit, then users should pay a fee for it. See 
GAO-08-386SP at pg. 7-12.
    Under the ability-to-pay principle, those who are more capable of 
bearing the burden of fees should pay more for the service than those 
with less ability to pay. IEFA fee exemptions, fee waivers, and reduced 
fees for low income households adhere to this principle. See generally 
8 CFR 103.7(b)(1), (c) (USCIS fees, exemptions and waivers). 
Applicants, petitioners, and requesters who pay a fee cover the cost of 
processing requests that are fee-exempt, fee-waived, or fee-reduced.
    DHS believes the proposed $10 registration fee adheres to both of 
these user fee principles. Because this fee is designed to offset costs 
occurring with the new H-1B registration process, applying this fee at 
the point-of-registration on a per registration basis ensures that the 
fee is incurred by users specifically benefitting from the use of the 
registration system--the beneficiary pays principle. DHS also believes 
that a $10 registration fee adheres to the ability-to-pay-principle 
because H-1B petitioners have demonstrated an ability and willingness 
to incur significant filing fees to petition for H-1B nonimmigrant 
workers. H-1B petitioners currently pay a $460 filing fee per petition. 
In addition to the filing fee, certain H-1B petitions may have to pay 
up to $6,000 in statutory fees. DHS does not have the authority to 
adjust the amount of these statutory fees. USCIS does not keep most of 
the revenue. CBP receives 50 percent of the $4,000 9-11 Response and 
Biometric Entry-Exit fee and the remaining 50 percent is deposited into 
the General Fund of the

[[Page 46463]]

Treasury. USCIS retains 5 percent of the $1,500 or $750 American 
Competitiveness and Workforce Improvement Act (ACWIA) fee. The 
remainder goes to the Department of Labor and the National Science 
Foundation. USCIS keeps one third of the $500 Fraud Detection and 
Prevention fee, while the remainder is split between the Department of 
State and the Department of Labor. These statutory fees are in addition 
to the current Form I-129 fee of $460 and optional premium processing 
fee of $1,410.\18\ Given the significant amount of fees H-1B 
petitioners already incur, DHS believes that the proposed $10 
registration fee is de minimis and consistent with the ability-to-pay-
principle.
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    \18\ See USCIS, H and L Filing Fees for Form I-129, Petition for 
a Nonimmigrant Worker, https://www.uscis.gov/forms/h-and-l-filing-fees-form-i-129-petition-nonimmigrant-worker (last updated/reviewed 
Feb. 20, 2018).
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    DHS acknowledges that if the proposed $10 fee is more than the cost 
to administer the registration process, then the fee would not adhere 
to the beneficiary-pays principle. In that case, the proposed $10 fee 
would subsidize other IEFA fees. Once the process is in place, USCIS 
will monitor registration volume and level of effort associated with 
registration selection. In accordance with the requirements and 
principles of the Chief Financial Officers Act (CFO Act) of 1990, 31 
U.S.C. 901-03 and Office of Management and Budget (OMB) Circular A-25, 
USCIS conducts biennial reviews of the non-statutory fees deposited 
into the IEFA and proposes fee adjustments if necessary to ensure full 
cost recovery. If a registration fee is finalized as proposed, USCIS 
would evaluate the data on the registration fee during future biennial 
fee reviews to determine whether a fee adjustment is necessary to 
ensure full cost recovery.

V. Statutory and Regulatory Reviews

A. Executive Orders 12866 (Regulatory Planning and Review), and 13563 
(Improving Regulation and Regulatory Review)

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs, benefits, and transfers 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.
    The Office of Information and Regulatory Affairs (OIRA) has 
designated this rule a ``significant regulatory action''--although not 
an economically significant regulatory action--under section 3(f) of 
Executive Order 12866. Accordingly, OIRA has reviewed this rule.
1. Summary
    DHS is proposing to amend its regulations to require a fee for each 
registration submitted to register for the H-1B cap selection process. 
DHS is proposing a fee of $10 per registration to recover some of the 
costs that are associated with implementing and maintaining the H-1B 
cap registration system. USCIS has suspended the registration 
requirement for the FY 2020 H-1B cap selection process. DHS recognizes 
that the registration requirement was established to provide efficiency 
savings to both USCIS and H-1B cap-subject petitioners associated with 
the current paper-based petitioning process. In the H-1B registration 
final rule, DHS estimated significant cost savings for both USCIS and 
those H-1B petitioners. DHS stands by that analysis and believes that 
USCIS would still reap significant efficiency and cost savings when 
comparing an electronic registration process relative to the current 
paper filing process. DHS acknowledges that the $10 registration fee 
would reduce some of the estimated cost savings for unselected H-1B 
cap-subject petitioners as described in the H-1B registration final 
rule. As discussed in the Regulatory Review section, DHS does not 
believe that the proposed registration fee would significantly factor 
into the decision-making of potential H-1B petitioners, nor does DHS 
believe that the proposed fee would be perceived as being cost-
prohibitive by these potential H-1B petitioners. After the registration 
requirement is implemented and reviewed over the coming years, and if 
the proposed registration fee is finalized, DHS would consider the 
costs associated with the system as required during biennial fee 
reviews and adjust the registration fee accordingly via notice-and-
comment rulemaking.
2. Analysis of Costs and Benefits
    When registration is required, all petitioners seeking to file an 
H-1B cap-subject petition, including those eligible for the advanced 
degree exemption, must first electronically register with USCIS during 
a designated registration period. A separate registration must be 
submitted for each worker on whose behalf a petitioner seeks to file an 
H-1B cap-subject petition. Only those petitioners whose registrations 
are selected will be eligible to file an H-1B cap-subject petition 
during an associated filing period for the applicable fiscal year. 
Under this proposed rule, each registration would require the $10 
proposed registration fee, which would be due and payable at the time 
of registration submission. A registration would not be considered as 
properly submitted until the fee is paid.\19\ In the analysis 
accompanying the H-1B registration final rule, DHS estimated that 
192,918 H-1B cap-subject registrations will be submitted annually based 
on 5-year historical average Form I-129 petition filings.\20\ That 
estimate will form the baseline for the analysis of costs associated 
with the $10 registration fee being proposed. As DHS acknowledged in 
the H-1B registration final rule, the use of this historical average to 
form the baseline estimate does not factor in the possibility that the 
registration's lower barrier to entry could result in increasing the 
number of registrations that USCIS receives.\21\ To account for this 
possibility, this analysis will present a range analysis of annual 
costs up through an escalator of 30 percent increase over the baseline 
estimate.
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    \19\ See 8 CFR 103.2(a)(1) and 8 CFR 214.2(h)(8)(iii)(A)(1).
    \20\ See 84 FR at 925.
    \21\ Id.
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    Table 1 presents the annual, undiscounted, aggregate costs 
associated with the proposed $10 registration fee using a range of 
escalations over the baseline estimate of registrations.

[[Page 46464]]



       Table 1--Undiscounted Aggregate Cost Estimates by Projected
                              Registrations
------------------------------------------------------------------------
                                        Number of        Annual cost--
                                      registrations       undiscounted
------------------------------------------------------------------------
Baseline..........................            192,918         $1,929,180
Baseline Plus 10%.................            212,210          2,122,100
Baseline Plus 20%.................            231,502          2,315,020
Baseline Plus 30%.................            250,793          2,507,930
------------------------------------------------------------------------

    USCIS is required to review the cost of its operations on a 
biennial basis and recommend fee adjustments as necessary. USCIS may 
adjust the filing fees for immigration benefits and services through 
notice-and-comment rulemaking. DHS used a 5-year period of analysis to 
account for a potential time lag of the fee review and the actual 
adjustment that occurs during the rulemaking cycle. Therefore, it is 
reasonable to conclude that a 5-year period would be a sufficient 
period for DHS to base the analysis of the estimated impact of this 
proposed registration fee.
    In addition to the $10 registration fee, USCIS projects there would 
be a 7-minute additional time burden associated with reading the 
instructions and completing the electronic fee payment. In the H-1B 
registration final rule, DHS monetized time burdens based on who is 
expected to submit the registration: A human resource (HR) specialist; 
an in-house lawyer; or an outsourced lawyer.\22\ The relevant wage is 
currently $32.11 \23\ per hour for an HR specialist and $69.34 \24\ per 
hour for an in-house lawyer. DHS accounts for worker benefits when 
estimating the opportunity cost of time by calculating a benefits-to-
wage multiplier using the Department of Labor, BLS report detailing the 
average employer costs for employee compensation for all civilian 
workers in major occupational groups and industries. DHS estimates that 
the benefits-to-wage multiplier is 1.46 and, therefore, is able to 
estimate the full opportunity cost per applicant, including employee 
wages and salaries and the full cost of benefits such as paid leave, 
insurance, and retirement.\25\ DHS multiplied the average hourly U.S. 
wage rate for HR specialists and lawyers by 1.46 to account for the 
full cost of employee benefits and overhead, for a total of $46.88 \26\ 
per hour for an HR specialist and $101.24 \27\ per hour for an in-house 
lawyer. DHS recognizes that a firm may choose, but is not required, to 
outsource the preparation of these petitions and, therefore, has 
presented two wage rates for lawyers. To determine the full opportunity 
costs if a firm hired an outsourced lawyer, DHS multiplied the average 
hourly U.S. wage rate for lawyers by 2.5 for a total of $173.35 \28\ to 
approximate an hourly billing rate for an outsourced lawyer.\29\ The 
monetized equivalent time burden for 7 minutes (0.12 hours) is 
$5.63,\30\ $12.15,\31\ and $20.80 \32\ for an HR specialist, in-house 
lawyer, and outsourced lawyer, respectively.
---------------------------------------------------------------------------

    \22\ See 84 FR at 929.
    \23\ Bureau of Labor Statistics, U.S. Department of Labor, 
``Occupational Employment Statistics, May 2018, Human Resources 
Specialist'': https://www.bls.gov/oes/2018/may/oes131071.htm. 
Visited April 26, 2019.
    \24\ Bureau of Labor Statistics, U.S. Department of Labor, 
``Occupational Employment Statistics, May 2017, Lawyers'': https://www.bls.gov/oes/2018/may/oes231011.htm. Visited April 26, 2019.
    \25\ The benefits-to-wage multiplier is calculated as follows: 
(Total Employee Compensation per hour)/(Wages and Salaries per 
hour). See Economic News Release, U.S. Dep't of Labor, Bureau of 
Labor Statistics, 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 
(September 2018), available at https://www.bls.gov/news.release/archives/ecec_12142018.pdf (viewed March 8, 2019). The ECEC measures 
the average cost to employers for wages and salaries and benefits 
per employee hour worked.
    \26\ Calculation: $32.11 * 1.46 = $46.88 total wage rate for HR 
specialist.
    \27\ Calculation: $69.34 * 1.46 = $101.24 total wage rate for 
in-house lawyer.
    \28\ Calculation: $69.34 * 2.5 = $173.35 total wage rate for an 
outsourced lawyer.
    \29\ See 83 FR at 24914 (May 31, 2018). The DHS analysis in, 
``Exercise of Time-Limited Authority To Increase the Fiscal Year 
2018 Numerical Limitation for the H-2B Temporary Nonagricultural 
Worker Program'' used a multiplier of 2.5 to convert in-house 
attorney wages to the cost of outsourced attorney wages. DHS 
believes the methodology used in the Final Small Entity Impact 
Analysis remains sound for using 2.5 as a multiplier for outsourced 
labor wages in this rule.
    \30\ Calculation: $46.88 hourly wage rate for HR specialist * 
0.12 hours = $5.63.
    \31\ Calculation: $101.24 hourly wage rate for in-house lawyer * 
0.12 hours = $12.15.
    \32\ Calculation: $173.35 hourly wage rate for outsourced lawyer 
* 0.12 hours = $20.80.
---------------------------------------------------------------------------

    Based on a review of historical filings, USCIS determined that 
approximately 75 percent of H-1B cap-subject petitions are filed by an 
attorney or accredited representative.\33\ This analysis will carry 
that finding forward in estimating the time burden costs for complying 
with the proposed registration fee requirement. In other words, the 
analysis of time burden costs presented assumes that 25 percent of the 
registrations will be completed by an HR specialist or representative, 
and 75 percent of the registrations will be completed by an attorney, 
either in-house or outsourced. Table 2 presents the annual, 
undiscounted, time burden or opportunity costs associated with paying 
the registration fee electronically, assuming 7 minutes of time burden, 
over a range of estimated numbers of registrations and according to who 
submits the H-1B registration.
---------------------------------------------------------------------------

    \33\ See 84 FR at 925.
    \34\ Calculation: Number of Registrations * 25 percent * $5.63 
(figures presented in the table are rounded to the nearest dollar).
    \35\ Calculation: Number of Registrations * 75 percent * $12.15 
(figures presented in the table are rounded to the nearest dollar).
    \36\ Calculation: Number of Registrations * 75 percent * $20.80 
(figures presented in the table are rounded to the nearest dollar).

     Table 2--Annual Time Burden Cost (Undiscounted) by Projected Registrations & Type of Submitter, Rounded
----------------------------------------------------------------------------------------------------------------
                                          Number of        HR Specialist     In-house lawyer   Outsourced lawyer
                                        registrations           \34\               \35\               \36\
----------------------------------------------------------------------------------------------------------------
Baseline............................            192,918           $271,532         $1,757,965         $3,009,521
Baseline Plus 10%...................            212,210            298,686          1,933,764          3,310,476
Baseline Plus 20%...................            231,502            325,839          2,109,562          3,611,431
Baseline Plus 30%...................            250,793            352,991          2,285,351          3,912,371
----------------------------------------------------------------------------------------------------------------


[[Page 46465]]

    Note that the cost estimates in Table 2 are overstated because they 
do not account for the scenario of fewer unique entities submitting 
registrations for multiple workers. DHS assumes that in those cases, 
the registration submissions would be done at the same time so the fee 
payment could be bundled. The DHS analysis in the H-1B registration 
final rule found that, on average, each employer submitted five 
petitions.\37\ Thus, the estimate of undiscounted costs in Table 2, 
which is based on the assumption of one petitioning employer filing one 
petition, is likely overstated by approximately 80 percent. Estimates 
that are more likely to reflect the current business behavior of five 
petitions per employer, are presented in Table 3.
---------------------------------------------------------------------------

    \37\ See 84 FR at 948 (January 31, 2019) for the FY 2016 cohort 
of H-1B cap-subject petitions selected. Of the 95,839 petitions 
selected, there were only 20,046 unique entities that filed those 
petitions. Calculation: 95,839/20,046 = 4.78.

    Table 3--Annual Time Burden Cost (Undiscounted) by Projected Registrations & Type of Submitter, Less 80%
----------------------------------------------------------------------------------------------------------------
                                          Number of
                                        registrations      HR Specialist     In-house lawyer   Outsourced lawyer
----------------------------------------------------------------------------------------------------------------
Baseline............................            192,918            $54,306           $351,593           $601,904
Baseline Plus 10%...................            212,210             59,737            386,753            662,095
Baseline Plus 20%...................            231,502             65,168            421,912            722,286
Baseline Plus 30%...................            250,793             70,598            457,070            782,474
----------------------------------------------------------------------------------------------------------------

    Therefore, the total, undiscounted, aggregate annual costs of both 
the proposed fee and time burden costs are presented in Table 4. The 
figures in Table 4 are found by adding the proportional costs presented 
in Table 1 (i.e. assume 25% of registrations are completed by HR 
specialist and 75 percent of registrations are completed by lawyers 
either in-house or outsourced) with the estimated costs for entities 
submitting registrations in Table 3.

              Table 4--Aggregate Cost (Undiscounted) by Projected Registrations & Type of Submitter
----------------------------------------------------------------------------------------------------------------
                                                           HR specialist     In-house lawyer   Outsourced lawyer
                                          Number of      (table 3 + 25% of  (table 3 + 75% of  (table 3 + 75% of
                                        registrations         table 1)           table 1)           table 1)
----------------------------------------------------------------------------------------------------------------
Baseline............................            192,918           $536,601         $1,798,478         $2,048,789
Baseline Plus 10%...................            212,210            590,262          1,978,328          2,253,670
Baseline Plus 20%...................            231,502            643,923          2,158,177          2,458,551
Baseline Plus 30%...................            250,793            697,581          2,338,018          2,663,422
----------------------------------------------------------------------------------------------------------------

    The lower bound aggregate cost estimate of complying with the 
proposed registration fee requirement is found by summing the estimated 
cost of using an HR specialist with the cost estimate of using in-house 
lawyers to complete the registration. The upper bound aggregate cost 
estimate is found by summing the estimated cost of using an HR 
specialist with the cost estimate of using outsourced lawyers to 
complete the registration. Table 5 presents the lower bound and upper 
bound aggregate cost estimates over the projected number of 
registrations for a 5-year period, discounted at 3 and 7 percent.

           Table 5--Transfer Cost Estimates by Projected Registrations Over 5-Year Period, Discounted
                                                  at 3% and 7%
----------------------------------------------------------------------------------------------------------------
                                                   5-year discounted costs, 3%,    5-year discounted costs, 7%,
                                     Number of             ($ millions)                    ($ millions)
                                   registrations ---------------------------------------------------------------
                                                    Lower bound     Upper bound     Lower bound     Upper bound
----------------------------------------------------------------------------------------------------------------
Baseline........................         192,918           $10.7           $11.8            $9.6           $10.6
Baseline Plus 10%...............         212,210            11.8            13.0           105.0            11.7
Baseline Plus 20%...............         231,502            12.8            14.2            11.5            12.7
Baseline Plus 30%...............         250,793            13.9            15.4            12.4            13.8
----------------------------------------------------------------------------------------------------------------

    As discussed previously, while this proposed fee may not recover 
the full costs associated with implementing and maintaining the H-1B 
registration system, it would allow for USCIS to recover some of the 
costs, thus lessening the fiscal impact to USCIS. DHS does not 
anticipate this proposed registration fee to represent a significant 
business expense for those employers that seek to employ cap-subject H-
1B workers. The total costs for each registration would range from 
$15.63 to $30.80 for a registration, depending on who the petitioner 
uses to submit the registration. Even with this proposed registration 
fee requirement, as discussed previously in the preamble, the 
registration process is still anticipated to result in a net benefit

[[Page 46466]]

relative to the paper-based petition process.
    This proposed fee may also provide some unquantified benefits to 
the extent that the fee may deter frivolous registrations. DHS makes no 
conclusions on the impact that a $10 fee would have on the number of 
registrations and has no way to estimate such an impact. As stated in 
the H-1B registration final rule, however, commenters on the H-1B 
registration proposed rule expressed various concerns about potential 
``flooding'' of the registration system. While there is no way to 
estimate if a small fee would further deter such acts, beyond the 
measures identified in the H-1B registration final rule (e.g., the 
attestation requirement), DHS believes that it is reasonable to 
conclude that the existence of a $10 fee would reduce the likelihood 
that frivolous registrations would be submitted to flood or otherwise 
game the registration system. In any event, such a benefit would only 
be tangential to the fee's primary purpose of recovering USCIS costs.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, Public Law 104-121 (March 29, 1996), requires Federal agencies to 
consider the potential impact of regulations on small entities during 
the development of their rules. The term ``small entities'' comprises 
of small businesses, not-for-profit organizations that are not dominant 
in their fields, and governmental jurisdictions with populations of 
less than 50,000. An ``individual'' is not defined by the RFA as a 
small entity and costs to an individual from a rule are not considered 
for RFA purposes. In addition, the courts have held that the RFA 
requires an agency to perform a regulatory flexibility analysis of 
small entity impacts only when a rule directly regulates small 
entities. Consequently, any indirect impacts from a rule to a small 
entity are not considered as costs for RFA purposes.
    This proposed rule would have direct impacts to those entities that 
petition on behalf of H-1B cap-subject workers. Generally, H-1B 
petitions are filed by a sponsoring employer; by proxy, once the online 
registration requirement is implemented, registrations would likewise 
be submitted by a sponsoring employer or their authorized 
representative. The employer intending to petition for an H-1B cap-
subject worker would incur the registration fee costs of $10 per 
registration as proposed. Therefore, DHS examines the direct impact of 
this proposed rule on small entities in the analysis that follows.
    DHS estimated that approximately 78 percent of selected H-1B 
petitioners were small entities after conducting an analysis of a 
statistically significant sample.\38\ Therefore, DHS believes it is 
reasonable to carry this finding through and assume that approximately 
78 percent, a majority, of H-1B registrations would be submitted by 
small entities. Thus, for purposes of the RFA, this proposed rule would 
impact a ``substantial'' number of small entities.
---------------------------------------------------------------------------

    \38\ See 84 FR at 948-49.
---------------------------------------------------------------------------

    To determine whether the impact of the proposed registration filing 
fee would be ``significant,'' DHS must consider the estimated fee 
impacts of individual petitioning small entities. In the H-1B 
registration final rule, DHS found that the majority of petitioning 
employers tended to submit petitions for multiple employees. Based on a 
review of filings received in 2016, DHS determined that for every one 
unique petitioning employer, there were an average of 4.78 petitions 
submitted.\39\ For purposes of this analysis, DHS is rounding that 
figure up to form a baseline assumption that for every one petitioning 
employer, a total of five H-1B cap-subject workers are requested. 
Therefore, it is reasonable to conclude that on average each 
petitioning employer that is a small entity would face a total fee 
impact of $50, plus a one-time monetized time burden impact ranging 
from $5.58 to $20.47, as a result of this proposed H-1B registration 
fee.\40\
---------------------------------------------------------------------------

    \39\ See 84 FR at 948, explaining that, for the FY 2016 cohort, 
20,046 unique entities filed the 95,839 H-1B cap-subject petitions 
that were selected. Calculation: 95,839/20,046 = 4.78.
    \40\ Calculation: $10 (proposed registration fee) x 5 
registrations (one for each H-1B worker being entered into the 
registration) = $50 total fee impact for employers.
---------------------------------------------------------------------------

    In that same statistically valid sample study, DHS was able to 
determine the top 10 industries that petitioned for cap-subject H-1B 
workers.\41\ The industry data, using the North American Industry 
Classification System (NAICS), is self-reported on USCIS Form I-129, 
Petition for Nonimmigrant Worker, which petitioning employers use to 
petition for H-1B workers. Table 6 shows a list of the top 10 NAICS 
industries that submitted H-1B cap-subject petitions in the sample 
study, and the corresponding size standard according to the SBA.
---------------------------------------------------------------------------

    \41\ See 84 FR at 950.

              Table 6--Top 10 NAICS Industries Submitting Form I-129, Small Entity Analysis Results
----------------------------------------------------------------------------------------------------------------
                                                                                  Size standards  Size standards
             Rank                 NAICS code        NAICS U.S. industry title     in millions of   in number of
                                                                                      dollars        employees
----------------------------------------------------------------------------------------------------------------
1.............................          541511  Custom Computer Programming                $27.5  ..............
                                                 Services.
2.............................          541512  Computer Systems Design Services            27.5  ..............
3.............................          561499  All Other Business Support                  15.0  ..............
                                                 Services.
4.............................          541330  Engineering Services............            15.0  ..............
5.............................          511210  Software Publishers.............            38.5  ..............
6.............................          541611  Administrative Management and               15.0  ..............
                                                 General Management Consulting
                                                 Services.
7.............................          334413  Semiconductor and Related Device  ..............           1,250
                                                 Manufacturing.
8.............................          541618  Other Management Consulting                 15.0  ..............
                                                 Services.
9.............................          541690  Other Scientific and Technical              15.0  ..............
                                                 Consulting Services.
10............................          325412  Pharmaceutical Preparation        ..............           1,250
                                                 Manufacturing.
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis based on small business size standards.
Note: The Small Business Administration (SBA) has developed size standards to carry out the purposes of the
  Small Business Act and those size standards can be found in 13 CFR, section 121.201.


[[Page 46467]]

    SBA's monetary size standard is based on the average annual 
receipts of the business entity. As discussed previously, DHS has 
determined that the majority of H-1B petitioning employers would be 
classified as ``small'' for purposes of the RFA. However, comparing the 
expected total fee impact of $55.58 on the low-end for every small 
entity (assuming each entity submits approximately five registrations) 
results in a negligible cost impact relative to average annual 
receipts. In fact, for a cost of $55.58, a company would need to have 
annual receipts of only $5,558 for the cost of the fee to equal 1% of 
the annual receipts. If a company used an outsourced lawyer to petition 
for a visa at a cost of $152.35 ($30.47 filing fee plus time burden 
costs x 5 registrations) the company would need to have annual receipts 
of only $15,235 for the cost of the fee to equal 1% of the annual 
receipts.
    SBA guidance on additional measures to determine whether a rule 
would have a significant impact suggest comparing the compliance cost 
to the labor costs.\42\ In that guidance, SBA states that an impact 
could be significant if the compliance cost ``exceeds 5 percent of the 
labor costs of the entities in that sector.'' \43\ In the annual report 
to Congress on the characteristics of H-1B workers for fiscal year 
2017, USCIS determined the median annual compensation for initial 
employment across all occupations was $75,000.\44\ Furthermore, the 
median annual compensation for initial employment across known 
occupations ranged from a low of $42,000 to a high of $160,000.\45\ 
This proposed rule is estimated to result in compliance costs that 
represent much less than 5 percent of the H-1B labor costs.
---------------------------------------------------------------------------

    \42\ See U.S. Small Business Administration, A Guide for 
Government Agencies: How to Comply with the Regulatory Flexibility 
Act, The RFA threshold analysis: Can we certify? at Pg. 19, https://www.sba.gov/sites/default/files/advocacy/How-to-Comply-with-the-RFA-WEB.pdf. Visited Apr. 16, 2019.
    \43\ Id.
    \44\ See U.S. Citizenship and Immigration Services, 
Characteristics of H-1B Specialty Occupation Workers, Fiscal Year 
2017 Annual Report to Congress, at Table 11, https://www.uscis.gov/sites/default/files/reports-studies/Characteristics-of-Specialty-Occupation-Workers-H-1B-Fiscal-Year-2017.pdf. Visited Apr. 16, 2019.
    \45\ Id.
---------------------------------------------------------------------------

    Based on these findings, DHS certifies that while this proposed 
rule could impact a substantial number of small entities, the impact 
that would arise from the proposed $10 registration fee would not 
result in a significant impact. Therefore, the Secretary certifies that 
this proposal would not cause a significant impact to a substantial 
number of small entities.

C. Other Regulatory Requirements

    This proposed rule is not a ``major rule'' as defined by the 
Congressional Review Act, 5 U.S.C. 804(2), and thus is not subject to a 
60-day delay in the rule becoming effective. This action is not subject 
to the written statement requirements of the Unfunded Mandates Reform 
Act of 1995 (UMRA) (Pub. L. 104-4). Nor does it require prior 
consultation with State, local, and tribal government officials as 
specified by Executive Orders 13132 or 13175. This proposed rule also 
does not require an Environmental Assessment (EA) or Environmental 
Impact Statement (EIS). 40 CFR 1507.3(b)(2)(ii) and 1508.4. This action 
would not affect the quality of the human environment and fits within 
Categorical Exclusion number A3(d) in Dir. 023-01 Rev. 01, Appendix A, 
Table 1, for rules that interpret or amend an existing regulation 
without changing its environmental effect.

D. Expedited Comment Period

    Section 6(a)(1) of E.O. 12866 requires an agency to afford the 
public a meaningful opportunity to comment on any proposed regulation, 
which in most cases should include a comment period of not less than 60 
days. DHS has found it necessary to provide a 30-day comment period for 
this proposed rule. USCIS intends for the fee proposed in this rule to 
be in place before the H-1B registration process is initially 
implemented, which may be as soon as the H-1B cap filing season for FY 
2021.\46\ The requirements for developing, publishing and responding to 
comments on a rulemaking will require much of the time that DHS needs 
to put the fee and registration process in place, and the additional 
30-days of comment period would put DHS at risk of not having the fee 
in place before the registration period begins. The population affected 
by this rule is not vast, and the issues addressed by it are relatively 
insular. Therefore, DHS has concluded that the need for the certainty 
in having the fee established or not, justifies a 30-day comment 
period.
---------------------------------------------------------------------------

    \46\ USCIS will announce the start of the initial registration 
period at least 30 calendar days in advance of such date. See 84 FR 
at 898-99. 8 CFR 214.2(h)(8)(iii)(A)(3).
---------------------------------------------------------------------------

    As discussed in the following section, as required by 5 CFR 
1320.8(d)(1), DHS is providing a 60-day public comment period for the 
revisions to the approved collection of information that would be 
required by this rule. DHS will read, consider, draft responses, and 
revise the rule as necessary while the additional comments on the 
registration system and information collections continue to be 
received.

E. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3512, all 
agencies are required to submit to OMB, for review and approval, any 
reporting requirements inherent in a rule. DHS and USCIS invite the 
general public and other Federal agencies to comment on the impact to 
the proposed collection of information. In accordance with the PRA, the 
information collection notice is published in the Federal Register to 
obtain comments regarding the proposed edits to the respective 
information collections. DHS is revising the information collections 
for two USCIS currently approved OMB control numbers as follows.
H-1B Registration Tool
    DHS and USCIS are revising this information collection to report a 
change in the estimated annual cost to the Federal government as a 
result of the proposed rule. Additionally, the information collection 
instrument has been revised to include language about the proposed fee.
    Comments are encouraged on the proposed revisions to the 
information collection instruments and will be accepted for 60 days 
from the publication date of the proposed rule. All submissions 
received must include the OMB Control Number 1615-0144 in the body of 
the letter and the agency name. To avoid duplicate submissions, please 
use only one of the methods under the ADDRESSES and Public 
Participation section of this rule to submit comments. Comments on this 
information collection should address one or more of the following four 
points:
    (1) Evaluate whether the collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden of 
the collection of information, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology,

[[Page 46468]]

e.g., permitting electronic submission of responses.
    Overview of information collection:
    (1) Type of Information Collection: Revision of a Currently 
Approved Collection.
    (2) Title of the Form/Collection: H-1B Registration Tool.
    (3) Agency form number, if any, and the applicable component of the 
DHS sponsoring the collection: No Agency Form Number; USCIS.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Business or other for-profit. USCIS 
uses the data collected on this form to determine which employers will 
be informed that they may submit a USCIS Form I-129, Petition for a 
Nonimmigrant Worker, to petition for a beneficiary in the H-1B 
classification.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: The estimated 
total number of respondents for the information collection H-1B 
Registration Tool is 192,918 and the estimated hour burden per response 
is 0.5 hours. Any additional time burden for fee payment processing is 
captured in the information collection USCIS Electronic Fee Payment 
Processing (OMB 1615-0131).
    (6) An estimate of the total public burden (in hours) associated 
with the collection: The total estimated annual hour burden associated 
with this collection is 96,459 hours.
    (7) An estimate of the total public burden (in cost) associated 
with the collection: The estimated total cost burden for purchases of 
equipment or services to achieve compliance with the information 
collection requirements of this rule (not including providing 
information to or keeping records for the government, or kept as part 
of customary and usual business or private practices), are $0.\47\ 
There are no capital, start-up, operational or maintenance costs to 
respondents associated with this collection of information.
---------------------------------------------------------------------------

    \47\ As stated elsewhere in this rule, the annual transfer cost 
for registrants associated with the proposed $10 fee is $1,929,180.
---------------------------------------------------------------------------

USCIS Electronic Payment Processing
    DHS is revising this information collection to add an estimated 
192,918 new respondents that would be required to utilize it to pay 
their H-1B Registration fee.
    Comments are encouraged and will be accepted for 60 days from the 
publication date of the proposed rule. All submissions received must 
include the OMB Control Number 1615-0131 in the body of the letter and 
the agency name. To avoid duplicate submissions, please use only one of 
the methods under the ADDRESSES and I. Public Participation section of 
this rule to submit comments. Comments on this information collection 
should address one or more of the following four points:
    (1) Evaluate whether the collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden of 
the collection of information, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses.
    Overview of information collection:
    (1) Type of Information Collection: Revision of a Currently 
Approved Collection.
    (2) Title of the Form/Collection: USCIS Electronic Payment 
Processing.
    (3) Agency form number, if any, and the applicable component of the 
DHS sponsoring the collection: G-1450; USCIS.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Business or other for-profit. USCIS 
allows for credit card payments via Form G-1450 and via the pay.gov 
online portal. Form G-1450 facilitates credit card payments for paper-
filed benefit requests submitted through the USCIS Lockbox. Credit card 
information is collected on Form G-1450 to allow USCIS to track payment 
of the fee necessitated by the respondent's activity with USCIS, and to 
reconcile the payment received in the Treasury, Financial Management 
Service, Federal Financial Management System (FFMS) with the 
respondent's file. Credit card payments for electronically filed 
benefit requests are handled through the pay.gov online portal. USCIS 
does not receive credit card information for respondents using the 
pay.gov portal. USCIS only receives confirmation of payment and 
tracking details to allow matching of the payment with the benefit 
request filed. H-1B registrations can only be submitted electronically, 
so all H-1B registration fees will be processed through the pay.gov 
online portal.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: The estimated 
total number of respondents for the information collection USCIS 
Electronic Payment Processing, where respondents are individuals or 
households, is 1,805,284 and the estimated hour burden per response is 
0.12 hours; the estimated total number of respondents for the 
information collection Form G-1450 is 1,017,839 and the estimated hour 
burden per response is 0.12 hours; the estimated total number of 
respondents for the information collection USCIS Electronic Payment 
Processing, where respondents are businesses or other small entities, 
is 658,548 and the estimated hour burden per response is 0.12 hours.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: The total estimated annual hour burden associated 
with this collection is 417,800.52 hours.
    (7) An estimate of the total public burden (in cost) associated 
with the collection: The estimated total annual cost burden associated 
with the collection of information associated with this rulemaking, 
including purchases of equipment or services to achieve regulatory 
compliance, providing information to, or keeping records for the 
government are $0.\48\ There is no cost to respondents for paying a fee 
to USCIS.
---------------------------------------------------------------------------

    \48\ As stated elsewhere in this rule, the estimated opportunity 
cost for registrants to provide the information necessary to pay the 
proposed fee could range from $215,000 to $789,000 depending on who 
submits the payment.
---------------------------------------------------------------------------

List of Subjects in 8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(Government agencies), Freedom of information, Immigration, Privacy, 
Reporting and recordkeeping requirements.
    Accordingly, DHS is proposing to amend 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, 552a; 8 U.S.C. 1101, 1103, 1304, 
1356, 1356b, 1372; 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, 125 Stat 550.


[[Page 46469]]


0
2. Section 103.7 is amended by adding paragraph (b)(1)(i)(NNN) to read 
as follows:


Sec.  103.7   Fees.

* * * * *
    (b) * * *
    (1) * * *
    (i) * * *
    (NNN) Registration requirement for petitioners seeking to file H-1B 
petitions on behalf of cap-subject aliens. For each registration 
submitted to register for the H-1B cap or advanced degree exemption 
selection process: $10. This fee will not be refunded if the 
registration is not selected or is withdrawn.
* * * * *

Kevin K. McAleenan,
Acting Secretary.
[FR Doc. 2019-18962 Filed 9-3-19; 8:45 am]
 BILLING CODE 9111-97-P